govinfo:USCOURTS-ctd-3_17-cv-01381-1

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UNITED STATES DISTRICT COURT 
DISTRICT OF CONNECTICUT 
 
MARK J. PATANE et al., 
 Plaintiffs, 
 
 v.  
 
NESTLÉ WATERS NORTH AMERICA, 
INC., 
 Defendant. 
No. 3:17-cv-01381 (JAM) 
 
ORDER GRANTING IN PART AND DENYING IN PART  
DEFENDANT’S MOTION TO DISMISS 
 
Plaintiffs have filed this class action lawsuit alleging that defendant Nestlé Waters North 
America, Inc. fraudulently markets its Poland Spring water products as “spring water” when in 
fact it is not “spring water” as defined by law. Last year I dismissed the initial complaint without 
prejudice on the ground that its state law causes of action were all preempted by the federal 
Food, Drug, and Cosmetic Act (FDCA). See Patane v. Nestlé Waters N. Am., Inc., 314 F. Supp. 
3d 375 (D. Conn. 2018). 
Plaintiffs have now re-framed their claims and filed an amended complaint that seeks 
class action relief for consumers under the laws of nine different States. Nestlé in turn has moved 
to dismiss the amended complaint on multiple grounds.  
I will grant in part and deny in part Nestlé’s motion to dismiss. First, I decline to abstain 
on grounds of Burford abstention or under the doctrine of primary jurisdiction. Second, I 
conclude that plaintiffs’ state law claims are not preempted except for their Vermont law claims. 
Third, I decline to rule at this time on Nestlé’s “safe harbor” defense against the statutory claims 
because the record is not yet sufficient to determine the facts necessary to resolve this claim. 
Lastly, I decline on similar grounds to dismiss the common law fraud and contract claims. 
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BACKGROUND 
The amended complaint (Doc. #160) alleges state law claims on behalf of consumers in 
Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, 
Rhode Island, and Vermont. It alleges common law causes of action for fraud and for breach of 
contract as well as statutory causes of action for consumer fraud and unfair trade practices.1 It 
seeks damages for alleged misconduct dating back to 2003 as well as prospective injunctive 
relief. 
All of plaintiffs’ claims are based on a core of allegations that Nestlé has fraudulently 
labeled its Poland Spring water products as “100% Natural Spring Water” while knowing that 
the product is not “spring water” as that term is defined by law. Doc. #160 at 39 (¶ 101). 
According to plaintiffs, the multiple sites in Maine where Nestlé obtains Poland Spring water 
and that are identified by name on Poland Spring labels are not natural springs. Ibid. (¶ 102).2 
Plaintiffs allege that Nestlé has unlawfully profited from its misleading marketing of Poland 
Spring water because consumers are willing to pay a premium price for “spring water” over 
other forms of bottled water.   
                                                 
1 The state consumer statutes alleged to be violated include: Connecticut Unfair Trade Practices Act, CONN. GEN. 
STAT. ANN. §§ 42-110a–42-110q; Maine Unfair Trade Practices Act, ME. STAT. tit. 5, §§ 205-a-214; Maine Uniform 
Deceptive Trade Practices Act, ME. STAT. tit. 10 §§ 1211-1216; Massachusetts Consumer Protection Act, MASS. 
GEN. LAWS ch. 93A, §§ 1-11; New Hampshire Consumer Protection Act, N.H. REV. STAT. ANN. §§ 358-a:1–358-
a:13; New Jersey Consumer Fraud Act, N.J. STAT. ANN. §§ 56:8-1, et seq.; New York General Business Law § 349, 
N.Y. GEN. BUS. LAW § 349; New York General Business Law § 350, N.Y. GEN. BUS. LAW § 350; Pennsylvania 
Unfair Trade Practices and Consumer Protection Law, 73 P.A. STAT. §201-2, 201-3; Rhode Island Unfair Trade 
Practices and Consumer Protection Act, R.I. GEN. LAWS §§ 6-13.1-1–16-13.1-29; and Vermont Consumer Fraud 
Act, VT. STAT. ANN. tit. 9, § 2451, et seq. 
2 The amended complaint also alleges that Poland Spring labels “have misleadingly depicted a pristine mountain or 
forest spring to imply that a pure spring is the source of the water in the bottle.” Doc. #160 at 39 (¶ 103). Beca use 
the parties’ briefing does not meaningfully address any distinction to be drawn between the words that appear on the 
Poland Spring label and the imagery, I will assume for present purposes that this additional allegation is a subset of 
plaintiffs’ broader allegation that the labeling is misleading because it misrepresents Poland Spring water to be 
“spring water” as defined by law. 
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As I discussed at length in my prior ruling granting Nestlé’s motion to dismiss, the FDCA 
establishes basic definitions (known as “standards of identity”) for food products and prohibits 
the false labeling of such food products. The U.S. Food and Drug Administration (FDA) has 
promulgated a detailed regulatory definition of “spring water” that distinguishes it from other 
kinds of bottled water that may be marketed for public sale. See 21 C.F.R. § 165.110(a)(2)(vi).  
According to the FDA’s regulation, if a water product is to be labeled and sold as “spring 
water,” the water must be “derived from an underground formation from which water flows 
naturally to the surface of the earth,” and there must be a “natural force causing the water to flow 
to the surface through a natural orifice.” Ibid. The FDA’s regulation further provides that “spring 
water” can be “collected only at the spring or through a bore hole tapping the underground 
formation feeding the spring,” and that if it is collected “with the use of an external force,” the 
water must be “from the same underground stratum as the spring, as shown by a measurable 
hydraulic connection using a hydrogeologically valid method between the bore hole and the 
natural spring, and shall have all the physical properties, before treatment, and be of the same 
composition and quality, as the water that flows naturally to the surface of the earth.” Ibid.  
Following the filing of the amended complaint, Nestlé has again moved to dismiss on 
multiple grounds pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). 
DISCUSSION 
The standard that governs motions to dismiss under Rule 12(b)(1) and Rule 12(b)(6) is 
well established. A complaint may not survive unless it alleges facts that, taken as true, give rise 
to plausible grounds to sustain the Court’s subject matter jurisdiction and to sustain plaintiffs’ 
claims for relief. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Kim v. Kimm, 884 F.3d 
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98, 103 (2d Cir. 2018); Lapaglia v. Transamerica Cas. Ins. Co., 155 F. Supp. 3d 153, 155-56 (D. 
Conn. 2016).  
Burford abstention 
Nestlé argues that the Court should dismiss this action pursuant to the doctrine known as 
Burford abstention. See Burford v. Sun Oil Co., 319 U.S. 315 (1943). Burford abstention applies 
“only in extraordinary circumstances” and where a case “presents difficult questions of state law 
bearing on policy problems of substantial public import whose importance transcends the result 
in the case then at bar, or if its adjudication in a federal forum would be disruptive of state efforts 
to establish a coherent policy with respect to a matter of substantial public concern.” 
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 726-27 (1996) (cleaned up); see also Liberty 
Mut. Ins. Co. v. Hurlbut, 585 F.3d 639, 650 (2d Cir. 2009) (discussing factors for courts to 
consider when deciding whether to invoke Burford abstention, including “(1) the degree of 
specificity of the state regulatory scheme; (2) the need to give one or another debatable 
construction to a state statute; and (3) whether the subject matter of the litigation is traditionally 
one of state concern”). 
This is not the type of extraordinary case for which Burford abstention is warranted. To 
begin with, Burford abstention is most appropriate when a plaintiff seeks injunctive or 
prospective relief that would interfere with the ongoing authority of the state to apply and 
enforce its laws. See Tribune Co. v. Abiola, 66 F.3d 12, 13, 17 (2d Cir. 1995) (“[W]e hold that it 
is generally appropriate for a district court to abstain on Burford grounds only when asked to 
provide equitable relief,” and “the plaintiffs in this case have brought garden-variety claims for 
money damages . . . that present no danger of interfering with any proceeding or order of the 
New York State Workers’ Compensation Board”). Although it is true that plaintiffs here seek 
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injunctive relief, the bulk of this action is for money damages from many years of past alleged 
violations of their rights.  
So far as I can tell from the present record, even though plaintiffs challenge the integrity 
of prior regulatory actions in Maine (Doc. #160 at 273-76 (¶¶ 796-808)), the litigation of 
plaintiffs’ claim for money damages poses no danger of interfering with any ongoing regulatory 
functions of the State of Maine or any of the other States at issue in this case. If such concerns 
arise in the future, I would be prepared to consider whether appropriate action should be taken on 
the basis of a substantiated record. 
Nor does this case present difficult questions of state law where adjudication in a federal 
forum would disrupt state efforts to establish a coherent policy with respect to a matter of 
substantial public concern. For the most part, the state laws at issue merely incorporate the 
federal “spring water” standard in order to avoid being subject to preemption. “Congress and the 
FDA appear to have made a conscious choice to allow the several states to regulate bottled water 
so long as the state standards employed are identical to those adopted by the FDA. The 
requirement of identity promotes uniformity in that courts in every state look to the same 
standard.” Vt. Pure Holdings, Ltd. v. Nestlé Waters N. Am., Inc., 2006 WL 839486, at *7 (D. 
Mass. 2006).  
Accordingly, I decline to dismiss or stay this case on Burford abstention grounds. This 
ruling is without prejudice to renewal of Nestlé’s motion in the event that plaintiffs seek to 
effectuate any judgment for injunctive relief or to otherwise take action that would obstruct or 
impede any state authority’s ongoing administration of the law. 
  
 
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 Primary jurisdiction 
Nestlé argues that “the Court should dismiss this action in deference to the primary 
jurisdiction of the FDA to exercise its expertise and authority to determine in the first instance 
whether Poland Spring Water meets the FDA Identity Standard.” Doc. #164 at 3. The doctrine of 
primary jurisdiction seeks to “promot[e] proper relationships between the courts and 
administrative agencies charged with particular regulatory duties,” and it applies when 
“enforcement of the claim requires the resolution of issues which, under a regulatory scheme, 
have been placed within the special competence of an administrative body.” Ellis v. Tribune 
Television Co., 443 F.3d 71, 81 (2d Cir. 2006) (internal citations and quotations omitted). While 
there is “[n]o fixed formula” for deciding when to invoke the doctrine, courts generally examine 
whether the case involves “technical or policy considerations within the agency’s particular field 
of expertise,” and “whether the question at issue is particularly within the agency’s discretion,” 
among other factors. Id. at 82-83 (internal citations omitted).  
The Second Circuit has cautioned that the primary jurisdiction doctrine has a “relatively 
narrow scope,” and does not apply when the claim involves matters within the “traditional realm 
of judicial competence.” Goya Foods, Inc. v. Tropicana Prods., Inc., 846 F.2d 848, 851 (2d Cir. 
1988). When the primary jurisdiction doctrine does apply, a court will either stay the case or 
dismiss it without prejudice. See Johnson v. Nyack Hosp., 86 F.3d 8, 11 (2d Cir. 1996). 
According to a letter from the FDA that Nestlé has previously submitted as part of the 
record, the “FDA does not provide approval for the use of the term ‘spring water’ for bottled 
water,” and “recognize[s] that some states have certification programs that evaluate whether 
bottled water may be designated as ‘spring water’ under state regulations that incorporate FDA’s 
requirements under 21 C.F.R. § 165.110.” Doc. #53-3 at 5-6. This letter suggests that the FDA 
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leaves it to the States to decide if particular water products meet the federal “spring water” 
standard. Although Nestlé now urges me to allow the FDA to determine whether Poland Spring 
Water meets the federal standard, Doc. #164 at 3, the letter from the FDA that Nestlé has 
submitted raises significant doubt in my mind about whether the FDA stands ready and willing 
to make some kind of case-specific determination that might advance the litigation here. It does 
not appear that Nestlé has yet invited a team of expert FDA investigators to come inspect its 
properties and issue a ruling on whether all of its sites comply with federal “spring water” 
requirements. 
Moreover, the federal definition of “spring water” is now well established, and Nestlé 
does not suggest that this definition is under active federal review. This is not a case where there 
are reasons to conclude that the FDA is in the throes of rulemaking or poised anytime soon to 
refine definitional aspects of its “spring water” rule. Compare In re KIND LLC “Healthy & All 
Nat.” Litig., 209 F. Supp. 3d 689, 697 (S.D.N.Y. 2016) (staying case in light of FDA 
announcement of ongoing rulemaking regarding the use of the term “natural” on food labels), 
with In re KIND LLC “Healthy & All Nat.” Litig., 2019 WL 542834, at *4 (S.D.N.Y. 2019) 
(lifting same stay in light of years-long delay by FDA action to promulgate rule). 
Accordingly, I decline to dismiss or stay this case on primary jurisdiction grounds. Nestlé 
has not shown adequate reason to believe that any kind of referral to the FDA would advance 
this litigation and do so without occasioning needless delay.  
Preemption  
Nestlé argues that plaintiffs’ newly alleged causes of action are all preempted by federal 
law. In my ruling on Nestlé’s prior motion to dismiss, I explained at length the governing 
preemption principles for state law claims that allege fraudulent or wrongful labeling of products 
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for which the FDCA defines an “identity standard.” I explained how a court must conduct a dual 
evaluation of any state law claim to determine if it is either expressly preempted under 21 U.S.C. 
§ 343-1(a)(1) by reason of its departing from the federal law standard, or impliedly preempted 
under 21 U.S.C. § 337(a) by reason of it effectively amounting to a cause of action based on no 
more than a violation of federal law. See Patane, 314 F. Supp. 3d at 384-86. “The upshot,” as I 
concluded, “is that only a narrow range of state law claims involving mislabeling of ‘spring 
water’ may escape preemption by the FDCA. In order to survive preemption, a state law claim 
must rely on an independent state law duty that parallels or mirrors the FDCA’s requirement for 
‘spring water,’ but must not solely and exclusively rely on violations of the FDCA’s own 
requirements.” Id. at 386. 
In other words, a court must first determine if the state law standard that is relied on by a 
plaintiff mirrors the federal law identity standard. Then a court must determine if the state law 
standard is indeed an independent legal standard, even if the State has chosen simply to mirror 
or track the standard already set forth by the FDCA.  
As I explained, “[i]t is one thing for a State . . . to outright adopt an FDCA standard and 
then for a plaintiff to sue under state law for the violation of that standard. But it is wholly 
another thing for a State not to adopt or mirror an FDCA standard and then for a plaintiff to sue 
under a generic state law claim (such as for fraud, breach of contract, or unfair trade practices) 
that would not be actionable absent a violation of the FDCA standard.” Id. at 386-87. Thus, “a 
plaintiff may not simply dress up a generic state law claim of wrongful conduct to prosecute 
conduct that is ‘wrong’ only because it happens to violate the federal law requirements of the 
FDCA.” Id. at 386. 
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In light of this framework, I dismissed plaintiffs’ claims, concluding in light of how they 
were specifically alleged in the complaint that they did not rest on any independent state law 
standard but solely and exclusively on federal law. Id. at 387-88. On the other hand, I explained 
how certain types of state law claims are not preempted if they are based on an independent state 
law duty, even if the State has chosen merely to incorporate or otherwise track a federal law 
standard. Thus, for example, a claim that arises under California’s food-and-drug statute that 
expressly incorporated FDCA standards was not preempted, because it “mirrored in substance 
the FDCA’s requirements,” while also being based on “an independent state law duty, such that 
it could not be said that the claim was merely an attempt to enforce the FDCA.” Id. at 386 (citing 
In re Farm Raised Salmon Cases, 175 P.3d 1170, 1175-1184 (Cal. 2008) and In re Trader Joe’s 
Tuna Litig., 289 F. Supp. 3d 1074, 1082-85 (C.D. Cal. 2017)). 
That brings me now to Nestlé’s renewed motion to dismiss on preemption grounds. In 
contrast to the prior version of the complaint, the amended complaint now alleges specific state 
law provisions from each of nine States that plaintiffs contend are the independent state law 
standards that give rise to each of their statutory causes of action for unfair trade practices. 
 Before I review the laws of each one of these States, it is important to clarify to what 
degree any state standard must mirror or be identical to the federal standard. As defined by the 
FDA, the statutory phrase “not identical” contemplates differences in meaning as opposed to 
differences in words. 
“Not identical to” does not refer to the specific words in the requirement but instead 
means that the State requirement directly or indirectly imposes obligations or contains 
provisions concerning the composition or labeling of food, or concerning a food 
container, that: 
 
(i) Are not imposed by or contained in the applicable provision (including any 
implementing regulation) of section 401 or 403 of the act; or 
 
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(ii) Differ from those specifically imposed by or contained in the applicable provision 
(including any implementing regulation) of section 401 or 403 of the act. 
 
21 C.F.R. § 100.1(c)(4)(i)-(ii) (emphasis added); In re PepsiCo, Inc., Bottled Water Mktg. & 
Sales Practices Litig., 588 F. Supp. 2d 527, 532 (S.D.N.Y. 2008). To similar effect, the Supreme 
Court has made clear that “[i]n undertaking a pre-emption analysis at the pleadings stage of a 
case, a court should bear in mind the concept of equivalence,” and that “[t]o survive pre-emption, 
the state-law requirement need not be phrased in the identical language as its corresponding 
[federal] requirement,” and “[i]f a case proceeds to trial, the court’s jury instructions must ensure 
that nominally equivalent labeling requirements are genuinely equivalent.” Bates v. Dow 
Agrosciences LLC, 544 U.S. 431, 454 (2005). 
The laws in five of the States that are named in the complaint—Massachusetts, New 
Hampshire, New Jersey, Pennsylvania, and Rhode Island—expressly incorporate the federal 
standard without material changes in wording: 
• Massachusetts. Under Massachusetts law, “[t]he term ‘spring,’ ‘springs,’ or ‘spring 
water’ shall not be used as a product name or a brand name on a label unless the 
water source meets the definition of spring water in 21 CFR § 165.110(a)(2)(vi).” 105 
MASS. CODE REGS. 500.090(I)(2).  
• New Hampshire. The law of New Hampshire provides that “‘[s]pring water’ means 
‘spring water’ as defined in 21 CFR 165.110 (a)(2)(vi), namely ‘water derived from 
an underground formation from which water flows naturally to the surface of the 
earth.’” N.H. CODE ADMIN. R. HE-P 2101.01(ab). The Code further provides that 
“[a]ll labeling shall be in compliance with . . . federal bottled water regulations 21 
CFR Part 165.110,” id. at § 2104.1, and sets forth a series of conditions for spring 
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water that quote directly from the federal standard, with no changes or additions, id. 
at § 2102.03. 
• New Jersey. The New Jersey administrative code states that “[b]ottled water shall be 
labeled and conform with the nomenclature established under 21 CFR 165.110(a) 
(identity).” N.J. ADMIN. CODE § 8:21-5.5(a). The regulation further provides that 
“[p]roducts which are not in conformance with the above referenced bottled drinking 
water labeling requirements shall be deemed misbranded as defined at N.J.S.A. 24:5-
16 and 17.” Ibid. 
• Pennsylvania. Under Pennsylvania law, “[a] food shall be misbranded…[i]f it is 
represented as a food for which a definition and standard of identity has been 
prescribed by regulation under this subchapter or under any of the Federal acts, unless 
it conforms to the definition and standard…” 3 PA. CONS. STAT. § 5729(a)(6). 
Another state statute prohibits the state from promulgating food labeling regulations 
that would “cause a food to be in violation of any applicable requirements under the 
Federal acts.” 3 PA. CONS. STAT. § 5736(a)(4). 
• Rhode Island. The law of Rhode Island affirmatively adopts the standards of identity 
set forth in 21 C.F.R. Part 165. See 216 R.I. CODE R. § 50-10-4.3(A)(3)(s). Rhode 
Island law also states that “[a]ll nonalcoholic beverage, drink, or juice regulations and 
any amendments to them adopted pursuant to the Federal Food, Drug and Cosmetic 
Act, 21 U.S.C. § 301 et seq., are the bottled beverage regulations in this state.” R.I. 
GEN. LAWS § 21-23-4.3  
                                                 
3 While the latter statute authorizes the state health department to adopt additional regulations, the parties have not 
identified any other state regulations on bottled water that would be expressly preempted by federal law.  
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The laws of three more States—Connecticut, Maine, and New York—affirmatively adopt 
spring water standards but include at least some language that does not also appear in the federal 
standard: 
• Connecticut. Under Connecticut law, “‘[s]pring water’ means natural water obtained 
from an underground formation from which water flows naturally to the surface of 
the earth[.]” CONN. GEN. STAT. § 21a-150(14). The words “natural water obtained 
from” do not appear in the federal standard, but the rest of the sentence appears in 
both the state and federal laws. Connecticut law also provides that “[a] bottler shall 
collect spring water at a spring or through a hole bored adjacent to the place where a 
spring emerges from the ground. A bottler may use external force to collect spring 
water, provided such force does not alter the composition or quality of such water.” 
CONN. GEN. STAT. § 21a-150e(c). This language is not identical to the federal spring 
water identity standard, which does not use the words “bottler” or “adjacent,” but 
does provide that “spring water collected with the use of an external force shall . . . be 
of the same composition and quality, as the water that flows naturally to the surface 
of the earth.” 21 C.F.R. § 165.110(a)(vi).4 
                                                 
4 Defendants claim that § 21a-150e(c) does not apply here because it “does not define spring water” and instead 
“provides for how the water that meets the Connecticut definition of spring water is to be collected in order to be 
certified for sale as bottled water by the Connecticut Department of Consumer Protection.” Doc. #164-1 at 48. I 
disagree. While the statute doesn’t use the word “define,” it describes the process by which spring water may be 
removed from the ground—an issue at the heart of what constitutes spring water under the federal standard. See 
CONN. GEN. STAT. § 21a-150e(c) (“A bottler may use external force to collect spring water, provided such force 
does not alter the composition or quality of such water.”). 
 Defendants also claim that the Connecticut water identity standard is expressly preempted because the FDA 
explicitly rejected the use of the word “adjacent” in the federal standard. Doc. #164-1 at 26 (citing 60 Fed. Reg. 
57,076, 57,093 (Nov. 13, 1995) (The “FDA concludes that the requirement of a measurable hydraulic connection 
between the bore hole and the spring’s natural orifice adequately encompasses the intent of the proposed adjacency 
requirement. Therefore, the agency is deleting the requirement in §165.110(a)(2)(vi) that the bore hole be adjacent to 
the point of emergence of a spring.”)). Given the pleading standard of substantive equivalence, there is no cause at 
this stage for me to decide whether the use of the word “adjacent” renders the state statute expressly preempted 
where the FDA has elected to use different words to “encompass[] the intent” of an adjacency requirement. 
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• Maine. The law of Maine expressly references the federal identity water standard and 
describes spring water as “water derived from an underground formation from which 
water flows naturally to the surface of the earth.” 10-144-231 MAINE CODE R. § 2. 
Maine law also uses language to describe spring water that is not present in the 
federal standard, such as an explanation of how a “water chemistry comparison is 
typically performed.” Ibid. 
• New York. Under New York law, “[s]pring water shall mean water derived from an 
underground formation from which water flows naturally to the surface of the earth.” 
10 N.Y.C.R.R. § 5-6.3(s). This exact language also appears in the federal standard. 
The New York law also includes language that is very similar to but not exactly the 
same as the federal standard. For example, in New York, “[s]pring water shall be 
collected only at the natural orifice of the spring or through a bore hole that is 
adjacent to the natural orifice,” id. at § 5-6.4(c)(5), while under the federal standard, 
“[s]pring water shall be collected only at the spring or through a bore hole tapping the 
underground formation feeding the spring,” 21 C.F.R. § 165.110(a)(vi). 
While there may be some differences between the language in the laws of these eight 
States and the wording of the federal identity standard, it appears that the state standards are 
substantively equivalent to the federal law standard. See Bates, 544 U.S. 454. It would be 
premature to dismiss any of the claims, especially in the absence of any indication that plaintiffs 
intend to rely on any particular portion of the state statutory language that may arguably depart 
from the federal standard. 
A different conclusion follows for Vermont which has not affirmatively adopted the 
federal “spring water” standard or an equivalent requirement. Plaintiffs identify only a general 
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consumer protection statute, which does not mention spring water, along with two statutory 
provisions authorizing the Secretary of the Agency of Natural Resources to establish rules or 
requirements for drinking water quality and public water systems and requiring sellers of bottled 
water to provide various certifications. Doc. #160 at 28, 305-306 (citing VT. STAT. ANN. tit. 9, § 
2451, et seq.; tit. 10, ch. 56, §§ 1672(b) and 1673(f)). Though the latter two provisions involve 
water, and § 1673(f) requires that importers of bottled drinking water identify “the name, source 
and the location of the bottler of spring, artesian, or municipal water,” neither provision 
expressly defines spring water or affirmatively adopts the federal standard.  
Similarly, Vermont law provides that “[a] bottler of spring or artesian water may apply to 
the Secretary of Agriculture, Food and Markets for a specially designated identification label to 
indicate that the water originated and was bottled in Vermont and that it complies with any 
quality requirements adopted by the Agency.” 6 V.S.A. § 2964a. Plaintiffs do not cite any 
regulatory standards promulgated for spring water pursuant to this statute. 
Plaintiffs argue that, because Vermont requires out-of-state bottled water sellers to be 
certified by the regulatory agency with jurisdiction over the sellers, VT. STAT. ANN. tit. 10, §§ 
1672(b) and 1673(f), which in this case is Maine, and because Maine regulators apply the Maine 
identity standard, which in turn is the same as the federal standard, Vermont law by extrapolation 
requires compliance with the federal identity standard. But this basis and connection is too 
tenuous. Just because Vermont law requires Poland Spring water to be certified by a regulator in 
another State does not mean that Vermont has independently and affirmatively adopted the 
federal identity standard as its own law.5  
                                                 
5 In their reply brief, doc. #170 at 42, plaintiffs also point to VT. STAT. ANN. tit. 10, ch. 48, §1416, “Groundwater 
Withdrawal Program,” in which “spring” is defined as “a groundwater source where groundwater flows naturally to 
the surface of the earth and is collected with a developed structure that is designed to locate or extract groundwater. ” 
A state regulation defines spring in similar terms, as “a groundwater source entirely dependent on gravity to move 
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 None of this means that the Vermont Consumer Fraud Act is expressly preempted; there 
is no indication that it rests on an underlying state law standard that actually departs from the 
federal spring water standard. On the other hand, the Vermont Consumer Fraud Act claim is 
impliedly preempted, because it does not rest on any independent state law of Vermont that 
defines a state standard for spring water. Absent such an underlying standard, plaintiffs’ 
Vermont claim is, in reality, just an attempt to sue for a violation of federal law, which is the 
type of claim that is subject to implied preemption.  
 Nestlé argues that some of the state law “spring water” standards do not give rise to a 
private cause of action. This is not an argument about federal preemption but about whether a 
particular statute or regulation gives rise to a cause of action under state law. It is common, 
moreover, for consumer protection and unfair trade practices statutes to serve as a vehicle for a 
cause of action based on conduct that violates an independent state law standard that is not itself 
otherwise actionable. See, e.g., Nick’s Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 
126-27 (2d Cir. 2017). Therefore, the fact that any particular state law standard is not 
independently actionable or directly enforceable is neither grounds to reach a non sequitur 
conclusion that the standard must be preempted by federal law, nor to conclude that the standard 
has no legal weight as a state law duty that is independent of federal law. Cf. Engine Mfrs. Ass’n 
v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252-54 (2004) (distinguishing in preemption 
context between “standards” and “methods of standard enforcement”). 
                                                 
water from the source to the distribution system.” VT. CODE R. 12-030-003 ch. 21, §2. But neither the statute nor the 
regulation uses the phrase “spring water,” and the regulation’s only use of “spring” that is in any way connected to 
bottled water labeling requirements is the provision that “all bottled water labels shall contain the following 
information . . . source, i.e. private spring, private well, or the name of the Public water system supplying the water ,” 
id., ch. 21, §11.1.2(g)(4). This short definition of the word spring, absent any reference to the federal spring water 
identity standard, does not constitute affirmative adoption of the federal standard.  
 
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 Nor is there a basis to conclude that plaintiffs’ common law claims are preempted except 
for the reasons already discussed as to the common law claims for Vermont. The fraud claim 
alleges in relevant part that there was fraud in each of the alleged States because Nestlé 
“intentionally concealed that its Poland Spring Water does not comply with the standard of 
identity for spring water under state law” and “affirmatively misrepresented to Plaintiffs on 
Poland Spring Water labels that Poland Spring Water is ‘100% Natural Spring Water’ sourced 
from naturally occurring springs in Maine when, in fact, Poland Spring Water is not ‘100% 
Natural Spring Water’ because [it] does not contain genuine natural spring water as defined by 
state law.” Doc. #160 at 283 (¶¶ 838-39) (emphasis added). Similarly, the contract claim alleges 
that Nestlé promised to deliver “100% Natural Spring Water” when in fact “it did not at any time 
deliver genuine spring water as defined under state law to Plaintiffs.” Id. at 285 (¶¶ 851-52) 
(emphasis added). Because these common law claims are predicated on a violation of a state law 
standard for “spring water” and because (as I have discussed above) each one of the nine States 
except Vermont has state law standards for “spring water” that are equivalent to the federal 
standard, these common law claims under the laws of Connecticut, Maine, Massachusetts, New 
Hampshire, New Jersey, New York, Pennsylvania, and Rhode Island are not preempted by 
federal law.  
Nestlé next argues that plaintiffs seek to enforce a definition of “spring water” that, in 
hydrogeological terms, goes well beyond what is required by the federal identity standard and 
cognate state law standards. Doc. #164-1 at 64-70 (citing multiple examples). But I am 
convinced by plaintiffs’ response that they do not seek to proceed on a theory of relief that would 
depart from any “spring water” requirement that differs from the federal “spring water” identity 
standard and that the specific evidentiary details they cite in the complaint are solely in the 
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nature of evidence they expect to support their claim that Nestlé’s product did not meet the 
“spring water” standards that have been adopted by multiple States and that mirror the federal 
“spring water” standard.  
There is no cause for me at this pleading stage to evaluate the strength or relevance of 
particular items of plaintiffs’ evidence, and any surplusage of evidentiary detail in the allegations 
of the complaint does not furnish a basis for dismissal. This is without prejudice to Nestlé’s 
opportunity to show at a later evidentiary stage of this action that plaintiffs’ “evidence” is not 
merely evidence of a violation of the existing “spring water” standard but actually represents an 
effort to enforce a different standard. 
Nestlé further argues that plaintiffs’ claims are subject to “conflict” preemption pursuant 
to Marentette v. Abbott Labs., Inc., 886 F.3d 112 (2d Cir. 2018). I do not agree. Conflict 
preemption is just “one form of implied preemption” and applies “where compliance with both 
state and federal law is a physical impossibility, or, as relevant here, where the state law at issue 
stands as an obstacle to the accomplishment and execution of the full purposes and objectives of 
Congress.” Id. at 117 (internal quotation marks and citation omitted). As an initial matter, Nestlé 
makes no showing that it is impossible for it to comply with both the federal and state law 
standards—and it cannot do so, because these standards are the same as one another as I have 
discussed.  
Nor has Nestlé shown how the allowance of state causes of action to enforce any of the 
state law standards will pose an obstacle to Congress’s purposes. Although the FDCA itself 
forecloses civil action to directly enforce the federal “spring water” standard, see Patane, 314 F. 
Supp. 3d at 385, there is no indication that Congress meant to foreclose the States from creating 
remedies that are predicated on state law standards that are identical to the federal “spring water” 
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standard. The FDCA limits its express preemptive effect in allowance and contemplation of such 
state law remedies. Id. at 384 n.8. Thus, the FDCA allows a State to “impose the identical 
requirement or requirements, and by doing so be enabled . . . to enforce a violation of the 
[FDCA] as a violation of state law.” Turek v. Gen. Mills, Inc., 662 F.3d 423, 426 (7th Cir. 2011) 
(Posner, J.). 
The law at issue before the Second Circuit in Marentette was a different federal statute—
the Organic Foods Production Act. Accordingly, because preemption is primarily an inquiry 
about Congress’s specific intent as to a specific statutory scheme, the facts and particulars of the 
Marentette decision are of little use in evaluating the scope of preemption under the FDCA. 
In short, I conclude for the most part that plaintiffs’ claims in the amended complaint are 
not preempted by federal law. Except for plaintiffs’ Vermont law claims, the FDCA does not 
preempt plaintiffs’ statutory and common law claims from Connecticut, Maine, Massachusetts, 
New Hampshire, New Jersey, New York, Pennsylvania, and Rhode Island.  
 Safe harbor  
 Nestlé moves to dismiss plaintiffs’ statutory claims for consumer fraud and unfair trade 
practices on the ground that “[r]egulators specifically authorized the sale of Poland Spring as  
‘spring water’ after they determined it complied with the FDA Identity Standard” and that the 
state statutory causes of action have “safe harbor” protections to the effect that these statutes do 
not apply to actions that have been “specifically approved and authorized pursuant to a 
regulatory regime administered by a dedicated regulatory agency.” Doc. #164-1 at 77. To 
support this argument, Nestlé has appended to its papers a collection of letters, certifications, and 
other documents from multiple state regulatory agencies. Doc. #53-3 at 7-29; Doc. #53-4 at 1-20; 
Doc. #164-2 at 1-10. 
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 Like any other affirmative defense, a “safe harbor” defense may be raised on a motion to 
dismiss, but only “if the defense is based on facts appearing on the face of the complaint.” 
Mercer v. Gupta, 712 F.3d 756, 759 (2d Cir. 2013) (per curiam). Because Nestlé’s “safe harbor” 
argument turns on fact-laden issues of what actions specific regulatory bodies have taken (and 
whether such actions constitute sufficient authorization to qualify for any “safe harbor”), it is not 
appropriate for me to resolve the application of the “safe harbor” defense on a motion to 
dismiss.6  
 Moreover, the amended complaint alleges unlawful conduct dating back to 2003. For the 
most part, however, Nestlé’s submissions include documents that only show current, single-year 
certifications and authorizations, such that I am in no position—even if I were to fully credit the 
documents that Nestlé has submitted to date—to evaluate Nestlé’s authorization status in prior 
years. Accordingly, I will deny Nestlé’s motion to dismiss insofar as it is based on a “safe 
harbor” defense but without prejudice to renewal of such a defense at the conclusion of 
discovery. 
 Adequacy of state common law claims  
 Nestlé argues that plaintiffs have not alleged plausible grounds for relief to support their 
common law fraud and contract claims in light of the fact that Nestlé obtained regulatory 
approvals. But, as with the “safe harbor” defense, the validity and status of regulatory 
authorizations is a fact-based argument that is not appropriate for me to address at the pleadings 
stage.  
                                                 
6 Although the amended complaint does allege some specifics of regulatory actions taken in Maine, it does so in the 
context of alleging that these regulatory actions were not proper. Therefore, it would be premature for me to make a 
fact-based determination at this time about the validity of these actions. 
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 Nestlé further argues that plaintiffs’ contract claim must be evaluated under the Uniform 
Commercial Code rather than under Connecticut common law and that plaintiffs cannot state a 
breach of contract claim because they are deemed under the UCC to have accepted the goods. 
Doc. #164-1 at 89-90. But Nestlé did not raise this specific UCC argument in its prior motion to 
dismiss, see Doc. #53-1 at 73-74, and Rule 12(g)(2) of the Federal Rules of Civil Procedure 
provides that “[e]xcept as provided in Rule 12(h)(2) or (3), a party that makes a motion under 
this rule must not make another motion under this rule raising a defense or objection that was 
available to the party but omitted from its earlier motion.” See also Leyse v. Bank of Am. Nat. 
Ass’n, 804 F.3d 316, 320-21 (3d Cir. 2015) (district court erred under Rule 12(g)(2) by allowing 
bank defendant to file successive motion to dismiss raising statutory standing argument not 
raised in initial motion to dismiss). Accordingly, I will decline at this time to consider Nestlé’s 
argument under the UCC for dismissal of the contract claim. See, e.g., E. Coast Test Prep LLC v. 
Allnurses.com, Inc., 2016 WL 5109137, at *4 (D. Minn. 2016).  
CONCLUSION   
For the foregoing reasons, Nestlé’s motion to dismiss (Doc. #164) is GRANTED in part 
as to plaintiffs’ Vermont law claims but DENIED as to all other claims. 
 It is so ordered.      
 Dated at New Haven this 28th day of March 2019.  
      
       /s/ Jeffrey Alker Meyer                               
       Jeffrey Alker Meyer 
       United States District Judge 
 
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