Reliance On False Label Not Always Necessary To State A Claim

Nathan A Adams IV is a Partner in Holland & Knight's Tallahassee office

In Johnson v. Atkins Nutritionals, Inc., No. 2:16-cv-04213, 2018 WL 3398162 (W.D. Mo. July 12, 2018), the plaintiff sued the defendant on various theories for alleged deceptive labels, but during deposition he testified that he remembered seeing, but not reading the "Counting Carbs?" label. When asked whether the label was important to his purchasing decision, the plaintiff testified that his then-wife "would direct him to purchase certain things that they wanted" as part of a no-carb to low-carb diet plan to cut sugar and lose weight. The defendant argued that an element of a claim under the Missouri Merchandising Practices Act (MMPA) must be reliance on the alleged false label. The defendant argued the label must at least be material to the consumer's purchasing decision. The court disagreed that reliance or materiality were necessary elements of the MMPA claim any more than that the plaintiff had suffered some "ascertainable loss." The plaintiff consumed the products and was not adversely affected, but the court determined that the plaintiff need only show that the product was worth less than what he paid for it due to the alleged false label. The court did grant summary judgment on the plaintiff's claims for breach of express warranty and unjust enrichment as they pertain to the "Counting Carbs?" label on chocolate peanut butter bars. The defendant failed to solicit similar reliance deposition testimony for three other products, so the related claims remained. The court also denied summary judgment on the plaintiff's claims with respect to the "Only Xg Net Carbs" label, although the...