Court of Appeals of Missouri, Eastern District, Third Division
DANIEL MURPHY, individually and on Behalf of all others similarly situated in Missouri, Plaintiff/Appellant,
STONEWALL KITCHEN, LLC, Defendant/Respondent.
from the Circuit Court of the City of St. Louis Hon. Joan L.
S. Van Amburg, Judge
Daniel Murphy appeals the trial court's order granting
Respondent Stonewall Kitchen, LLC's Motion to Dismiss. We
reverse the trial court and remand the matter for further
proceedings consistent with this opinion.
Murphy filed this lawsuit under the Missouri Merchandising
Practices Act (MMPA) alleging Stonewall Kitchen, LLC
misrepresented that its cupcake mix was "all
natural" when it contained the ingredient of sodium acid
pyrophosphate (SAPP), a chemical that acts as a leavening
agent and is found in commercial baking powders. The petition
identified the term "natural" to mean "when
nothing artificial or synthetic … has been included
in, or has been added to, a food that would not normally be
expected to be in the food." The petition also contained
allegations of unjust enrichment.
Stonewall Kitchen filed a Motion to Dismiss for Failure to
State a Claim. The trial court, relying on the federal
district court for the Western District of Missouri's
decision in Kelly v. Cape Cod Potato Chip Co., 81
F.Supp.3d 754 (W.D. Mo. 2015), granted the motion. It
reasoned that because the ingredient label clearly disclosed
the presence of SAPP, it was not plausible that a consumer
would believe the "all natural" representation on
the product (i.e. the "ingredient list defense").
The trial court also dismissed the unjust enrichment claim as
wholly derivative of plaintiff's MMPA claim. We reverse
the trial court for the reasons set forth below.
courts review a trial court's grant of a motion to
dismiss de novo. Ward v. W. Cnty. Motor Co., Inc.,
403 S.W.3d 82, 84 (Mo. banc 2013). A motion to dismiss for
failure to state a claim tests the adequacy of a
plaintiff's petition. Nazeri v. Mo. Valley
Coll., 860 S.W.2d 303, 306 (Mo. banc 1993). The petition
is reviewed in an almost academic manner to determine if the
plaintiff has alleged facts that meet the elements of a
recognized cause of action or of a cause that might be
adopted in that case. Id. The facts alleged in the
petition are assumed to be true and are construed liberally
in favor of the plaintiff. Ward, 403 S.W.3d at 84.
If the facts pleaded and reasonable inferences to be drawn
therefrom, looked at most favorably from the plaintiff's
standpoint, show any ground upon which relief can be granted,
the plaintiff has a right to proceed. Euge v.
Golden, 551 S.W.2d 928, 931 (Mo. App. 1977). Indeed,
under principles of modern pleading, a petition is not to be
dismissed for failure to state a claim unless it appears that
the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief. Id.
MMPA, as first adopted by the legislature in 1967, protects
consumers by expanding the common law definition of fraud
"to preserve fundamental honesty, fair play and right
dealings in public transactions." State ex rel.
Danforth v. Independence Dodge, Inc., 494 S.W.2d 362,
368 (Mo.App.1973); see Huch v. Charter Commc'ns,
Inc., 290 S.W.3d 721, 725-26 (Mo. banc 2009). To prevail
on a claim under the MMPA, a plaintiff must plead and prove
he or she (1) purchased merchandise (which includes services)
from defendants; (2) for personal, family or household
purposes; and (3) suffered an ascertainable loss of money or
property; (4) as a result of an act declared unlawful under
the Merchandising Practices Act. Hess v. Chase Manhattan
Bank, USA, N.A., 220 S.W.3d 758, 773 (Mo. banc 2007);
Edmonds v. Hough, 344 S.W.3d 219 (Mo. App. E.D.
2011). It is the defendant's conduct, not his intent,
which determines whether a violation has occurred. State
ex rel. Webster v. Areaco Inv. Co., 756 S.W.2d 633, 635
(Mo. App. E.D.1988) (internal quotations omitted). Moreover,
"[a] consumer's reliance on an unlawful practice is
not required under the MMPA." Hess, 220 S.W.3d
issue before us is whether Murphy pled facts and provided a
definition of "all natural" sufficient to survive a
motion to dismiss. Two federal district courts in Missouri
reached different conclusions when they grappled with whether
the use of the term "natural" or "nothing
artificial" on packaging was deceptive under the MMPA.
In Kelly v. Cape Cod Potato Chip Co., the plaintiff
alleged potato chips labeled as "all natural" with
"no preservatives" violated the MMPA. 81 F.Supp.3d
at 760. The court held that "the federally-compliant
ingredient label on the back of the [c]hips defeats
Plaintiff's claims that the [c]hips' labeling
constitutes an unlawful practice under the MMPA." It
went on to find that the plaintiff's assertion that she
was deceived by the chip company's labeling was
contradicted by the full disclosure of the challenged
ingredients and, if the plaintiff wished to avoid products
containing the challenged ingredients, the chip company
provided her with all the information she needed to do so.
The Kelly court further held that in the absence of
any plausible definition for the term "natural, "
the plaintiff failed to state a claim that the use of the
term "all natural" was deceptive or misleading
under the MMPA. As a result, the Kelly court granted
the chip company's motion to dismiss.
federal district court for the Eastern District of Missouri,
on the other hand, denied a defendant's motion to dismiss
when it faced a similar issue. See Erika Thornton v.
Pinnacle Foods Group LLC, No. 4:16-CV-00158 JAR, 2016 WL
4073713 (E.D. Mo. Aug. 1, 2016). In Thornton, the
plaintiff asserted claims under the MMPA and unjust
enrichment. She alleged she purchased a box of muffin mix
labeled as containing "nothing artificial."
However, the mix allegedly contained two artificial,
synthetic substances. Plaintiff alleged the representation
that the mix contained "nothing artificial" was
false, deceptive, and misleading. In response, the defendant
filed a motion to dismiss asserting the "ingredient
list" defense. The trial court denied defendant's
motion because whether a reasonable consumer would be
deceived by a product label was an issue of fact that could
not be resolved on a motion to dismiss. The court reasoned
that it was plausible a consumer might rely on the
representation "nothing artificial" without looking
at the ingredients or that the consumer might not know that
the ingredients were artificial. It held that the mere
presence of an ingredient list on the back of a product did
not eliminate the possibility that reasonable consumers might
be misled and that the effect of that ingredient statement on
a reasonable consumer's understanding of advertising and
product labels involved a factual inquiry. As a result, the
court denied defendant's motion to dismiss.
case, Murphy filed a lawsuit alleging that the term "all
natural" present on the packaging of Stonewall
Kitchen's cupcake mix was false, deceptive, and
misleading under the MMPA because the mix contained the
artificial ingredient SAPP. Murphy's petition also
contained a count for unjust enrichment. Stonewall Kitchen
filed a motion to dismiss claiming the petition failed to
state a claim under the MMPA because Murphy failed to allege
facts showing the cupcake mix was deceptive or that he
suffered a loss as a result. Stonewall Kitchen also claimed
the unjust enrichment allegations were derivative of the MMPA
claim and should be dismissed. The trial court agreed. Citing
the Kelly decision, the trial court concluded that
Murphy failed to plead an unlawful act within the meaning of
the MMPA because he did not-and could not-allege that the
cupcake mix's packaging, when taken as a whole, failed to
disclose that SAPP was an ingredient. In essence, the trial
court accepted the "ingredient list" defense as
barring Murphy's MMPA claim. It further opined that the
terms "natural" or "all natural, " as
used in the context of food and food labeling, were
inherently ambiguous and had no clearly settled or generally
understood and accepted meaning. As a result, the trial court
held Murphy's petition could not survive a motion to
dismiss. We disagree.
Point I, Murphy argues the trial court erred in granting
Stonewall Kitchen's motion to dismiss because he properly
pled an MMPA claim and set forth facts sufficient to survive
such a motion. Stonewall Kitchen argues in response that the
dismissal of Murphy's MMPA claim should be affirmed
because the term "all natural" is subjective and
ambiguous and the ingredient was disclosed in the ingredient
label, which defeats Murphy's claim as a matter of law.
We conclude that the bare assertion that "all
natural" is subjective and ambiguous does not cause
Murphy's entire MMPA claim to fail at this early stage of
litigation because a reasonable consumer's understanding
of the term "all natural" or whether a practice is
unfair or deceptive are questions of fact. See, e.g.
Jackson v. Hazelrigg Auto. Serv. Ctr., Inc., 417 S.W.3d
886, 895 (Mo. App. S.D. 2014); Kiechle v. Drago, 694
S.W.2d 292, 293 (Mo. App. W.D. 1985)("leaving it to the
court in each particular instance to declare whether fair
dealing has been violated"). For example, more discovery
is required regarding whether SAPP is an artificial or
natural ingredient, whether SAPP is ordinarily expected to be
included in such a cupcake mix, whether an ordinary consumer
would be misled by the term "all natural, " and
whether labeling the mix as "all natural" was
deceptive. The parties should have been allowed to proceed
with discovery and allow these fact questions to be resolved
by a motion for summary judgment, if appropriate, or by a
jury, not by a ...