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Johnson v. Atkins Nutritionals, Inc.

United States District Court, W.D. Missouri, Central Division

July 12, 2018




         Before the Court is Defendant's Motion for Summary Judgment. (Doc. 90).


         Summary judgment is proper if, viewing the record in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “Where there is no dispute of material fact and reasonable fact finders could not find in favor of the nonmoving party, summary judgment is appropriate.” Quinn v. St. Louis County, 653 F.3d 745, 750 (8th Cir. 2011). Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the movant meets the initial step, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To do so, the moving party must “do more than simply show there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).


         This matter arises from Plaintiff's purchase of five Atkins-brand products that he alleges bore false statements on their labels concerning “Net Carbs, ” or net carbohydrates: Atkins Meal Advantage Chocolate Peanut Butter Bars, Atkins Day Break Peanut Butter Fudge Crisp Bar, Atkins Advantage 5 Pack of Chocolate Chip Cookie Dough Bar, Atkins 5 Pack Caramel Nut Chew Bar, and Atkins Endulge Chocolate Candies. Defendant calculates the net carbohydrate content of its products by subtracting the product's dietary fiber and sugar alcohol content from its total carbohydrates. For example, a product may have 19g of total carbohydrates, 4g of dietary fiber, and 14g of sugar alcohols. Using Defendant's calculation method, this product has 1g of net carbohydrates.

         The Court previously held that some of Plaintiff's theories of liability were preempted by federal law. (Doc. 57). The Court held that Plaintiff could proceed on their theory that labels stating a product contained “Only Xg Net Carbs” were false, misleading, or deceptive because such labels may run afoul of 21 U.S.C. § 343(r). The Court also permitted Plaintiff's claims based on the theory that the “Counting Carbs?” labels made false, misleading, or deceptive statements concerning the effects of sugar alcohols on blood sugar. The Court held that a theory of liability based on the calculation method itself was preempted because such a claim sought to impose labeling requirements that are not identical to those imposed by federal law. However, Plaintiff would be permitted to introduce evidence concerning the calculation method insofar as it was connected to the assertion that sugar alcohols have energy content and impact blood sugar. Finally, the Court held that claims based on labels stating the products contained “Xg Net Carbs” were preempted because such statements constituted permissible nutrient content claims under federal law. But, the Court also stated that evidence concerning those labels would be admissible because they may be contextually linked to the “Counting Carbs?” labels. As to Plaintiffs claims, the Court dismissed Count III of Plaintiff s Complaint which alleged breach of implied warranty for failure to state a claim.

         During his deposition, Plaintiff was questioned regarding the labels at issue in this matter and his motivations for purchasing the products:

• Plaintiff testified that he remembered “seeing” but not “reading” the “Counting Carbs?” label prior to purchasing the Chocolate Peanut Butter Bar product, and that he did not “look at” the “Counting Carbs?” label on the Peanut Butter Fudge Crisp Bar product when he purchased it.
• Plaintiff testified, “I don't really think it does anything. I mean, you're still displaying right here ‘2 grams carbs,' ” when asked whether he felt the presence of the word “only” impacted the meaning of a label stating, “Only 2g Net Carbs”
• When asked about his purchasing decision concerning the Chocolate Peanut Butter Bar, and whether the “Counting Carbs?” label was important to that decision, Plaintiff testified that his then-wife would direct him to purchase certain things that they wanted. . Plaintiff also testified, however, that the products were purchased as part of a no-to-low carb diet plan to cut sugar and lose weight, and he further testified that his then-wife assisted in determining what he ate.


         After the Court's ruling on Defendant's Motion to Dismiss, three of Plaintiff s claims remain at issue: Count I alleges violation of the Missouri Merchandising Practices Act (MMPA), Count II alleges breach of express warranty, and Count IV alleges unjust enrichment.

         The sole basis of Defendant's assertion that it is entitled to summary judgment is that Plaintiff did not see certain labels, did not rely on their contents, or purchased the products for reasons other than what was stated in the labels.

         I. Missouri Merchandising Practices Act

         The MMPA declares that it is an “unlawful practice” to use or employ “any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce. . . .” Mo. Rev. Stat. § 407.020. To prevail on a claim for a violation of the MMPA, a plaintiff must “prove that they made a purchase or lease for personal, family, or household purposes and suffered an ascertainable loss of money or property as a result of an act declared unlawful under section 407.020.” Binkley v. Am. Equity Mortg., Inc., 447 S.W.3d 194, 198 (Mo. 2014) (en banc); Mo. Rev. Stat. § 407.025.

         A. Materiality/Reliance

         Defendant first contends that, in order to prevail, Plaintiff must have either relied on the labels, or the content of the labels must have been material to his purchasing decision. Defendant asserts that the evidence shows Plaintiff did not so rely, and the content of the labels were not material to his decision to purchase the products. Missouri law contradicts Defendant's position.

         “The purpose of Missouri's Merchandising Practices Act is ‘to preserve fundamental honesty, fair play and right dealings in public transactions.' ” State ex rel. Nixon v. Beer Nuts, Ltd., 29 F.3d 828, 837 (Mo.Ct.App. 2000) (quoting State ex rel. Danforth v. Independent Dodge, Inc., 494 S.W.2d 362, 368 (Mo.Ct.App. 1973). “[T]he MMPA serves as a supplement to the definition of common law fraud; it eliminates the need to prove an intent to defraud or reliance.” Schuchmann v. Air Serv's Heating & Air Conditioning, Inc., 199 S.W.3d 228, 232 (Mo.Ct.App. 2006). Nothing in Sections 407.020 or 407.025 indicate that a consumer must rely on the allegedly unlawful practice to pursue a claim.

         The Missouri Attorney General's Office has promulgated regulations defining each type of unlawful practice outlined by Section 407.020. Plaintiff's Complaint alleges three kinds of ...

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