2023 IL App (1st) 220151
Ill. App. Ct.2023Background
- PSP Distribution/Franchising/Group sell “Redford Naturals” pet food; product label (and website) listed “ground flaxseed.”
- Plaintiff Caryn Ash purchased 15 cans of the wet cat food and alleges she observed several whole flaxseeds in and on the cans.
- Ash sued under the Illinois Consumer Fraud and Deceptive Business Practices Act, plus common-law fraud and unjust enrichment, alleging failure to disclose the presence of whole flaxseed.
- After two prior dismissals, Ash filed a second amended complaint emphasizing visible whole flaxseed and a ‘‘pet humanization’’ theory that owners pay premiums and would not buy food containing whole flaxseed.
- The trial court granted defendants’ section 2-615 motion and dismissed with prejudice, concluding the omission was not material; unjust enrichment failed as derivative of the fraud claims.
- The appellate court reviewed de novo and affirmed the dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether omission of whole flaxseed from label is material under Consumer Fraud Act/common-law fraud | Listing “ground flaxseed” implied absence of whole flaxseed; presence of whole flaxseed is material because consumers (especially "humanizing" pet owners) would not buy it | “Ground flaxseed” does not imply exclusivity; reasonable consumer would not interpret label to mean no other form of flaxseed is present | Dismissed — as a matter of law the omission was not material; reasonable consumer would not be misled into expecting exclusivity |
| Sufficiency of fraud pleading under 735 ILCS 5/2-615 (particularity and facts) | Alleged visible whole flaxseed throughout cans and consumer preferences; claimed manufacturers know whole flaxseed would make product undesirable | Allegations are conclusory, lack factual support about harm or why disclosure of form is critical; no plausible inference that label was likely to deceive | Dismissed — complaint fails to plead nonconclusory facts demonstrating materiality or plausibly deceptive conduct |
| Regulatory argument that labeling law required distinguishing ingredient forms | Cites federal and Illinois rules allegedly requiring full and accurate ingredient lists that should have disclosed whole flaxseed | Regulations require listing ingredients by common or usual name and do not mandate distinguishing forms (ground vs whole) | Rejected — cited statutes/regulations do not compel distinguishing forms of an ingredient and do not support materiality claim |
| Unjust enrichment claim dependent on fraud claims | Seeks restitution for payment based on omission | Unjust enrichment is not a standalone claim where underlying claims fail | Dismissed — unjust enrichment fails because fraud claims were deficient |
Key Cases Cited
- Connick v. Suzuki Motor Co., 174 Ill. 2d 482 (1996) (materiality measured by whether omission concerns information a buyer would be expected to rely on)
- Siegel v. Levy Organization Development Co., 153 Ill. 2d 534 (1992) (Consumer Fraud Act does not require proof of actual reliance)
- Visvardis v. Ferleger, P.C., 375 Ill. App. 3d 719 (2007) (courts may disregard conclusory allegations on a section 2-615 motion)
- Miller v. William Chevrolet/GEO, Inc., 326 Ill. App. 3d 642 (2001) (materiality element: reasonable person expected to rely on statement or omission when deciding transaction)
- Bell v. Publix Super Markets, Inc., 982 F.3d 468 (7th Cir. 2020) (label statements about an ingredient do not necessarily imply exclusivity)
- Beardsall v. CVS Pharmacy, Inc., 953 F.3d 969 (7th Cir. 2020) (plaintiff must plausibly allege that a statement was likely to deceive a reasonable consumer)
- Vanzant v. Hill’s Pet Nutrition, Inc., 934 F.3d 730 (7th Cir. 2019) (unjust enrichment claim rises or falls with the underlying Consumer Fraud Act claim)