640 F.Supp.3d 182
D. Mass.2022Background
- Plaintiff Kristin DiCroce brought a putative class action alleging Lactaid packaging makes unlawful disease/treatment claims while labeling the product a "dietary supplement," violating Mass. Gen. Laws ch. 93A, ch. 266 § 91, and asserting unjust enrichment.
- Challenged label statements included claims like "For the Prevention of Gas - Bloating - Diarrhea associated with digesting dairy," "Enjoy Dairy Again!" and instructions to take Lactaid with the first bite to avoid symptoms; packaging also displayed disclaimers: "THIS STATEMENT HAS NOT BEEN EVALUATED BY THE FOOD & DRUG ADMINISTRATION" and "THIS PRODUCT IS NOT INTENDED TO DIAGNOSE, TREAT, CURE OR PREVENT ANY DISEASE."
- DiCroce alleged she repeatedly purchased Lactaid over four years, would not have bought it (or would have paid less) absent the allegedly misleading disease-related statements, and thus paid a price premium compared to other lactase supplements.
- After an initial dismissal for lack of Article III standing, DiCroce filed an amended complaint asserting three counts (Chapter 93A/other states' consumer protection laws, unjust enrichment, and Mass. Gen. Laws ch. 266 § 91). Defendants moved to dismiss again (standing, failure to state a claim, preemption).
- The district court held DiCroce adequately alleged Article III injury (payment of a premium) but concluded the Amended Complaint failed on the merits: no reasonable consumer would be misled given the prominent disclaimers and absence of a factual misrepresentation; the complaint was dismissed with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing | DiCroce: paid a premium for Lactaid because labels made illegal disease claims | McNeil/J&J: alleged injury is speculative or insufficient | Court: Article III standing pleaded — payment of a price premium is a concrete injury |
| Whether labels were deceptive under Chapter 93A / § 91 | DiCroce: statements portray Lactaid as treating/preventing lactose intolerance (a disease), so labels are misleading | Defendants: labels plainly state Lactaid is a supplement and not a drug; no false factual representation | Court: No reasonable consumer would be misled; plaintiff failed to plead a misrepresentation of fact; claim fails |
| Effect of FDA-related disclaimers | DiCroce: "not evaluated by FDA" disclaimer falsely implies FDA review unnecessary for disease claims, adding to confusion | Defendants: disclaimers merely state lack of FDA evaluation; do not mislead a reasonable consumer | Held: Disclaimers do not mislead; they weigh against finding deception |
| Reliance/price-premium comparability to alternatives | DiCroce: would have bought cheaper alternatives or paid less; cites per-pill price differentials | Defendants: comparability disputed; price-premium theory speculative | Held: The court accepts plausibly alleged premium for Article III purposes but leaves comparability factual issues for later; merits dismissed for other reasons |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard for Rule 12(b)(6))
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading must include factual allegations supporting plausible liability)
- Lujan v. Defs. of Wildlife, 504 U.S. 555 (Article III standing elements)
- Hochendoner v. Genzyme Corp., 823 F.3d 724 (1st Cir. 2016) (standing requires concrete, particularized injury)
- Gustavsen v. Alcon Labs., Inc., 903 F.3d 1 (1st Cir. 2018) (overpayment due to deception can be Article III injury)
- Katz v. Pershing, LLC, 672 F.3d 64 (1st Cir. 2012) (distinguishing Article III standing from statutory standing)
- Aspinall v. Philip Morris Cos., Inc., 813 N.E.2d 476 (Mass. 2004) (reasonable consumer standard for deception)
- Dumont v. Reily Foods Co., 934 F.3d 35 (1st Cir. 2019) (assessing plausibility of deceptive labeling claims)
- Tomasella v. Nestlé USA, Inc., 962 F.3d 60 (1st Cir. 2020) (elements of a Chapter 93A deceptive practices claim)
- Bowring v. Sapporo U.S.A., Inc., 234 F. Supp. 3d 386 (E.D.N.Y. 2017) (disclaimer can preclude a finding that a reasonable consumer was deceived)