364 F. Supp. 3d 26
D.D.C.2019Background
- Plaintiff Danell Tomasella sued Nestlé USA alleging Chapter 93A deception/unfairness and unjust enrichment for failing to disclose on product packaging that its cocoa likely derives from farms using child and forced labor in Côte d’Ivoire.
- Complaint alleges Nestlé sources West African cocoa, has acknowledged risks of child/forced labor, and publicized remediation efforts (Harkin‑Engel Protocol, Nestlé Cocoa Plan, Fair Labor Association audits) but does not disclose labor‑practice risks at point of sale.
- Plaintiff purchased Nestlé chocolate in Massachusetts from 2014 onward and alleges she would not have bought or paid as much had packaging disclosed the labor practices.
- Nestlé moved to dismiss under Fed. R. Civ. P. 12(b)(6); the court evaluated whether omissions on packaging are deceptive or unfair under Mass. Gen. Laws ch. 93A and whether unjust enrichment survives.
- The court accepted factual allegations as true for the motion but found the alleged omission was a “pure omission” and not plausibly misleading to a reasonable consumer at point of sale.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nestlé's failure to disclose supplier labor practices on packaging is a deceptive act under Chapter 93A | Omission of child/slave labor information is material and likely to deceive reasonable consumers into buying products | Pure omission not actionable; no affirmative misrepresentation or half‑truth on packaging; disclosure not required at point of sale | Dismissed — omission not plausibly deceptive to a reasonable consumer |
| Whether the omission is an "unfair" practice under Chapter 93A | Nondisclosure is immoral/unscrupulous and causes substantial consumer injury (paid more for product) | No established common‑law/statutory duty to disclose suppliers’ labor practices on packaging; consumers can access disclosures elsewhere | Dismissed — omissions not within penumbra of established unfairness nor shown to cause substantial injury |
| Whether Plaintiff has alleged a cognizable Chapter 93A injury (product worth less) | Consumers received a product worth less because they would have paid less or not purchased had they known | Alleged injury depends on nondisclosure that is not deceptive/unfair; information is available through Nestlé disclosures elsewhere | Court did not reach fully because deception/unfairness not shown, but found plaintiff’s theory insufficient |
| Whether unjust enrichment claim survives alongside Chapter 93A claim | Unjust enrichment available if Nestlé retained benefit from nondisclosure | Plaintiff has adequate remedy at law (Chapter 93A); unjust enrichment barred when an adequate legal remedy exists | Dismissed — unjust enrichment barred because remedy at law exists and allegations are conclusory |
Key Cases Cited
- McCoy v. Nestlé USA, Inc., 173 F. Supp. 3d 954 (N.D. Cal. 2016) (discusses ethical issues and litigation context around child labor in cocoa supply chains)
- Aspinall v. Philip Morris Cos., 442 Mass. 381, 813 N.E.2d 476 (2004) (Chapter 93A deception standard and reasonable consumer test)
- Shaulis v. Nordstrom, Inc., 865 F.3d 1 (1st Cir. 2017) (unjust enrichment barred when adequate legal remedy exists)
- Hodsdon v. Mars, Inc., 891 F.3d 857 (9th Cir. 2018) (labeling claims based on supplier labor practices found too attenuated for unfairness theory)
- Mass. Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 552 F.3d 47 (1st Cir. 2009) (elements and court’s gatekeeping role for unfairness under Chapter 93A)