John Wertymer, individually, and on behalf of all others similarly situated, v. Walmart, Inc.
No. 23 CV 14700
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
May 9, 2024
Judge Lindsay C. Jenkins
Plaintiff John Wertymer alleges that Defendant Walmart, Inc.‘s Great Value brand “Raw Honey” and “Organic Raw Honey” are deceptively marketed and seeks to represent classes of similarly situated customers in a class action. [Dkt. 26.] The Court dismissed Wertymer‘s initial Complaint [Dkt. 25], and he filed a First Amended Complaint. Walmart again moves to dismiss. [Dkt. 30.] The motion is granted.
I. Background
This case concerns consumers’ expectations about “raw” honey. Wertymer alleges that “[c]onsumers know that raw honey is a natural product produced by honeybees composed of various sugars, minerals, proteins, enzymes, amino acids, and organic acids.” [Id. ¶ 7.] Consumers value raw honey for these compоunds and are willing to pay a premium for raw honey relative to filtered honey, which “is excessively heated during processing,” causing the beneficial compounds to break down. [Id. ¶¶ 8-9.] Consumers and honey producers, Wertymer alleges, understand that “the difference between raw honey and filtered honey is that filtered honey loses the benefits of raw honey through excеssive heating and processing.” [Id. ¶ 12; see id. ¶¶ 10-11 (explaining why some producers filter their honey).]
Wertymer alleges that he and other consumers expect that “honey labeled as raw is not heated or processed like filtered honey” and that those expectations “are consistent with the [U.S. Department of Agriculture (“USDA“)] definition of raw honey.” [Id. ¶ 13.] See USDA, Agricultural Marketing Service, Commercial Item Description: Honey 5 (2019), https://www.ams.usda.gov/sites/default/files/media/AA20380_Honey.pdf (“Raw honey. Honey as it exists in the beehive or as obtained by extraction, but not filtered. Raw honey may contain fine particles, pollen grains, air bubbles, comb, propolis and other defects normally found in suspension.“). The National Honey Board, an instrumentality of the USDA, stаtes that “While there is no official U.S. federal definition of ‘raw’ honey, it generally means honey that has
Walmart markets and sells “Raw Honey” and “Organic Raw Honey” under its Great Value brаnd throughout the United States. [Id. ¶¶ 22-25.] Wertymer alleges, however, that these products are not “raw” because Walmart subjects Organic Raw Honey “to industrial processing,” and it “excessively heat[s] [Raw Honey] during processing.” [Id. ¶¶ 50-51.]1 According to Wertymer, “[t]he scientific community and honey industry employ a simple test - reviewing the 5-hydroxymethylfurfural (HMF) value - to determine when honey has been ovеrheated and the enzymes destroyed.” [Id. ¶¶ 26-27.] “HMF occurs at very low concentrations and can even be absent in both fresh honey and food products,” but “heat treatment and/or prolonged storage conditions can enhance further HMF production.” [Id. ¶ 28 (quoting Ummay Mahfuza Shapla et al., 5-Hydroxymethylfurfural (HMF) Levels in Honey and Other Food Products: Effects on Bees and Humans, Chem. Cent. J. (2018)).] Wertymer alleges that raw honey typically has no HMF or an HMF value below 10 mg/kg. [Id. ¶¶ 29-30 (citing Technical Information, Airborne, https://www.airborne.co.nz/pages/hmf#:~:text=It%20is%20usual%20for%20HMF).] In contrast, filtered honey has higher HMF values, often near the 40 mg/kg limit set by the Codex Alimentarius, which the World Trade Organization recognizes as a reference for honey standards. [Id. ¶¶ 30-32.]
Wertymer also alleges that “[t]he sciеntific community and honey industry employ a simple test - reviewing the Mannose value - to determine if the processor added foreign sugars or subjected the honey to industrial processing that is not suitable for honey to be labeled as ‘Raw.‘” [Id. ¶ 37.] Mannose is “not found in honey with a pH value lower than 5, but is regularly found in industrial sugars.” [Id. ¶ 38.] “Under the Codex a concentration of mannose exceeding 0.02 g/100g in honey indicates the presence of foreign sugars or industrial processing.” [Id. ¶ 39.]
Wertymer bought Raw Honey and Organic Raw Honey from Walmart. [Id. ¶¶ 48-49.] He had lab testing performed on these products, and based on the results, he alleges that both types of honey are improperly labeled “raw.” [Id. ¶¶ 34, 40, 50-51.] Specifically, the Raw Honey had an HMF value of 22 mg/kg, above the 10 mg/kg expectation for raw honey, and allegedly indicative of heating. [Id. ¶¶ 34-36; see id. ¶ 33 (explaining that a bottle of Walmart‘s filtered honey, which is heated, had an HMF value of 39 mg/kg).] The Organic Raw Honey had a mannose value of 0.06
Wertymer brought this putativе class action, and the Court granted Walmart‘s first motion to dismiss. [Dkt. 25.] Wertymer then filed a First Amended Complaint, which asserts: (1) that Walmart‘s labeling of Organic Raw Honey and Raw Honey violates the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA“),
II. Legal Standard
A motion to dismiss pursuant to
III. Analysis
A. Standing
The Court begins, as it must, with Walmart‘s jurisdictional challenge. See, e.g., Sherwood v. Marchiori, 76 F.4th 688, 693 (7th Cir. 2023). Walmart moves to dismiss Wertymer‘s declaratory judgment claim under
Declaratory judgments are a form of prospective relief. See Driftless Area Land Conservancy v. Valcq, 16 F.4th 508, 521 (7th Cir. 2021) (“Declaratory and injunctive relief are paradigmatic examples of prospective relief.” (citation omitted)). “To have standing for prospective injunctive relief, a plaintiff must face a ‘real and immediate’ threat of future injury as opposed to a threat that is merely ‘conjectural or hypothetical.‘” Simic v. City of Chicago, 851 F.3d 734, 738 (7th Cir. 2017) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)); accord Robinson v. City of Chicago, 868 F.2d 959, 965-66 (7th Cir. 1989) (applying the same standing analysis to a claim for declaratory relief). Often, plaintiffs in consumer fraud cases lack standing to seek prospective relief because when they file their lawsuits, they know about the alleged deception, making it speculative that they will be injured by that deceptive marketing in the future. See, e.g., Camasta v. Jos. A. Bank Clothiers, 761 F.3d 732, 740-41 (7th Cir. 2014). Such is the case here: Wertymer had his honey tested, so the prospect of him falling victim to Walmart‘s alleged mislabeling in the future is merely conjectural. That means he lacks standing to seek declaratory relief.
In its previous order, the Court flagged the possibility that the “capable of repetition, yet evading reviеw” mootness doctrine might save Wertymer‘s claim for declaratory judgment from dismissal on jurisdictional grounds, but the Court took no firm position on the issue. [Dkt. 25 at 6-7.] Wertymer argues that this doctrine means that he has standing. He notes that “when [a] plaintiff represents class members who may later discover the defendants’ fraud, her claim is capable of repetition, and she may pursue hеr claim for injunctive relief despite loss of her personal stake.” Mullen v. GLV, Inc., 488 F. Supp. 3d 695, 706 (N.D. Ill. 2020) (citing Laurens v. Volvo Cars of N. Am., LLC, 868 F.3d 622, 625 (7th Cir. 2017)). This is true even before a class is certified. See Laurens, 868 F.3d at 623. But a case becoming moot implies that there was a live controversy at the outset. See Already, LLC v. Nike, Inc., 568 U.S. 85, 90-91 (2013) (“We have repeatedly held that an actual controversy must exist not only at the time the complaint is filed, but through all stages of the litigation. A case becomes moot-and therefore nо longer a ‘Case’ or ‘Controversy’ for purposes of Article III-when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” (cleaned up)). A plaintiff cannot make use of a mootness exception if he lacked standing in the first place. Friends of the Earth, Inc. v. Laidlaw Env‘t Servs. (TOC), Inc., 528 U.S. 167, 191 (2000) (“[I]f a plaintiff lacks stаnding at the time the action commences, the fact that the dispute is capable of repetition yet evading review will not entitle the complainant to a federal judicial forum.” (citation omitted)). Wertymer had his honey tested before he filed suit, so he
Wertymer argues that to prevail on the claims he brings, “every class member would need to submit honey they purchased for testing to determine whether the label is accurate, just like Plaintiff, and every class member would no longer be likely to be deceived upon receiving the test results that confirm the honey is not raw.” [Dkt. 33 at 10.] Therefore, no consumer would ever have standing to seek declaratory relief based on Walmart‘s alleged deception. [See id.] Wertymer‘s point is, in effect, that he must have standing because otherwise no one would. This argument fails. There is no rule that someone must be able to seek prospective relief for every claimed injury, whether that injury is based on the mislabeling of honey or unconstitutional chokeholds. See Lyons, 461 U.S. at 105. Like the plaintiff in Lyons, John Wertymer‘s remedy if he has been injured is to seek damages, not a declaratory judgment. See id. at 111.2 Walmart‘s motion to dismiss Wertymer‘s declaratory judgment claim for lack of subject-matter jurisdiction is granted.
B. The Merits
Turning to the merits, Wertymer‘s theory of the case is that scientific testing reveаls that Walmart‘s honey products are mislabeled as “raw.” [See Dkt. 33 at 1 (“[Walmart‘s] representations are false and misleading to consumers because in reality, Walmart‘s honey is not raw since [Walmart] subjects it to industrial processing and excessively heats it during processing.” (cleaned up)).] Wertymer‘s ICFA and fraudulent misrepresentation claims turn on whether the honey is properly labeled “raw.” [See Dkt. 26 ¶¶ 78-82 (ICFA deception), 86-89 (ICFA unfairness), 92-93 (fraudulent representation).] The Court therefore considers these claims together, applying Rule 8‘s plausibility pleading standard, even though Rule 9(b)‘s heightened pleading standard applies to the ICFA deception and fraudulent misrepresentation claims. See Benson v. Fannie May Confections Brands, Inc., 944 F.3d 639, 646 (7th Cir. 2019); Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 569 (7th Cir. 2012). The First Amended Complaint fails to allege facts thаt make it plausible that Walmart mislabeled its Raw Honey or Organic Raw Honey.
Starting with Raw Honey, Wertymer alleges that consumers expect raw honey not to be excessively heated, and Raw Honey‘s HMF value of 22 mg/kg indicates that it was overheated because raw honey typically has HMF concentrations of no more than 10 mg/kg. [Dkt. 33 at 3-6.] Walmart argues that the factual allegations in the First Amended Complaint do not support a reasonable inference that consumers expect raw honey to have HMF values of no more than 10 mg/kg or that higher HMF values indicate excessive heating. [Dkt. 31 at 6-10.] The Court agrees with Walmart. As Wertymer alleges, consumers in the United States expect that honey conforms
Even if a reasonable consumer would expect raw honey to have properties that could be measured by HMF content, the First Amended Complaint lacks allegations that make it plausible that it is misleading to label honey as “raw” if it has an HMF cоncentration of 22 mg/kg. The Court has explained that it is implausible that U.S. consumers would expect honey to conform with standards in a New Zealand source when American regulatory bodies do not set a specific standard, so the fact that Raw Honey‘s HMF concentration is well over 10 mg/kg does not support an inference that it is not “raw” within the reasonable exрectations of an American consumer. Indeed, Raw Honey has a much lower HMF value than Walmart‘s filtered honey, 39 mg/kg [see Dkt. 26 ¶¶ 33-34], and as Walmart notes, the products look noticeably different. [See Dkt. 31 at 9 (citing Dkt. 26 ¶¶ 10, 13 & exh. 3, 5).] Even construing Wertymer‘s allegations in his favor, see Reardon, 74 F.4th at 827, a reasonable factfinder could not avoid the conclusion that Walmart‘s Raw Honey and filtered honey are chemically distinct products. USDA does not set a specific standard for raw honey, and the facts Wertymer alleges do not support an inference that a reasonable American consumer would expect a particular standard to apply to honey labeled “raw.” Therefore, the Court holds that “Raw Honey” is not mislabeled as a mattеr of law.
Wertymer‘s allegations about Organic Raw Honey suffer similar deficiencies. The First Amended Complaint does not plead facts that make it plausible that a reasonable consumer would expect raw honey to have a mannose level below a specific level. [See Dkt. 26 ¶¶ 12, 37-39 (alleging only that consumers expect raw honey not to be subjeсt to industrial processing and that certain mannose levels can indicate such processing).] Further, Wertymer alleges that mannose levels of over 0.02 g/100 g “indicates the presence of foreign sugars or industrial processing.” [Dkt. 26 ¶ 39 (emphasis added).] In fact, the lab report Wertymer attaches to the First Amended Complaint states, “A concentration of mannose exсeeding 0.02 g/100g in honey with a pH < 5 could indicate the presence of foreign sugars or industrial processing
Wertymer‘s ICFA and fraudulent misrepresentation claims depend on it being false or misleading for Walmart to label Raw Honey and Organic Raw Honey “raw.” The facts alleged in the First Amended Complaint fail to support such an inference. Therefore, the Court grants Walmart‘s motion to dismiss for failure to state a claim without reaching the parties’ additional arguments.3
IV. Conclusion
For the foregoing reasons, Walmart‘s motion to dismiss [Dkt. 30] is granted. Wertymer has had one opportunity to amend his complaint, so he will not be given leave to amend again. See Zimmerman v. Bornick, 25 F.4th 491, 494 (7th Cir. 2022). Wertymer‘s claim for declaratory judgment is dismissed without prejudice for lack of subject-matter jurisdiction, and his ICFA and fraudulent misrepresentation claims are dismissed with prejudice. Judgment shall enter in favor of Walmart and against Wertymer. Civil case terminated.
Enter: 23-cv-14700
Date: May 9, 2024
Lindsay C. Jenkins
United States District Judge