Center for Inquiry Inc. v. Walmart, Inc.
William M. Janssen*
I. Why It Made the List
“Get ready to match the stars—as we play the star-studded, big money Match Game! And here’s your host, Gene Rayburn!”
Anyone born in the 1960s likely remembers this TV opening with its funky, synthesized musical theme, opening each episode of the popular televised game show of the 1970s. What made it so well watched? It probably wasn’t the “stars” (with apologies to Brett Somers, Nipsey Russell, Fannie Flagg, and Charles Nelson Reilly). Many were no longer quite “A”-listers. Richard Dawson’s Family Feud enjoyed a robust popularity as well, with family members trying, for years, to match the top five answers. Perhaps these shows’ success can be traced to their similar, intrinsically appealing premise: matching things.
It seems we, as humans, are pretty much hot-wired to search for matches. As toddlers, our favorite games probably included Tic-Tac-Toe’s matching of Xs and Os. As early students, our haunting nightmares may have involved matching tests. When old enough to start picking out our own clothes for the day, we almost certainly remember being told that blue pants and brown shoes just don’t match. In middle-of-the-street neighborhood stickball games, most can recall matching up players. Back then, our sports team adversaries were “no match” for our favored squad, unless of course they were equally matched and then fandom panic set in. Into adulthood, we began the search for our perfect match—the special someone whose likes, interests, and aspirations aligned (matched) with our own.
As career approached, little changed. Looking for an internship? You’d match your resume to that job’s posted credentials. Thinking medical school? Prepare for residency “match-day” angst. A career in pharmaceutical science? Show an affinity for detecting patterns in clinical data. A criminal law specialist? Matching offense criteria to sentencing guidelines is a must.
If, indeed, all of life is matching, last September’s Center for Inquiry Inc. v. Walmart, Inc. decision[1] ought to feel quite familiar. The plaintiff there contended that pharmacies had violated the District of Columbia’s consumer protection/unfair trade practices statute in their marketing of homeopathic products. Why? Because they were shelved alongside FDA-approved medicines, allegedly imparting the misleading impression that the products were functionally similar—in effect, interchangeable matches.
The District of Columbia Court of Appeals ruled that this contention survived the pharmacies’ pleadings-based challenge, and in so doing, held that the manner in which a product is displayed for customer viewing can, itself, constitute a deceptive trade practice. Because this litigation may widen the inventory of products liability theories, it qualifies as one of the top food and drug cases of 2022.
II. Discussion
Two lawsuits filed in the District of Columbia Superior Court prompted this appeal. In both lawsuits, the trial judges had dismissed the complaints. The lawsuits were filed against, respectively, Walmart, Inc. and CVS Pharmacy, Inc., and sought declaratory, injunctive, and monetary relief for claimed violations of D.C.’s Consumer Protection Procedures Act (“trade practices act”).[2] The lawsuits contended that the stores engaged in unfair and deceptive trade practices by displaying homeopathic products alongside “science-based” medicines in their “Cold, Cough & Flu Relief” physical store aisles and Internet product pages. The litigating theory was that, through such product placement, Walmart and CVS Pharmacy had falsely represented to consumers that the two product types were “equivalent” to one another and “effective in treating specific diseases and symptoms.”[3] The complaints pleaded that neither representation was true.
A. A Primer on Homeopathic Products
Homeopathic products are not approved as medicines by the U.S. Food and Drug Administration (FDA).[4] Yet FDA retains regulatory authority over them, as it does with other non-prescription, over-the-counter products.[5]
Homeopathy is an alternative approach to healthcare remedies grounded in the belief that the human body can be prompted to cure itself. Tracing its roots back to ancient Egypt and Greece, homeopathy was systematized in the 1700s by a German physician.[6] It is anchored in two theories—“like-cures-like,” the view that diseases can be treated successfully with substances that trigger similar symptoms in healthy persons; and “law-of-infinitesimals,” the view that significantly diluted aqueous solutions created from those triggering substances will be “imprinted” with the memory of the therapeutic properties of that substance.[7]
Whether homeopathic treatments are effective in treating health conditions remains a vigorously debated question. Some research suggests that they might be effective in certain contexts, while other research concludes they are not.[8] An often-cited 2010 report released in the United Kingdom by the House of Commons Science and Technology Committee pronounced “the settled view of medical science” that the central homeopathic principle (“like-cures-like”) is “theoretically weak” and lacking “a credible physiological mode of action”; that the “imprinting” theory of substance dilutions is “scientifically implausible”; and that “systematic reviews and meta-analyses conclusively demonstrate that homeopathic products perform no better than placebos.”[9] Seven years later, the English National Health Service announced that it would no longer fund homeopathic treatments.[10]
Historically, homeopathic remedies were prepared specially for individual patients by those physicians who personally embraced homeopathy. But that changed. More recently, demand for homeopathic products increased meaningfully.[11] Estimates valued the global homeopathy market at nearly $18 billion in 2021 with growth forecasted to more than $50 billion by 2028.[12] Predictably, this rising demand led to mass manufacture and broad marketing of homeopathic products as over-the-counter remedies.[13] Enter Walmart and CVS Pharmacy.
B. The Plaintiff—Center for Inquiry, Inc.
The Center for Inquiry, Inc. (CFI) is a nonprofit 501(c)(3) organization committed to the mission of “foster[ing] a secular society based on reason, science, freedom of inquiry, and humanist values.”[14] CFI insists that homeopathy “is a pseudoscience and that the concepts on which it is based ‘contradict the most fundamental understanding of science.’”[15] Motivated by a longstanding objective of “discouraging reliance on pseudoscience and pseudoscientific products”—a category to which it contends homeopathic products belong—CFI has evidently committed itself to having homeopathic products removed from the marketplace.[16]
CFI’s two complaints claimed that, by shelving homeopathic products alongside “science-based” medicines in aisles labeled for cold, cough, and flu relief, Walmart and CVS Pharmacy violated the codified rights of consumers to truthful information about products purchased within the District of Columbia.[17] More precisely, CFI charged that the two stores violated D.C.’s unfair or deceptive trade practices statute, which provides a remedy (“whether or not any consumer is in fact misled, deceived, or damaged thereby”) for: representing that goods have “characteristics, ingredients, uses, benefits, or quantities that they do not have . . . [or] are of particular standard, quality, grade, style, or model, if in fact they are of another”; misrepresentations “as to a material fact which has a tendency to mislead”; failing “to state a material fact if such failure tends to mislead”; or using “innuendo or ambiguity as to a material fact, which has a tendency to mislead.”[18]
C. The Court Rulings
The D.C. trial judges dismissed the two CFI complaints for lack of statutory standing and for failing to state a cognizable civil claim. After the two dismissals were consolidated for appeal, the District of Columbia Court of Appeals reversed and remanded. Preliminarily, the appeals court ruled that CFI had demonstrated an adequate nexus to the interests of District of Columbia cold, cough, and flu product customers sufficient to establish statutory standing. While that is interesting, it is the appeals court’s second ruling on the tenability of the CFI complaints’ claims that merits our attention.
Walmart and CVS Pharmacy faulted the complaints’ failure to state a claim upon which relief could be granted, noting that neither complaint indicted the content of the homeopathic products’ labeling or otherwise suggested some labeling inadequacy.[19] Indeed, the record seemed to establish that the products at issue all properly contained the word “homeopathic” on their carton labeling and bore the federally required statements that the products had not been evaluated by FDA.[20] CFI’s challenge was different, limited solely to product placement—that the shelving of homeopathic products alongside “science-based medicines” had the tendency to mislead D.C. customers into believing that the products were comparable in effectiveness. It was that theory that the stores challenged as a deficient claim under the D.C. unfair trade practices statute.
To test the pleaded adequacy of a civil claim, the District of Columbia applies the familiar Twiqbal “plausibility”[21] approach:
To survive a motion to dismiss for failure to state a claim, a complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face,” and the “factual allegations must be enough to raise a right to relief above the speculative level.” “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” To permit such an inference, the factual allegations must “nudge[ ] [the plaintiff’s] claims across the line from conceivable to plausible.” In reviewing whether dismissal of a complaint was warranted, “we accept the allegations of the complaint as true, and construe all facts and inferences in favor of the plaintiff.”
“[N]aked assertion[s] devoid of further factual enhancement” will not survive a motion to dismiss. Still, at the pleading stage, a plaintiff’s burden “is not onerous.” The issue presented by a motion to dismiss “is not whether [the] plaintiff will ultimately prevail but whether [it] is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.” “[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.”[22]
The trial judges ruled that the complaints failed this plausibility inquiry, thus warranting their dismissals, because the stores’ product-placement practices: 1) did not amount to a “representation” of product efficacy within the meaning of the D.C. trade practices statute; and 2) did not have a tendency to mislead consumers within the meaning of that statute. In reversing, the appeals court disagreed with the first conclusion and deferred the second conclusion to the province of the jury.
First, to be actionable under the D.C. statute, the appeals court ruled that a “representation” need not be verbal: “‘acts,’ not just words or statements, fall within the scope of the unfair or deceptive trade practices prohibited by the” D.C. statute.[23] Such a construction was found to be consistent both with this statute’s liberal, remedial purpose and with the reach given by other courts interpreting similar trade practices statutes so as to encompass “practices such as product placement, misleading imagery, and other non-verbal cues.”[24]
Second, the appeals court explained that a tendency-to-mislead is assessed “in terms of how the practice would be viewed and understood by a reasonable consumer,” questions ordinarily reserved for a factfinder.[25] While acknowledging that, in an unusual case, the context-specific task of assessing plausibility might allow for a dismissal as a matter of law, the appeals court was persuaded that the complaints’ pleaded facts, combined with the judicially noticeable public record, established the requisite plausibility to survive dismissal.
As for the pleaded facts, the appeals court noted that CFI alleged: that both stores market themselves as selling products to aid in customer health; that customers routinely turn to the stores’ pharmacies for such relief; that research and experience establishes that homeopathic products are ineffective; that homeopathic products are displayed in both stores alongside FDA-approved products; that aisle signage directs customers to the displayed products for illness relief; and that the stores fail to inform customers that scientific evidence does not support homeopathic product efficacy.[26]
Regarding the public record, the appeals court noted that the U.S. Federal Trade Commission had published an official enforcement policy that corroborated the complaints’ plausibility. The FTC policy commented that many consumers are unfamiliar with “homeopathy” and, as such, merely noting a product’s homeopathic nature would not adequately afford consumers notice that the product’s efficacy was “not backed by scientific evidence.” And even that notice would be inadequate, reasoned the Commission, because not-supported-by-scientific-evidence “does not convey the truly limited basis for the efficacy claim and that, to avoid deceiving consumers, it is likely necessary to explain that [homeopathy] is not accepted by modern medicine.”[27]
In the end, the appeals court wrote that it could not find it implausible that a reasonable consumer might understand the stores’ shelving decisions as a nonverbal representation “that the homeopathic products are efficacious or are equivalent alternatives to the FDA-approved over-the-counter drugs alongside which they are displayed.”[28] Thereupon, although reversing the trial judges’ dismissals, the appeals court was quick to add that CFI’s allegations might not suffice “to defeat summary judgment or to prevail at trial.”[29]
III. Impact
Assessing the jurisprudential impact of Center for Inquiry Inc. v. Walmart, Inc. leads to at least three important observations: 1) an adventuresome reliance on nonverbal, product placement representations can (sometimes) support a cognizable unfair trade practices claim; 2) notwithstanding its many well-placed critics, the Twiqbal plausibility test can (sometimes) prove quite formidable; and 3) the “reasonable consumer” deception standard is (often) impervious to pleadings-based attacks.
A. Product Placement (Shelving) Can Constitute a “Representation”
Modern products law rests typically on proving that a claimant’s injury or loss was caused by one (or more) defects in the challenged product: that the product’s design was defective, or its production/manufacture/assembly was defective, or its warnings or instructions were defective.[30] CFI alleged no such product defect. Instead, its claim rested on how and where the homeopathic products were displayed to customers. At first blush, the theory feels viscerally specious.[31] Yet it is not without some conceptual grounding.
The D.C. Court of Appeals surveyed case law from other jurisdictions that accepted, at least at the pleading stage, that nonverbal product conduct could be legally consequential. For example, a Missouri federal court had earlier ruled that the shelving of obsolete motor oils next to non-obsolete motor oils could deceptively induce unsophisticated customers into buying a cheaper but valueless, and potentially vehicle-damaging, product in violation of the state’s consumer protection statute.[32] The D.C. court also noted, in the trademark infringement context, a federal court’s musings that product shelf positioning could be a purposeful strategy to drive customer product selection.[33] The appeals court need not have stopped with these two citations; further grounding in products theory exists generally.
Much of today’s products litigation is fought with common law principles—negligence, strict liability, misrepresentation, and warranty, with a formidable smattering of federal and state statutory tools sprinkled in. Most jurisdictions, for example, have enacted statute-based unfair trade practices laws, as the District of Columbia did in this case. Although this array of product liability litigating approaches may seem disparate, it is quite wrong to consider them each hermetically cordoned off from one another. To the contrary, there is a healthy degree of theoretical cross-pollination. Thus, evolution and developments in one products sector are often harbingers of change in others.
The law of tortious misrepresentation, for example, hinges on the communication of information to another in a manner that the law finds actionable. The obvious starting predicate for this tort is a “representation,” just as it is in the D.C. unfair trade practices statute. In the common law of tortious misrepresentation, “[i]nformation usually is communicated by spoken or written word, but it may also be conveyed pictorially or by conduct.”[34] Thus, nonverbal communications can be instruments of tortious misrepresentation.
So, too, the law of express warranty lies in “affirmative assertions, made by a seller in connection with a sales transaction, that a product possesses certain characteristics.” This type of warranty “springs from a seller’s words or other forms of communication”; while the law ordinarily sets “no fixed manner by which an express warranty must be created,” courts acknowledge that “express representations need not always be in words, for a description of an article may be pictorial, or presented by blueprint, technical specifications, samples, models, or even by past deliveries.”[35] The Uniform Commercial Code confirms the nuance in Section 2-313 (“Express Warranties by Affirmation, Promise, Description, Sample”), noting that a “description of goods” or a “sample or model” can create an express warranty that the goods “shall conform” to the description, sample, or model.[36]
Thus, the notion that nonverbal behavior can qualify in the law as a liability-triggering “representation” is hardly unprecedented. Nor, on reflection, is it conceptually unsound. A representation is a communication of information in such a manner as to create an expectation or reliance. Viewed in this light, CFI’s contention that an inference can arise from the homeopathic products’ shelving neighbors seems less implausible. It might well be that a jury ultimately rejects CFI’s product-placement misrepresentation theory as too attenuated or fanciful, but the invitation to declare the theory foreclosed as a matter of law would appear at least inconsistent with how the law of tortious misrepresentation and express warranty have developed over time. In the end, the debate that CFI invited was not that acetaminophen ought not to be shelved next to ibuprofen, but that shelves containing pain relievers nonverbally telegraph to customers that all products displayed there provably relieve pain (in at least some cohort of customers).[37]
B. Twiqbal is Not Necessarily a Push-Over
It has become commonplace during federal pleadings attacks to recite the mercurial dimensions of Twiqbal plausibility, so much so that the eye of both jurist and practitioner might gloss idly past this routine. The D.C. Court of Appeals’ decision here demonstrates why so breezy a discounting may be unwarranted.
“Plausibility” obligates the pleader to burnish a complaint with “enough facts” to state a claim that is “plausible on its face,” one that has been “nudged” by its allegations “across the line from conceivable to plausible.”[38] Detailed facts are not necessary, but nor will “an unadorned, the-defendant-unlawfully-harmed-me accusation” suffice.[39] The “plausibility” pleader’s target, then, is to aver a tale that is factual (not conclusory) and suggestive (not neutral); the pleading must include those facts needed to “raise the right to relief above the speculative level,”[40] thereby allowing a court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.”[41]
Mindful of these testing principles, if one were to categorize Twiqbal challenges, three camps of indictment seem to emerge.
First, a pleading may be implausible because it contains only bare conclusions, elements, labels, and formulas, devoid of any supportive factual content. Plainly, that effort squarely fails the “plausibility” test.[42]
Second, a pleading may be implausible because the inference reasonably drawn from the alleged facts points as equally to culpability as it does to innocence. Here, too, the effort fails the test.[43]
Third, a pleading may be implausible when, relying on its “judicial experience and common sense,” a court reaches the “context-specific” assessment that unlawful conduct is not suggested by the facts alleged.[44] Here, the spectre of the type of subjective, fact/inference parsing, so decisively inappropriate during a pleadings attack, is at its most troubling. But though the risk of judicial mischief cannot be denied, the “plausibility” inquiry adds important restraints that tend to mitigate that concern—a) the regime remains “notice” pleading, a burden characterized as not onerous; b) detailed factual allegations are still not required; c) pleading every fact necessary to sustain a merits burden is also not required; d) failing to support a chosen legal theory does not doom the claim if the allegations support relief under a different, viable theory; e) weighing the pleader’s likelihood of success is not proper, nor will doubting the pleader’s chances before a jury warrant a dismissal; and f) choosing between several plausible, yet competing inferences remains verboten.[45]
When applied here, the Twiqbal “plausibility” principles led the appeals court, albeit cautiously, to rule that the CFI complaints sufficed to survive the pleadings stage. The pleaded claims were more than conclusions, labels, and formulas; they offered supportive facts with context. Although plausible that some consumers would understand “homeopathy” and appreciate its distinctiveness, the appeals court found that the pleaded facts supported as also plausible that other, reasonable consumers would be misled. Cordoned in by the restraints the “plausibility” test imposes, the court concluded that its “context-specific” assessment of the complaints’ allegations had revealed a claim nudged to the requisite showing of an entitlement to relief.[46]
C. The Impervious Nature of “Reasonable Consumer” Pleadings
As noted earlier, the D.C. Consumer Protection Procedures Act (like many other unfair trade practices statutes) examines unfairness and deception through the lens of the elusive “reasonable consumer.” Such a standard is quintessentially context-driven, loosely bounded, immune from precise definition, summoning an intensely but fundamentally amorphous, fact-based examination. The whole notion of a “reasonable person” has been bedeviling the law for years:
Courts seem to reach for the reasonable person when they have a sense that an inquiry demands both some sensitivity to the particular qualities or attributes of the involved individuals as well as a more objective or fixed dimension. But if this is true, it is equally true that the test is characterized by a lack of clarity about the exact nature of the subjective and objective characteristics of the reasonable person. . . . The consequence is that while the reasonable person undoubtedly possesses a certain “common sense” appeal, it has proven extremely difficult to systematize his significance.
However, looking at the reasonable person across his many appearances makes at least one thing clear—he is most often the common or ordinary man. . . . [B]oth in the context of the law of negligence and in the criminal context, the objective content of the reasonable person is closely linked to standards of ordinariness or normalcy. . . . Indeed, many of the early critiques of the reasonable person focused on the looseness of the idea of what is ordinary. They worried in particular about whether the reasonable man (as he then was) was in fact anything more than just a vehicle for the judge’s own beliefs and attitudes.[47]
Relegated to so pliable a concept as the “reasonable consumer,” one should expect that, in the event a pleadings attack finds itself at this point in the legal analysis, the attack is almost certain to fail.[48]
To soften the point, the appeals court observed that it has, on occasion, dismissed pleadings for failing to state a cognizable unfair trade practices claim, but the two case examples the court offered tended to defy common sense or widely shared experiences.[49] The implication of the court’s choice of citations is that dismissal should be understood as the exception, not the rule. The same is likely true wherever the “reasonable consumer” serves as the vehicle for remedy entitlement.
* * *
“Matching” is embedded into our very jurisprudence. The canon of interpretation noscitur a sociis (“it is known by its associates”) directs that “[w]hen several nouns or verbs or adjectives or adverbs—any words—are associated in a context suggesting that the words have something in common, they should be assigned a permissible meaning that makes them similar.”[50] Thus framed, Walmart’s and CVS Pharmacy’s motion to dismiss CFI’s product-shelving deception theory may have posed an uphill climb from the start. Shelved together, no lesser authorities than Gene Rayburn and Antonin Scalia have encouraged us (and courts) to see the match.
* William M. Janssen is a professor of law at the Charleston School of Law in Charleston, South Carolina, where he teaches products liability, mass torts, civil procedure, and constitutional law.
[1] 283 A.3d 109 (D.C. Ct. App. Sept. 29, 2022).
[2] D.C. Code §§ 28-3901–13.
[3] Center for Inquiry, 283 A.3d at 112.
[4] See Homeopathic Products, U.S. Food & Drug Admin. (Dec. 7, 2022), https://www.fda.gov/drugs/information-drug-class/homeopathic-products (“There are no FDA-approved products labeled as homeopathic; this means that any product labeled as homeopathic is being marketed in the U.S. without FDA evaluation for safety or effectiveness.”).
[5] See 21 U.S.C. § 321(g)(1)(A) (defining the term “drug” as used in FDCA to include “articles recognized in the . . . official Homoeopathic Pharmacopoeia of the United States”).
[6] See id.
[7] See U.S. Food & Drug Admin., Homeopathic Drug Products—Guidance for FDA Staff and Industry 1–2 (Dec. 2022), https://www.fda.gov/regulatory-information/search-fda-guidance-documents/drug-products-labeled-homeopathic-guidance-fda-staff-and-industry [hereinafter FDA, Homeopathic Drug Products].
[8] Compare, e.g., What is Homeopathy?—Does It Work?, WebMD (Mar. 22, 2021), https://www.webmd.com/balance/what-is-homeopathy (“Research is mixed. Some studies show that homeopathic remedies are helpful, while others don’t. Critics chalk up the benefits to the placebo effect.”), with Homeopathy: What You Need to Know, Nat’l Insts. of Health: Nat’l Ctr. for Complementary & Integrative Health, https://www.nccih.nih.gov/health/homeopathy (“There’s little evidence to support homeopathy as an effective treatment for any specific health condition.”) (last updated Apr. 2021).
[9] House of Commons—Science & Technology Comm.—Fourth Report ¶¶ 54, 61 & 70 (2010), https://publications.parliament.uk/pa/cm200910/cmselect/cmsctech/45/4504.htm#a11.
[10] See Homeopathy, Nat’l Health Serv., https://www.nhs.uk/conditions/homeopathy/ (last updated Apr. 7, 2021).
[11] See Homeopathy: What You Need to Know, supra note 8 (citing 2012 survey to estimate that in 2011, 5 million adults and 1 million children used homeopathic products, most without guidance from homeopathic practitioners; instead, analysis suggests that adults mostly “self-prescribe[d] them for colds and musculoskeletal pain”).
[12] See Insights on Global Homeopathy Products Market Size & Share Projected to Hit at USD 50,203.3 Million and Rise at a CAGR of 18.7% By 2028: Industry Trends, Demand, Value, Analysis & Forecast Report, Cision PR Newswire (Zion Market Research May 17, 2022), https://www.prnewswire.com/news-releases/insights-on-global-homeopathy-products-market-size–share-projected-to-hit-at-usd-50-203-3-million-and-rise-at-a-cagr-of-18-7-by-2028-industry-trends-demand-value-analysis–forecast-report–zion-market-research-301549050.html.
[13] See FDA, Homeopathic Drug Products, supra note 7.
[14] Our Mission, Ctr. for Inquiry, https://centerforinquiry.org/about/. See also id. (“To move forward, we need to discard old superstitions, prejudices, and magical thinking and embrace facts, evidence, and critical thinking.”).
[15] Center for Inquiry, 283 A.3d at 112.
[16] See id. at 115–17.
[17] See id. at 116.
[18] D.C. Code §§ 28-3904(a), (d), (e), (f) & (f-1).
[19] See Center for Inquiry, 283 A.3d at 121 n.13.
[20] See id. at 113.
[21] “Twiqbal” has become the handy moniker to refer collectively to the U.S. Supreme Court’s federal pleading decisions in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See, e.g., RHJ Med. Ctr., Inc. v. City of DuBois, 754 F. Supp. 2d 723, 730 (W.D. Pa. 2010) (identifying “Twiqbal” as how the Supreme Court’s Iqbal and Twombly decisions are now “commonly known”).
[22] See Center for Inquiry, 283 A.3d at 117–18 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009)) (cleaned up).
[23] See id. at 118–19.
[24] See id. at 118.
[25] See id. at 120.
[26] See id. at 122.
[27] See id. at 122–23 (quoting Enforcement Policy Statement on Marketing Claims for OTC Homeopathic Drugs, 81 Fed. Reg. 90,122, 90,123 n.15 (Dec. 13, 2016)). See also id. at 90,123 (proffering this tepid safe-harbor: “the promotion of an OTC homeopathic product for an indication that is not substantiated by competent and reliable scientific evidence may not be deceptive if that promotion effectively communicates to consumers that: (1) There is no scientific evidence that the product works and (2) the product’s claims are based only on theories of homeopathy from the 1700s that are not accepted by most modern medical experts”).
[28] See Center for Inquiry, 283 A.3d at 123.
[29] See id. at 123 & n.17 (“Summary judgment is the proverbial ‘put up or shut up’ moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events.”) (citation omitted). See also Enforcement Policy Statement on Marketing Claims for OTC Homeopathic Drugs, 81 Fed. Reg. at 90,123 n.15 (“Marketers are advised to develop extrinsic evidence, such as consumer surveys, to determine the net impressions communicated by their marketing materials.”).
[30] See David G. Owen, Products Liability Law 35–37 (4th ed.2022).
[31] As it usually does, the Drug & Device Law Blog makes the point eloquently: “What’s next? Lawsuits claiming that it is deceptive to put margarine next to butter? Veggie burgers next to meat? OTC drugs next to dietary supplements? Diet soda next to sugary soda? Fiction next to non-fiction? The potential for abuse and expensive discovery is obvious.” Steven Boranian, The Shelves Have Eyes, Drug & Device Law Blog (Oct. 6, 2022), https://www.druganddevicelawblog.com/2022/10/the-shelves-have-eyes.html.
[32] See In re Dollar Gen. Corp. Motor Oil Mktg. & Sales Pracs. Litig., 2017 WL 3863866 (W.D. Mo. Aug. 3, 2017).
[33] See 1-800 Contacts, Inc. v. WhenU.Com, Inc., 414 F.3d 400, 411 (2d Cir. 2005) (“a drug store typically places its own store-brand generic products next to the trademarked products they emulate in order to induce a customer who has specifically sought out the trademarked product to consider the store’s less-expensive alternative”).
[34] See Owen, supra note 30, at 115.
[35] See id. at 153–57.
[36] U.C.C. § 2-313(1)(b)–(1)(c).
[37] This is, of course, not to say that homeopathic products actually fail in such a comparison, only that CFI’s fact-based allegations contend that they do.
[38] Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
[39] Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
[40] Twombly, 550 U.S. at 555 & 557 n.5.
[41] Iqbal, 556 U.S. at 678.
[42] See Twombly, 550 U.S. at 555, 557 (“naked assertion[s],” “labels and conclusions,” and “a formulaic recitation of the elements of a cause of action will not do”).
[43] See Iqbal, 556 U.S. at 678 (“Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’”) (quoting Twombly).
[44] See id. at 679.
[45] See Steven Baicker-McKee & William M. Janssen, Federal Civil Rules Handbook 490–91 (2023).
[46] See D.C. Sup. Ct. R. Civ. P. 8(a)(2) (“A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief . . . .”).
[47] Mayo Moran, The Reasonable Person: A Conceptual Biography in Comparative Perspective, 14 Lewis & Clark L. Rev. 1233, 1235–36 (2010).
[48] See generally Prosser and Keeton on the Law of Torts 175 (5th ed. 1984) (“The courts have gone to unusual pains to emphasize the abstract and hypothetical character of this mythical person. He is not to be identified with any ordinary individual, who might occasionally do unreasonable things; he is a prudent and careful person, who is always up to standard. Nor is it proper to identify him with any member of the very jury which is to apply the standard; he is rather a personification of a community ideal of reasonable behavior, determined by the jury’s social judgment.”).
[49] See Center for Inquiry, 283 A.3d at 121 n.12 (ten-digit “domestic-looking” telephone number did not create reasonable expectation that customer representative would be located in the United States, nor did practice of reporting long-distance telephone calls in full-minute increments create reasonable belief that all calls actually terminated at end of a full minute).
[50] Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 31 (2012).
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