insisted that a defendant’s conduct “must violate public policy, be so oppressive as to
leave the consumer with little alternative but to submit, and injure the consumer.”
Saunders, 662 N.E.2d at 608 (citing People ex rel. Hartigan v. Knecht Services, Inc., 575
N.E.2d 1378 (1991)). In this case Anthony alleges that the mere act of marketing
adulterated food, by itself, is an unfair practice. But there is a total absence of
oppressiveness necessary to establish an unfair practice; Anthony was not deceived and
was free to purchase other manufacturers’ nutrition bars or to forego her purchase
altogether. Country Life’s act of producing and marketing adulterated food does not
rise to the level required by Illinois courts to establish an unfair practice. Cf. Ekl v.
Knecht, 585 N.E.2d 156 (Ill. App. Ct. 1991) (holding that a plumber who threatened to
undo his work and turn off the plaintiffs water if not immediately paid an
unreasonably high fee engaged in an unfair practice); Elder v. Coronet Ins. Co., 558
N.E.2d 1312 (Ill. App. Ct.1990) (holding that insurance company’s act of requiring
insured to submit to polygraph examinations rather than supply sworn affidavits in
support of claims was an unfair practice because it required insured to file suit or
forego recovery); People ex rel. Fahner v. Hedrich, 438 N.E.2d 924 (Ill. App. Ct. 1982)
(holding that owner of a mobile home park liable under CFA for prohibiting park
residents from selling their sites without paying transfer fee because residents had no
reasonable alternative other than to pay the fee); see also Barr Co. v. Safeco Ins. Co.,
583 F. Supp. 248 (N.D. Ill. 1984) (holding that the plaintiff had stated a cause of action

against the defendant insurer, who allegedly engaged in a practice of not paying



Anthony's breach of warranty claims fare no better. An express warranty
requires an affirmative fact or promise or a description of the goods. 815 ILCS § 5/2-
313; Hasek v. DaimlerChrysler Corp., 745 N.E.2d 627, 634 (Ill. App. Ct. 2001).
Anthony argues, but cites no precedent in support, that by causing the nutrition bars
to be placed on store shelves for sale, Country Life has made an express promise to
potential buyers. Anthony has confused express and implied warranties. Express
warranties are distinguished from implied warranties, which are “derived form the
interplay of a transaction’s factual circumstances with the foreseeable expectations of
a buyer ... and [which] arise regardless of an affected seller's actual wishes.” Collins
Co. v. Carboline Co, 523 N.E.2d 834, 838 (I. 1988). Anthony identifies no affirmative
fact or promise made by Country Life to her and thus has not stated a claim for a
breach of an express warranty.

Anthony’s claims for breach of an implied warranty of merchantability and
implied warranty for a particular purpose also fail because Anthony failed to give
notice before filing suit. Section 2-607 of the Uniform Commercial Code states in
relevant part:

The buyer must within a reasonable time after he discovers or should have

discovered any breach notify the seller of breach or be barred from any remedy

... or be barred from any remedy over for liability established by the litigation.

810 ILCS 5/2-607(3)(a); see also 810 ILCS 5/2-714 (requiring notice before recovery of
damages).

The Illinois Supreme Court has interpreted Section 2-607(3)(a) to require a

buyer to notify the seller of the “troublesome” nature of the particular transaction. See



The elements of a cause of action under the Consumer Fraud Act include: (1) a
deceptive act or unfair practice; (2) defendant’s intent that the plaintiff relies on the
deceptive act or unfair practice; (3) the act or practice occurred in the course of conduct
involving trade or commerce; and (4) the act or practice proximately caused injury to
plaintiff. Connick v. Suzuki Motor Co., Ltd., 675 N.E.2d 584, 593 (II. 1997); Casualty
Ins. Co. v. Hill Mech. Gr., 753 N.E.2d 370, 376 (I. App. Ct. 2001). Anthony cannot
establish that the defendant engaged in a deceptive act or unfair practice. Anthony
expressly disavows any claim that Country Life engaged in a deceptive act. (Pl. Resp.
Mot. Dismiss at 3). Instead, Anthony argues that Country Life engaged in an unfair
practice by producing and marketing nutrition bars that contain non-FDA approved
ingredients. Under Illinois law, unfair practices are those that offend public policy, are
oppressive, or cause consumers substantial injury. Saunders v. Michigan Ave. Natl
Bank, 662 N.E.2d 602, 608 (Ill. App. Ct. 1996).

Anthony argues that the making and manufacturing of adulterated food offends
public policy and is “immoral, unethical and unscrupulous,” and thus amounts to an
unfair practice. But Illinois’ Consumer Fraud Act exists as “‘a regulatory and remedial
statute intended to protect consumers, borrowers and business persons against fraud,
unfair methods of competition, and other unfair and deceptive business practices,”
such as the use of contracts of adhesion or the imposition of unconscionable terms in
contracts. Weatherman v. Gary-Wheaton Bank of Fox Valley, N.A., 713 N.E.2d 548, 547

(1999) (quoting Cripe v. Leiter, 703 N.E.2d 100, 103 (1998)). Illinois courts have



promptly and completely claims in an effort to negotiate settlement payments that
were less than the full and fair value of the insured’s claims). Therefore, the Court
finds that as a matter of law, Anthony cannot establish that Country Life engaged in
a deceptive act or unfair practice.

Even if Anthony could demonstrate that Country Life engaged in an unfair
practice, her claim would still fail. That is because Anthony has failed to allege any
facts to demonstrate that Country Life’s manufacturing of adulterated nutrition bars
is the proximate cause of her injuries. Proximate cause can be established only when
there is a "reasonable certainty" that the defendant's acts caused the injury. Friedman
v. Safe Sec. Serv., Inc., 765 N.E.2d 104,114 (Ill. App. Ct. 2002). Anthony points to only
one act on the part of Country Life that she contends offended the CFA: Country Life’s
act of manufacturing and marketing adulterated nutrition bars. Similarly, Anthony
points to her direct economic loss—the cost of purchase—as her only injury. But it is
plain that Country Life’s act in manufacturing and marketing the nutrition bars did
not cause Anthony to purchase them, as Anthony does not allege that she was in any
way deceived (indeed she expressly disavows that claim). Instead, Anthony merely
claims that she was injured because she purchased the defendant’s nutrition bars and
that she could not have purchased them if the defendant had complied with FDA
regulations. This is “but-for” causation, not proximate causation. Therefore the Court
finds that Anthony’s claim also fails because as a matter of law she can not establish

that defendant’s actions proximately caused her injuries.


Connick, 675 N.E.2d at 590; see also Tudor v. Jewel Food Stores, Inc., 681 N.E.2d 6, 10-
11 (IL App. Ct. 1997). It is not sufficient that the seller be aware of problems with a
product line—section 2-607 is satisfied “only where the manufacturer is somehow
apprised of the trouble with the particular product purchased by a particular buyer.”
Connick, 675 N.E.2d at 590. An exception to the notice requirement of section 2-607
exists where a buyer suffers a personal (rather than purely economic) injury. See
Tudor, 681 N.E.2d at 11. The reason for the notice requirement is simple: the UCC
prefers that the breach be cured without the lawsuit, and requiring consumers to first
contact the manufacturer before filing suit allows the manufacturer to address the
breach. See Connick, 675 N.E.2d at 591. Anthony concedes that she suffered no
personal injury and that she failed to first notify Country Life before filing this suit.
Accordingly, plaintiffs breach of implied warranty claims must also be dismissed.

For the foregoing reasons, defendant’s motion to dismiss all four of plaintiffs

counts is GRANTED.
ITIS SO ORDERED.
Date:__4¢@47f 02, Zh ew
William J.ibbler, Judge
United States District Court
8



2
’

‘Mieriytrder Form (06/97)
; United States District Court, Northern District of Illinois

Ne Mage Judge William J. Hibbler “than Auiged Judge
CASE NUMBER 02 C 1601 DATE October 7, 2002
CASE Katherine Anthony v. Country Life Manufacturing L.L.C., d/b/a Biochem
TITLE

(Ia the following box (2) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the
nabure of the motion being presented.)

MOTION:
Defendants’ Motion to Dismiss (Doc. # 9)
DOCKET ENTRY:
(1) o Filed motion of [ use listing in “Motion” box above.]
(2 Qa Brief in support of motion due
Q) is) Answer brief to motion due___. Reply to answer briefdue__-
4) a Ruling/Hearingon__setfor__—_aat
(5) a Status hearing [held/continued to] [set for/re-set for] on setfor__at
(3) in Pretrial conference [held/continued to] [set for/re-set for]on__setfor__— at
” a Trial [set for/re-set for]on___at
(8) a [Bench/Jury trial] [Hearing] held/continuedto at
(9) a This case is dismissed [with/without] prejudice and without costs [by/agreement/pursuant to]

CUFRCP4(m) OGeneral Rule21 OFRCP41(a)(1) GO FRCP41(a)(2).
(10) M@ [Other docket entry]

For the attached reasons, the Court DISMISSES Plaintiff's Complaint in its entirety pursuant to Fed, R. Civ. P. 12(b)(6). All other
pending motions are denied as moot.

(11) O [For further detail see order on the reverse side of the original minute order.]

No notices required, advised in open cour.
No notices required. unter ote
Notices mailed by judge's staff
Notified counsel by telephone, OT 92
oY | Docketing to mail notices.
V | Mail 40 450form. deck depuy ini G
Copy to judge/magistrate judge. qunee annoy
courtroom _. date rasiled novice
JHC depury's hh oe i)
deputy une ori
Date/time received in ;
central Clerk’s Office eming Spurs



pea

Lastly, Anthony’s claim must fail because it is preempted by the FDCA. The
authority to enforce the FDCA is vested solely in the federal government, and the Act
does not provide a private right of action. 21 U.S.C. §§ 336, 337; see also Martin v.
Ortho Pharm. Corp., 661 N.E.2d 352, 355-56 (Ill. 1996). Anthony’s claim, however, is
premised solely upon a violation of the FDCA—that defendant sold nutrition bars
containing ingredients that the FDA had not approved. She does not allege that she
was injured after consuming the bars. Cf. Braintree Labs., Inc. v. Nephro-Tech, Inc.,
1997 WL 94237, (D. Kan. 1997) (ruling that the FDCA preempted plaintiffs attempt
to use the Lanham Act to enforce the requirements of the FDA). Anthony cites Grove
Fresh Distributers, Inc. v. Flavor Fresh Foods, Inc., 720 F. Supp. 714 (N.D. Ill. 1989)
to suggest that her claim is not preempted. But Grove Fresh stands only for the
proposition that a plaintiff may rely on the FDCA to provide a standard that the
defendants failed to meet. See id. at 716. Grove Fresh might be applicable if Anthony
had become ill after consuming the bars and wished to use the FDCA to demonstrate
that defendant’s products had not met federal standards. But in this case, Anthony's
claim is unmistakably one for direct enforcement of the FDCA, for which no private
right of action exists.

For each of the foregoing reasons, Anthony’s claim under Illinois’ Consumer
Fraud Act is DISMISSED with prejudice under Fed. R. Civ. P. 12(b)(6).

B. Counts I-IV—Breach of Warranty Claims



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION DOCKETED
Katherine Anthony, ) oct 9 2002
)
Plaintiff, )
) No. 02 C 1601
v. )
) Judge William J. Hibbler
Country Life Manufacturing, L.L.C., )
d/b/a Biochem )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Katherine Anthony sued Country Life Manufacturing, claiming that
Country Life violated the Illinois Consumer Fraud and Deceptive Business Practices
Act (Consumer Fraud Act), 815 ILCS 6505/1, et seq. as well as breached both express
and implied warranties. Country Life moves under Fed. R. Civ. P. 12(b)(6) to dismiss
Anthony’s claims. The motion is fully briefed and ready for adjudication. For the
following reasons, the Court DISMISSES plaintiffs complaint in its entirety.

The factual basis of plaintiff's claims is simple. Plaintiff alleges that she
purchased the “Ultimate Lo Carb Bar” and the “Ultimate Lo Carb 2,” both
manufactured by the defendant, which contain ingredients that the Food and Drug
Administration had not approved as food additives (stevia extract and cholecalciferol,
respectively). According to plaintiff, the bars are “adulterated” food products under the
Food, Drug and Cosmetic Act (FDCA), 21 U.S.C. § 342(a)(2)(C)(1). Plaintiff argues

that Country Life violated the Illinois Consumer Fraud Act and the Illinois Uniform

\\



Commercial Code because it knowingly placed “adulterated” bars into the stream of
commerce.

Motions to dismiss under Rule 12(b)(6) test the sufficiency of the complaint
rather than the merits of the case. The Court must construe all allegations in the
complaint in the light most favorable to the plaintiff, taking all well- pleaded facts and
allegations within the complaint as true. Bontkowski v. First Natl Bank of Cicero, 998
F.2d 459, 461 (7th Cir.1993). Defendants must meet a high standard to prove the
complaint should be dismissed for the failure to state a claim upon which relief could
be granted, and a plaintiff's complaint should only be dismissed if "it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

A. Count I—Consumer Fraud Act Claim

Anthony’s claim under the Consumer Fraud Act fails for several reasons. First,
even construing the allegations in the light most favorable to the plaintiff, the Court
finds that, under no set of facts, could Anthony establish two of the four elements
required to demonstrate violation of the CFA. Further, the claim amounts to nothing
other than an attempt to enforce the FDCA. Plaintiff seeks to appoint herself as a
private administrator of the FDCA—a statute which contains no private right of action.
Because Anthony cannot establish the required elements and because her claim is
preempted by the FDCA, the Court holds that she has failed to state a claim under the

CFA, and Count I must be dismissed.