United States Court of Appeals
`For the First Circuit
`
`
`
`No. 17-2131
`MARGARET LEE, on behalf of herself and all others similarly
`situated,
`
`Plaintiff, Appellant,
`v.
`CONAGRA BRANDS, INC.,
`Defendant, Appellee,
`ROCHE BROS. INC.; ROCHE BROS. SUPERMARKETS, INC.; ROCHE BROS.
`SUPERMARKETS, LLC; STOP & SHOP SUPERMARKET COMPANY LLC,
`
`Defendants.
`
`APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`[Hon. Richard G. Stearns, U.S. District Judge]
`
`
`Before
`
`Howard, Chief Judge,
`Kayatta, Circuit Judge,
`and Torresen,* U.S. District Judge.
`
`
`Patrick J. Vallely, with whom Edward F. Haber and Shapiro
`Haber & Urmy LLP were on brief, for appellant.
`Angela M. Spivey, with whom R. Trent Taylor and McGuire Woods
`LLP were on brief, for appellee.
`
`
`
`
`
`
`
`* Of the District of Maine, sitting by designation.
`
`
`For the First Circuit
`
`
`
`No. 17-2131
`MARGARET LEE, on behalf of herself and all others similarly
`situated,
`
`Plaintiff, Appellant,
`v.
`CONAGRA BRANDS, INC.,
`Defendant, Appellee,
`ROCHE BROS. INC.; ROCHE BROS. SUPERMARKETS, INC.; ROCHE BROS.
`SUPERMARKETS, LLC; STOP & SHOP SUPERMARKET COMPANY LLC,
`
`Defendants.
`
`APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`[Hon. Richard G. Stearns, U.S. District Judge]
`
`
`Before
`
`Howard, Chief Judge,
`Kayatta, Circuit Judge,
`and Torresen,* U.S. District Judge.
`
`
`Patrick J. Vallely, with whom Edward F. Haber and Shapiro
`Haber & Urmy LLP were on brief, for appellant.
`Angela M. Spivey, with whom R. Trent Taylor and McGuire Woods
`LLP were on brief, for appellee.
`
`
`
`
`
`
`
`* Of the District of Maine, sitting by designation.
`
`
`
`May 7, 2020
`
`
`May 7, 2020
`
`
`
`
`
`
`
`HOWARD, Chief Judge. Margaret Lee purchased Wesson
`brand vegetable oil ("Wesson Oil") from grocery stores in Brookline
`and Mashpee, Massachusetts. The Wesson Oil label advertised that
`it was "100% Natural." After learning that Wesson Oil contained
`genetically modified organisms ("GMOs"), which Lee regarded as
`quite unnatural, she sued the manufacturer and distributer,
`Conagra Brands, Inc. ("Conagra"), in Massachusetts Superior Court.
`She sued on her own behalf and on behalf of others similarly
`situated. Lee alleged that, by labeling Wesson Oil "100% Natural,"
`Conagra violated Massachusetts's prohibition against unfair or
`deceptive trade practices. See Mass. Gen. Laws ch. 93A ("Chapter
`93A").1 Conagra removed the action to federal court, and the
`district court dismissed Lee's complaint for failure to state a
`claim. The district court determined that Wesson Oil's label was
`neither unfair nor deceptive as a matter of law because it
`conformed to the Food and Drug Administration's ("FDA") labeling
`policy. We reverse.
`
`I.
`We review de novo an order dismissing a complaint for
`failure to state a claim, and we reverse the dismissal if "the
`combined allegations, taken as true . . . state a plausible, not
`
`
`1 Lee originally named as co-defendants the supermarkets from
`which she bought Wesson Oil, but she later voluntarily dismissed
`them from the case.
`
`- 3 -
`
`
`
`a merely conceivable, case for relief." Sepúlveda-Villarini v.
`Dep't of Educ. of P.R., 628 F.3d 25, 29 (1st Cir. 2010) (citing
`Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); Bell Atl. Corp. v.
`Twombly, 550 U.S. 544, 570 (2007)). "In undertaking this review,
`'we accept as true all well-pleaded facts alleged in
`the complaint and draw all reasonable inferences therefrom in the
`pleader's favor.'" Lanza v. Fin. Indus. Regulatory Auth., 953
`F.3d 159, 162 (1st Cir. 2020) (quoting Nystedt v. Nigro, 700 F.3d
`25, 30 (1st Cir. 2012)). To the extent that Lee's Chapter 93A
`complaint sounds in fraud, it must meet Federal Rule of Civil
`Procedure 9(b)'s heightened pleading requirements. See Shaulis v.
`Nordstrom, Inc., 865 F.3d 1, 13 n.6 (1st Cir. 2017). "The
`circumstances to be stated with particularity under Rule 9(b)
`generally consist of the who, what, where, and when of the
`allegedly misleading representation." Kaufman v. CVS Caremark
`Corp., 836 F.3d 88, 91 (1st Cir. 2016) (alteration and quotation
`marks omitted).
`Although Conagra moved to dismiss the complaint on four
`grounds, the district court only addressed one; it agreed with
`Conagra that Wesson Oil's label was not unfair or deceptive as a
`matter of law because the label "conforms to FDA labeling policy."
`That policy essentially permits labeling a product as "natural" so
`long as it includes no added synthetic ingredients, like artificial
`colors or flavors. The district court also noted that the FDA
`
`- 4 -
`
`
`
`does not require the affirmative disclosure of GMOs' presence.
`Conagra raises three other arguments that the district court did
`not discuss. It submits: (1) that Lee fails to allege a cognizable
`Chapter 93A injury; (2) that the FDA affirmatively permits the
`"100% Natural" representation on Wesson Oil's label; and (3) that
`federal statutes -- namely, the Nutrition Labeling and Education
`Act, 21 U.S.C. § 343-1, and the National Bioengineered Food
`Disclosure Standard, 7 U.S.C. § 1639 et seq. -- preempt Lee's
`requested relief.
`
`II.
`We begin, as ever, with subject matter jurisdiction.
`Conagra removed the case and justifies federal jurisdiction under
`the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1332(d). CAFA
`requires minimal diversity and that at least $5,000,000 be in
`controversy. 28 U.S.C. § 1332(d)(2). Diversity is met because
`Lee is a resident of Massachusetts and Conagra is a Delaware
`corporation with its headquarters in Illinois. See id.
`§ 1332(d)(2)(A). Conagra is the removing party, so it "bears the
`burden to show with a 'reasonable probability' that the amount in
`controversy requirement is satisfied." Cooper v. Charter Commc'ns
`Entm'ts I, LLC, 760 F.3d 103, 106 (1st Cir. 2014). Lee does not
`contest jurisdiction, and we are at ease finding federal
`jurisdiction proper based upon the allegations in Lee's amended
`
`- 5 -
`
`
`
`complaint and Conagra's unchallenged representations. See Liu v.
`Amerco, 677 F.3d 489, 493 (1st Cir. 2012).
`Briefly, the complaint defines the class as "[a]ll
`persons who have purchased Wesson Oil products in Massachusetts
`that were labeled '100% Natural,'" and it is not limited to a
`specific period. The complaint seeks damages comprising "up to
`three times the damages that [Lee] and the Class incurred, or at
`the very least the statutory minimum award of $25 per purchase of
`a Wesson Oil product . . . together with all related court costs,
`attorneys' fees, and interest." In its Notice of Removal, Conagra
`noted that these Chapter 93A damages could potentially be trebled,
`and that, due to the large number of Wesson Oil purchases
`potentially at stake, the claims "yield an amount in controversy
`over and above the CAFA jurisdictional limit." Conagra has met
`its burden to show with a "reasonable probability" that $5 million
`is at stake. See id. ("It is not clear to a legal certainty that
`the amount in controversy is less than $5 million. So we proceed
`to the merits." (citation omitted)).
`III.
`We turn to the district court's rationale for dismissing
`Lee's complaint. The district court analyzed whether Wesson Oil's
`label was "unfair" within the meaning of Chapter 93A, but it did
`not cite or discuss the standard for whether the label was
`"deceptive." Chapter 93A bars "unfair or deceptive acts or
`
`- 6 -
`
`
`
`practices." Mass. Gen. Laws ch. 93A, § 2(a) (emphasis added).
`The proscription is disjunctive, so the district court should have
`separately addressed whether the complaint alleged sufficiently
`that Wesson Oil's label was deceptive. See 35 Mass. Prac. Consumer
`Law § 4:16 (3d ed. 2017) (observing that an act or practice
`violates Chapter 93A if it is "either unfair or deceptive" (citing
`Commonwealth v. DeCotis, 316 N.E.2d 748 (Mass. 1974); Mass. Farm
`Bureau Fed'n, Inc. v. Blue Cross of Mass., Inc., 532 N.E.2d 660,
`664 (Mass. 1989); Cherick Distribs., Inc. v. Polar Corp., 669
`N.E.2d 218, 221 (Mass. App. Ct. 1996))). For the reasons that
`follow, we conclude that Lee's complaint plausibly alleges that
`Wesson Oil's label violated Chapter 93A's prohibition against
`deceptive acts or practices.2
`When deciding whether conduct is deceptive under Chapter
`93A, Massachusetts courts are "guided by interpretations of
`["deceptive"] as found in the analogous Federal Trade Commission
`Act . . . 15 U.S.C. § 45(a)(1)." Aspinall v. Philip Morris Cos.,
`813 N.E.2d 476, 487 (Mass. 2004); see also Mass. Gen. Laws ch.
`93A, § 2(b). Those interpretations instruct that a food product
`label generally qualifies as deceptive in violation of Chapter 93A
`"when it has the capacity to mislead consumers, acting reasonably
`
`
`2 On appeal, Lee did not claim that the label was unfair, so
`she waived that argument. See United States v. Zannino, 895 F.2d
`1, 17 (1st Cir. 1990).
`
`- 7 -
`
`
`
`under the circumstances, to act differently from the way they
`otherwise would have acted (i.e., to entice a reasonable consumer
`to purchase the product)." Aspinall, 813 N.E.2d at 487-88 (citing
`Matter of Cliffdale Assocs., Inc., 103 F.T.C. 110, 165 (1984)).
`The complaint alleges that the "100% Natural"
`representation on the Wesson Oil label enticed Lee to buy the
`product because it indicated to her that the oil was GMO-free.
`"So, the question under Massachusetts law is whether the label had
`the capacity to mislead consumers, acting reasonably under the
`circumstances, to believe that [Wesson Oil] contained [no GMOs]."
`Dumont v. Reily Foods Co., 934 F.3d 35, 40 (1st Cir. 2019).
`Pursuant to an agreement between the agencies, the FTC
`defers to the FDA's determinations as to whether food product
`labeling is deceptive. See Bristol-Myers Co. v. FTC, 738 F.2d
`554, 559 (2d Cir. 1984) (citing 36 Fed. Reg. 18,539 (Sept. 16,
`1971)). Accordingly, the FDA's guidance will inform our analysis
`as to whether these allegations survive dismissal. See Dumont,
`934 F.3d at 41 ("[W]e see no unfair cost in recognizing a state-
`law claim that . . . can only be lodged against manufacturers that
`fail to adhere to the rules and safe harbors that have been created
`by the FDA and that help form consumers' expectations in reading
`labels.")
`
`At this stage, our analysis begins and ends with the
`allegations in the complaint. Lee claims that Wesson Oil's label
`
`- 8 -
`
`
`
`could have misled a reasonable consumer into buying the product
`under the (false) impression that it contained no GMOs. The
`complaint asserts, for instance, that consumers consider whether
`products are "natural" when they make their purchasing decisions,
`and that they are willing to pay more for natural items. Lee
`further alleges that surveys show that many scientists and
`consumers do not consider GMO-containing products to be natural.
`She submits that Conagra indicated that Wesson Oil was "100%
`Natural" on its label even though it contained GMOs, that Lee
`herself understood "100% Natural" to mean that Wesson Oil was
`GMO-free, that she purchased it from specific grocery stores in
`Massachusetts "five or six times per year" for years, and that she
`bought a different product after she learned that Wesson Oil
`contained GMOs. The complaint thus plausibly alleges that Wesson
`Oil's label could have deceived a reasonable consumer.
`Federal courts have permitted very similar complaints to
`go forward under other states' unfair or deceptive trade practices
`statutes. See, e.g., Garcia v. Kashi Co., 43 F. Supp. 3d 1359,
`1384-86 (S.D. Fla. 2014) (collecting cases); Ault v. J.M. Smucker
`Co., No. 13 CIV. 3409 PAC, 2014 WL 1998235, at *6 (S.D.N.Y. May
`15, 2014); In re Frito-Lay N. Am., Inc. All Nat. Litig., No. 12-
`MD-2413 RRM RLM, 2013 WL 4647512, at *15-16 (E.D.N.Y. Aug. 29,
`2013). Conagra argues that Lee demands a disclosure as to whether
`Wesson Oil contains GMOs, and that the complaints in the above-
`
`- 9 -
`
`
`
`cited cases did not require any such disclosure. Conagra contends
`that a GMO disclosure obligation would contradict the FDA's views
`that: (1) GMO products may be advertised as natural; and (2) the
`unannounced presence of GMOs in a product never causes the
`product's label to mislead a reasonable consumer.
`Conagra mischaracterizes Lee's complaint and the FDA's
`views. This complaint, precisely like those in the cases cited
`above, seeks damages resulting from Conagra's alleged
`misrepresentation. Lee does not request a specific, court-ordered
`label; in addition to damages, she seeks a limited injunction that
`would bar Wesson Oil's allegedly "false and deceptive marketing,
`branding, and labeling." If a court were to issue such an
`injunction, Conagra would not be required to disclose
`affirmatively whether Wesson Oil contains GMOs. Subject to the
`injunction's particulars, Conagra could almost certainly comply by
`excising the label's allegedly misleading claim that Wesson Oil is
`"100% Natural." See Garcia, 43 F. Supp. 3d at 1374 (explaining
`that the complaint did not seek an affirmative disclosure but
`instead "allege[d] that the 'all natural' representation . . . on
`the packaging would, and does, mislead reasonable consumers").
`Moreover, granting Lee's requested relief would not
`contradict the FDA's guidance. The FDA has not said that GMOs are
`natural and may be advertised as such. Conagra does not cite any
`binding FDA guidance defining "natural," nor could it -- that
`
`- 10 -
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`
`
`guidance does not exist. The FDA has merely noted its policy that
`a product may not be labeled as "natural" if it contains anything
`"artificial or synthetic (including all color additives regardless
`of source)." See Food Labeling: Nutrient Content Claims, General
`Principles, Petitions, Definitions of Terms; Definitions of
`Nutrient Content Claims for the Fat, Fatty Acid, and Cholesterol
`Content of Food, 58 Fed. Reg. 2,302, 2,407 (Jan. 6, 1993); see
`also Food Labeling: Nutrient Content Claims, General Principles,
`Petitions, Definition of Terms, 56 Fed. Reg. 60,421, 60,466 (Nov.
`27, 1991) (noting that the "FDA has not attempted to restrict the
`use of the term 'natural'" and that its informal policy has been
`to interpret natural "to mean that nothing artificial or synthetic
`. . . is included in, or has been added to, the product that would
`not normally be expected to be there").
`Conagra confuses the FDA's informal policy "not to
`restrict the use of the term 'natural'" with a rule defining it.
`See, e.g., 58 Fed. Reg. 2,407. Where, as here, an agency has
`issued no binding rule defining a term, the agency's pronouncements
`do not dictate whether a representation has the capacity to deceive
`a reasonable shopper under Chapter 93A. See Abruzzi Foods, Inc.
`v. Pasta & Cheese, Inc., 986 F.2d 605, 606 (1st Cir. 1993) (noting
`that, although the FDA issued a relevant rule, it declined to
`define "fresh" in the applicable context, so the plaintiff could
`not "appeal to the FDA rules for support"); see also Holk v.
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`- 11 -
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`
`
`Snapple Beverage Corp., 575 F.3d 329, 340-41 (3d Cir. 2009)
`(finding that the above-referenced FDA guidance does not amount to
`a formal definition of the term "natural").
`Critically, the FDA's far more recent request for
`comment as to whether GMOs are natural implicitly acknowledges
`that the agency has not yet ruled that they are. See Use of the
`Term "Natural" in the Labeling of Human Food Products; Request for
`Information and Comments, 80 Fed. Reg. 69,905 (Nov. 12, 2015).3
`In other words, the FDA has not yet forged the regulatory "safe
`harbor" that Conagra imagines it inhabits here. See Dumont, 934
`F.3d at 41. Because the FDA's statements to date concerning the
`use of the word "natural" are both nonbinding and nonexclusive,
`they would not foreclose a jury from finding that the use of "100%
`Natural" on Wesson Oil labels could deceive consumers into
`believing that the product was GMO-free.
`As for Conagra's assertion that the FDA has blessed the
`wholesale nondisclosure of GMO ingredients in food products, the
`agency has not gone so far in this area. Conagra relies on the
`FDA's nonbinding statements, and it misreads those statements.
`See Abruzzi Foods, 986 F.2d at 606. We note that the FDA has
`
`
`3 Although the comment period closed nearly four years ago,
`the FDA still has not issued a binding definition. See Use of the
`Term "Natural" in the Labeling of Human Food Products,
`Regulations.Gov: https://www.regulations.gov/docket?D=FDA-2014-N-
`1207 (revealing no new docket activity since the comment period
`closing) (last accessed May 5, 2020).
`
`- 12 -
`
`
`
`observed that food labelers have no general freestanding duty to
`disclose on a product's label whether it contains GMOs. See
`Statement of Policy: Foods Derived from New Plant Varieties, 57
`Fed. Reg. 22,984, 22,991 (May 29, 1992) (noting the FDA's position
`that the use of a GMO in a food product "would not usually be
`required to be disclosed in labeling for the food" (emphasis
`added)).
`Conagra nonetheless asserts a much stronger proposition:
`that labelers never need to disclose whether their products contain
`GMOs, even when those labels might otherwise violate generally
`applicable consumer protection laws. That is a step too far. In
`support of its interpretation, Conagra relies only on draft FDA
`guidance stating that "the use, or absence of use, of
`bioengineering in the production of a food is not a fact that is
`material either with respect to consequences resulting from the
`use of the food or due to representations on the labeling." Draft
`Guidance for Industry: Voluntary Labeling Indicating Whether Foods
`Have or Have Not Been Developed Using Bioengineering;
`Availability, 66 Fed. Reg. 4,839, 4,840 (Jan. 18, 2001). Even if
`that guidance generally blesses silence regarding GMO ingredients,
`it falls far short of blessing an affirmative misrepresentation
`concerning the presence of such ingredidents.
`Lee has alleged that Conagra's representation that the
`product was "100% Natural" suggested to her that Wesson Oil was
`
`- 13 -
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`
`GMO-free, and that she was thereby deceived. In its reference to
`the draft guidance mentioned above, Conagra skips relevant
`context; the FDA also suggested that labels indicating GMOs'
`absence might be misleading:
`[T]he term "[GMO] free" may be difficult to
`use without being false or misleading. If it
`implies "zero," it may be very difficult to
`substantiate. The adventitious presence of
`bioengineered material may make a "zero" claim
`inaccurate. Further, these terms would be
`misleading if they imply that the food is
`superior
`because
`the
`food
`is
`not
`bioengineered.
`
`Id. Lee contends that Conagra misled customers in an analogous
`way, with a similar -- albeit somewhat vaguer -- representation,
`and her complaint does not contradict any binding FDA rule blessing
`Conagra's label.
`We close this section by noting that Conagra's reliance
`upon the National Bioengineered Food Disclosure Standard ("NBFDS")
`misses the mark. In 2016, Congress enacted the NBFDS, which
`charges the U.S. Department of Agriculture ("USDA") with crafting
`a method for disclosing "bioengineered" ingredients in food
`products. See 7 U.S.C. § 1639b(a). After this case was argued,
`the USDA published its Final Rule on the National Bioengineered
`Food Disclosure Standard ("Final Rule"), 83 Fed. Reg. 65,814 (Dec.
`21, 2018). Conagra argues that the Final Rule supports dismissal
`because it provides that products like Wesson Oil may not need to
`disclose the fact that they contain GMOs. Indeed, the Final Rule
`
`- 14 -
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`
`
`establishes that, where "[a refined] food does not contain
`detectable modified genetic material," bioengineered disclosure is
`not required. Id. at 65,816. And, "some oil refining processes
`may effectively eliminate all DNA" in the product, so "degummed
`refined vegetable oils and various other refined ingredients are
`unlikely to require [bioengineered] food disclosure . . . ." Id.
`at 65,834.
`The Final Rule is nevertheless no help to Conagra at
`this stage. Even if we assume without deciding that the USDA
`sought to free Conagra of any obligation to disclose the presence
`of GMOs in Wesson Oil, it says nothing of representations
`suggesting GMOs' absence. See id. at 65,859 ("With respect to
`absence claims, NFBDS covers mandatory and voluntary bioengineered
`. . . claims and 7 U.S.C. [§] 1639b does not provide authority for
`[USDA] to establish an absence claims regime as part of the NFBDS.
`[USDA] notes that FDA . . . retain[s] authority over absence
`claims."). So, we return -- and not for the last time -- to this
`well-trampled ground: Lee's complaint does not demand any
`affirmative GMO labeling disclosure. The deceptive practice that
`she alleges is the labeling of Wesson Oil as "100% Natural," which
`she claims led her to believe that the oil was GMO-free.
`We decline to wade into the debate over the best
`definition of "natural." At this stage, we need only decide
`whether Lee has plausibly alleged that a reasonable consumer might
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`
`think that "100% Natural" means that a product contains no GMOs,
`and then base her purchasing decision on that belief. See Dumont,
`934 F.3d at 40. Lee has met that low threshold, so her claim may
`proceed.
`
`IV.
`We next dispose of Conagra's three alternative arguments
`in favor of dismissal.
`First, Conagra insists that Wesson Oil's label cannot
`give rise to Chapter 93A liability because the FDA currently
`permits nondisclosure of GMOs on labels. See Mass. Gen. Laws ch.
`93A, § 3 (exempting federally-blessed trade practices from Chapter
`93A liability). That is not the issue before us. As we have
`already observed, the FDA has not approved the affirmative labeling
`of products containing GMOs as "100% Natural," so this alternative
`argument does not support dismissal.
`Second, Conagra contends that federal law preempts Lee's
`claims. We have noted that "a Massachusetts law that imposed a
`labeling requirement beyond that imposed by federal law would be
`expressly preempted." Dumont, 934 F.3d at 41 (emphasis added).
`Conagra posits that two statutes -- the Nutrition Labeling and
`Education Act ("NLEA") and the NBFDS -- preempt the relief that
`Lee seeks.
`The NLEA is an express preemption statute that bars state
`labeling requirements that are "not identical" to certain federal
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`- 16 -
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`labeling requirements. See 21 U.S.C. § 343-1(a). Neither in its
`brief nor when pressed at oral argument has Conagra pointed to any
`of those requirements as being implicated by Lee's claim. Any
`such argument is therefore waived. See United States v. Zannino,
`895 F.2d 1, 17 (1st Cir. 1990).
`The NBFDS forbids states from directly or indirectly
`establishing "any requirement relating to the labeling of whether
`a food . . . is genetically engineered . . . or was developed or
`produced using genetic engineering." 7 U.S.C. § 1639i(b).4
`According to Conagra, Lee's claim under Chapter 93A establishes an
`indirect GMO disclosure obligation and is therefore explicitly
`preempted by this statute.
`claim.
`Lee's
`mischaracterizes
`Conagra
`again
`Specifically, it argues that she "would require that Conagra
`disclose on the label that Wesson Oil was made from genetically
`modified or bioengineered plants to avoid being misleading." Not
`so. Lee contends that Conagra misled customers as to the contents
`of its vegetable oil. As discussed in Part III, the NBFDS does
`not encompass absence claims. See 83 Fed. Reg. at 65,859.
`
`
`4 We observe that Congress's later passage of the NBFDS may
`evidence its belief that the NLEA's preemption provisions did not
`govern bioengineered and genetically modified food products. See
`FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 143-44
`(2000).
`
`- 17 -
`
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`
`It is true that Lee points to no FDA regulation or
`guidance stating that a manufacturer may not describe as "100%
`Natural" a product that contains GMOs. But if "100% Natural" is
`reasonably read in light of the FDA's existing pronouncements to
`mean, among other things, "no GMOs," then the absence of an FDA
`pronouncement following Conagra's use of the term "100% Natural"
`should cut against Conagra, not immunize it. To conclude otherwise
`would be to say that food manufacturers can lie with impunity as
`long as the FDA has yet to bar the particular lie they wish to
`tell. The FDA likely does not have, for example, a rule
`specifically prohibiting labeling frog eggs "caviar."
`Of course, that leaves open the question as to whether
`"100% Natural" is reasonably read to mean "no GMOs." But as we
`have already explained, the FDA has not offered a comprehensive
`definition of the term, nor has it said anything that would render
`inconsistent a finding that the term is so reasonably read. Cf.
`United States v. Piper, 35 F.3d 611, 617 (1st Cir. 1994) (holding
`that "there is no inconsistency" where an application note "neither
`excludes any [item] expressly enumerated in the [regulation], nor
`calls for the inclusion of any [item] that the [regulation]
`expressly excludes").
`Third, Conagra asserts that Lee failed to allege a
`cognizable injury under Chapter 93A. To survive a motion to
`dismiss, a Chapter 93A complaint must allege that the "plaintiff
`
`- 18 -
`
`
`
`suffered an injury . . . by showing either an economic or a
`noneconomic injury." Bellermann v. Fitchburg Gas & Elec. Light
`Co., 54 N.E.3d 1106, 1110 (Mass. 2016). Where a plaintiff alleges
`deceptive conduct, she must allege more than "a 'per se'
`injury -- that is, a claim resting only on a deceptive practice,
`regulatory noncompliance, or the 'impairment of an abstract right
`without economic loss.'" Shaulis, 865 F.3d at 10 (quoting Rule v.
`Fort Dodge Animal Health, Inc., 607 F.3d 250, 253 (1st Cir. 2010)).
`To state a claim under Chapter 93A in a case such as this, a
`complaint must allege that "a defendant's unfair or deceptive
`conduct cause[d] customers to receive a product or service worth
`less than the one for which the customers paid." Bellermann v.
`Fitchburg Gas & Elec. Light Co., 18 N.E.3d 1050, 1060 n.10 (Mass.
`2014).
`
`Lee's complaint clearly alleges a Chapter 93A injury for
`pleading purposes. She claims that GMO-free vegetable oil is sold
`at a premium price as compared to oils containing GMOs. She cites
`several studies demonstrating that consumers are willing to pay
`more for food products containing no GMOs, and she alleges that
`Conagra's deceptive advertisement caused these consumers to pay
`that higher price for a product that did contain GMOs. This is a
`classic benefit-of-the-bargain injury, for which the measure of
`damages is "the monetary difference between the actual value of
`the product at the time of purchase and what its value would have
`
`- 19 -
`
`
`
`been if the representations had been true." Aspinall, 813 N.E.2d
`at 490. No more need be alleged at this stage of litigation.
`V.
`For the foregoing reasons, we reverse the district
`court's dismissal of the complaint and remand for further
`proceedings consistent with this opinion.
`
`- 20 -
`
`
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