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United States Court of Appeals for the Ninth Circuit
July 14, 2017, Argued and Submitted, Portland, Oregon; August 1, 2017, Filed
1. The district court properly dismissed Dr. Lee Walters' (Walters) breach of contract claim. We have found no authority under Oregon law holding that the mere purchase of a consumer good, without [*669] more, suffices to establish a valid and enforceable contract. To accept Walters' theory of contract formation, we would have to conclude that the display of a price term and quantity information on or immediately surrounding a product's packaging constitutes [**2] an offer to sell. But the traditional rule is that ] advertisements of goods by sign or display "are not ordinarily intended or understood as offers to sell." Restatement (Second) of Contracts § 26 cmt. b (1981).
What little precedent we have found from Oregon's courts suggests that they, too, adhere to the rule that ] an advertisement is not ordinarily considered an offer to sell, absent unusually definite and explicit language. See Sherry v. Bd. of Accountancy, 212 Ore. App. 350, 157 P.3d 1226, 1232 (Or. Ct. App. 2007). No such language is present here.
Because we conclude that no contract was formed, we do not reach Walters' unconscionability argument. That obviates the need to address the parties' dispute over whether Vitamin Shoppe Industries' (VSI) labeling practices comply with the Food and Drug Administration's regulations (and if so, whether these regulations preempt Walters' state law claims).
2. The district court properly dismissed Walters' breach of warranty claim because Walters cannot state such a claim under state or federal law. ] Oregon warranty protections specifically exclude "[c]onsumable" goods, defined as "any product which is intended for consumption by individuals." Or. Rev. Stat. § 72.8010(7). That definition encompasses the dietary supplements at issue in this case.
Nor can Walters plead breach of warranty ] under the federal Magnuson-Moss Warranty Act (MMWA), [**3] which provides a cause of action for breach of written or implied warranties. 15 U.S.C. § 2310(d). Walters cannot allege a breach of implied warranty because the MMWA incorporates state law in its definition of implied warranties. 15 U.S.C. § 2301(7); see Birdsong v. Apple, Inc., 590 F.3d 955, 958 n.2 (9th Cir. 2009). Since there are no implied warranty protections for consumables under Oregon law, there can be no implied warranty protections under federal law.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
701 Fed. Appx. 667 *; 2017 U.S. App. LEXIS 14028 **; 2017 WL 3264035
LEE WALTERS, MD, an Oregon resident, Plaintiff - Appellant, v. VITAMIN SHOPPE INDUSTRIES, INC., a Delaware corporation, Defendant - Appellee.
Notice: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.
Subsequent History: Magistrate's recommendation at Walters v. Vitamin Shoppe Indus., 2018 U.S. Dist. LEXIS 89081 (D. Or., May 8, 2018)
Prior History: [**1] Appeal from the United States District Court for the District of Oregon. D.C. No. 3:14-cv-01173-PK. Anna J. Brown, District Judge, Presiding.
Walters v. Vitamin Shoppe Indus., 2015 U.S. Dist. LEXIS 82408 (D. Or., June 25, 2015)
Disposition: AFFIRMED in part, REVERSED in part, and REMANDED.
label, unjust enrichment, implied warranty, district court, breach of warranty, offer to sell, small print, representations, protections, Consumers, alleged misrepresentation, ascertainable loss, properly dismiss, written warranty, federal law, advertisement, regulations, safeguard, quantity, alleges, display, pleaded, promise, front
Business & Corporate Compliance, Contracts Law, Contract Formation, Offers, Torts, Products Liability, Theories of Liability, Breach of Warranty, Antitrust & Trade Law, Consumer Protection, Magnuson-Moss Warranty Act, Scope, Fraud & Misrepresentation, Actual Fraud, Elements, Deceptive & Unfair Trade Practices, State Regulation