UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

S.J. REEVES and H. O’MALLEY, individually and on behalf of all others similarly situated,

Plaintiffs,

v. Case No. 1:22-cv-3533-RCL

7-ELEVEN, INC.,

Defendant.

MEMORANDUM OPINION

Plaintiffs S.J. Reeves and H. O’Malley bring this putative class action on behalf of

themselves and all United States residents who purchased menthol cigarettes from Defendant

7-Eleven for the period covering the four years preceding the filing of this action until present.

Plaintiffs allege that 7-Eleven misled consumers into believing that menthol cigarettes pose the

same health risks as nonmenthol cigarettes by shelving the products next to one another in its

stores. Plaintiffs seek damages and injunctive relief under D.C. consumer protection law and D.C.

contract law.

Before the Court is Defendant’s 12(b)(6) Motion to Dismiss for failure to state a claim. See

Mot. to Dismiss, ECF No. 34 (“MTD”). Because the Court agrees that Defendant has not made a

“representation” under D.C. consumer protection law, and because Plaintiffs have not presented

any plausible contract claims, Defendant’s motion will be GRANTED by separate order and this

case will be DISMISSED.

1 I. BACKGROUND

a. Key Facts

The Court draws the following facts from the well-pleaded allegations in Plaintiffs’

Complaint and attached exhibits.

Plaintiffs S.J. Reeves and H. O’Malley purchased menthol-flavored tobacco products

(“Products”), including but not limited to Newport and Kool menthol cigarettes, on multiple

occasions from various 7-Eleven locations in Colorado, Washington, D.C., New York, Maryland,

and Virginia. Compl. ¶¶ 56–57. In purchasing the Products, Plaintiffs believed they were

purchasing “ordinary” cigarettes with the same health risks as nonmenthol cigarettes.1 Id. ¶ 59.

Plaintiffs claim that their mistaken belief arose from 7-Eleven’s “advertising and marketing,”2 as

well as its placement of the Products “next to normal cigarettes.” See id. ¶¶ 59–60. Plaintiffs

attach several photos in Exhibit 1 to the Complaint: one photo of a 7-Eleven advertisement offering

$1.79 off the purchase of two packs of Marlboro cigarettes for customers using the 7-Eleven app,

and two photos of 7-Eleven’s selection of tobacco products stocked on shelves behind the counter.

Ex. 1 to Compl. In the displays behind the counter, Products are shelved next to a variety of other

tobacco products, including but not limited to nonmenthol cigarettes. Id.

Plaintiffs also offer a host of information suggesting that the Products are more addictive

and can be harder to quit than nonmenthol cigarettes because they “enhance the effects of

nicotine.” See Compl. ¶¶ 3–7, 22–56. For the purpose of resolving this motion to dismiss, the

1 Plaintiffs refer several times throughout the complaint to “ordinary” and “normal” cigarettes. Though they do not point to any particular type of cigarette when making these statements, the Court assumes that Plaintiffs are referring to nonmenthol tobacco cigarettes, such as Marlboro cigarettes. 2 Beyond a single photo of a promotion for Marlboro cigarettes attached to the Complaint, Plaintiffs do not allege any other specific advertising or marketing of menthol or nonmenthol cigarettes on the part of 7-Eleven.

2 Court assumes without deciding that Products are in fact more dangerous than nonmenthol

cigarettes and pose greater health risks to consumers.

b. Procedural History

Plaintiffs filed a four-count Complaint on November 19, 2022. See Compl. Count I alleges

a violation of the D.C. Consumer Protection Procedures Act (“CPPA”), D.C. Code. § 28-3901, et

seq, on the theory that 7-Eleven misrepresented the health risks associated with menthol cigarettes

by placing them next to “ordinary cigarettes” on its shelves. Id. ¶¶ 83–102. Count II alleges

negligent misrepresentation of the risk of smoking menthol cigarettes through 7-Eleven’s

advertising, but Plaintiffs have since abandoned this claim. Id. ¶¶ 103–11; Resp. to MTD at 3 n.1,

ECF No. 38 (“Opp’n”). Count III alleges a breach of the implied warranty of merchantability on

the ground that menthol cigarettes are not suitable for ordinary use because they are more

dangerous than nonmenthol cigarettes. Compl. ¶¶ 112–21. Count IV alleges a breach of the

implied warranty of fitness for a particular purpose on the ground that Plaintiffs sought to purchase

cigarettes with the same risk profile as nonmenthol cigarettes and relied on 7-Eleven’s judgment

to select suitable goods for that purpose. Id. ¶¶ 122–31.

On February 7, 2023, this Court granted a joint motion to stay proceedings while the FDA

considered a proposed rule banning menthol cigarettes, which Plaintiffs contended bore on their

claims in this case. See Order Granting Mot. Stay, ECF No. 10. The FDA initially expected to

complete its rulemaking by August 2023, but that deadline came and went without a rule or a new

timeline for a decision. As a result, this Court granted Plaintiffs’ motion to lift the stay on July 29,

2024. See Order Granting Mot. Lift Stay, ECF No. 22. Two months later, Defendant moved to

dismiss under Rule 12(b)(6), asserting that 7-Eleven had not represented “anything about the

relative hazards of menthol and non-menthol cigarettes—expressly or impliedly—simply by

3 stocking [the products] next to one another.” MTD at 1. Plaintiffs opposed on November 11,

2024, see Opp’n, and 7-Eleven replied on December 2, 2024, see Reply, ECF No. 41. The motion

is now ripe.

II. LEGAL STANDARD

A complaint is subject to dismissal if the defendant, by motion, demonstrates that a

plaintiff’s pleading “fail[s] to state a claim upon which relief can be granted. Fed. R. Civ. P.

12(b)(6). “To survive a motion to dismiss” under Rule 12(b)(6), “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)). A claim is plausible on its face if it “pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.”

A court

evaluating a Rule 12(b)(6) “motion presumes that the complaint’s factual allegations are true and

construes them liberally in the plaintiff’s favor.” Alemu v. Dep’t of For-Hire Vehicles,

(D.D.C. 2018). However, “[a] court need not accept a plaintiff’s legal conclusions

as true, nor must a court presume the veracity of legal conclusions that are couched as factual

allegations.”

(citing Twombly,

). A court deciding a motion under Rule 12(b)(6)

may also consider “documents attached to the complaint as exhibits or incorporated by reference,

and matters about which the court may take judicial notice.” U.S. House of Reps. v. Burwell,

(D.D.C. 2015).

III. DISCUSSION

a. CPPA Claim

Plaintiffs claim that 7-Eleven has violated the CPPA by engaging in “unfair and deceptive

practices,” specifically by “represent[ing] the Products as ordinary cigarettes and fail[ing] to

disclose that the Products are in fact much more harmful and addictive than . . . other nonmenthol

4 cigarettes.” Compl. ¶ 89. After Defendant argued in its Motion to Dismiss that any request for 7-

Eleven to post additional warnings about the dangers of menthol cigarettes would likely be

preempted by federal regulation, see MTD at 8–19, Plaintiffs clarified that they “do not ask 7-

Eleven to post additional warnings or alter federal labeling.” Opp’n at 9. Rather, “they challenge

the implied message conveyed by the product placement itself, a practice that 7-Eleven chose

independently of any federal labeling requirements.”

Based on this statement, the Court

considers 7-Eleven’s product placement alone as the basis for Plaintiffs’ CPPA claim.

Under the CPPA, it is unlawful “for any person to engage in an unfair or deceptive trade

practice,” including, as relevant here, “(a) represent[ing] that goods or services have . . .

characteristics, ingredients, uses, benefits, or quantities that they do not have;” “(d) represent[ing]

that goods . . . are of a particular standard, quality, grade, style, or model, if in fact they are of

another;” “(e) misrepresent[ing] as to a material fact which has a tendency to mislead;” “(f)

fail[ing] to state a material fact if such failure tends to mislead;” “(f-1) us[ing] innuendo or

ambiguity as to a material fact, which has a tendency to mislead.”

(a), (d),

(e), (f), (f-1). “When reviewing a claim of unfair practice under the CPPA, courts are advised to

follow ‘basic common sense’ and consider ‘how the practice would be viewed and understood by

a reasonable consumer.’” Hettinger v. Bozzuto Mgmt. Co., No. 23-3687,

, at *3

(D.D.C. Apr. 26, 2024) (quoting Pearson v. Chung,

(D.C. 2008)).

At issue here is whether 7-Eleven’s product placement amounts to a “representation” under

the CPPA. Plaintiffs argue that the placement of Products next to nonmenthol cigarettes amounts

to a representation on 7-Eleven’s part that both products are equally dangerous to consumers.

Defendant counters that the juxtaposition cannot make that representation because 7-Eleven makes

5 no representation as to the risks of any of its tobacco products merely by stocking them next to

one another on the same restricted shelf behind the counter.

In their briefs, both parties rely on a 2022 decision from the D.C. Court of Appeals, Center

for Inquiry Inc. v. Walmart, Inc.,

(D.C. 2022), which considered whether the

placement by Walmart and CVS of homeopathic products next to FDA-approved over-the-counter

medications amounted to an actionable representation under the CPPA. The Court ultimately held

that it did.

at 118–20. Plaintiffs rely on Center for Inquiry for the proposition that “product

placement alone can convey an actionable, misleading message under the CPPA,” Opp’n at 14,

while Defendant argues that the product placement in that case only amounted to a representation

because it appeared alongside aisle signage suggesting “that products in those aisles conferred

‘Cold, Cough & Flu Relief,’” MTD at 21–22. This Court agrees with Defendant that the additional

signage was essential to the Court of Appeals’ opinion that the placement of homeopathic products

next to FDA-approved medication amounted to an actionable representation under the CPPA.

The Court reaches that conclusion because in Center for Inquiry, the plaintiffs specifically

alleged that Walmart and CVS “present homeopathic products alongside FDA-approved over-the-

counter products, under aisle signs indicating that the aisles contain remedies for pain, colds,

heartburn, and other conditions.”

. Because the retailers did so “without informing

customers that there is no scientific evidence that homeopathic products have any value in treating

those symptoms and diseases” plaintiffs alleged that the retailers had made a misrepresentation as

to the efficacy of the homeopathic products.

Plaintiffs alleged that the aisle signage itself led

consumers to believe that all the products in that aisle were suitable for treating the advertised

ailments. The Court of Appeals therefore concluded that the factual allegations “plausibly

support[ed] an inference that, through their product placement practices, Walmart and CVS

6 mislead consumers into believing that homeopathic products are equivalent alternatives to FDA-

approved over-the-counter drugs.”

By contrast, Plaintiffs in this case do not allege aisle signage, advertising, or any other facts

to suggest that 7-Eleven presents any of its tobacco products (menthol or nonmenthol) as suitable

for any purpose other than consumption. Similarly, plaintiffs fail to allege that 7-Eleven makes a

representation as to the level of risk associated with consuming any tobacco product that it sells.

It is therefore not plausible to claim that the average customer would conclude that 7-Eleven is

making a representation of any kind, let alone one as to the relative risks associated with

consuming menthol and nonmenthol cigarettes merely by shelving the products next to one

another. This conclusion is further supported by Plaintiffs’ failure to allege that the placement of

other tobacco products (such as cigarillos and electronic cigarettes) on the same shelves make

similar representations of relative risk when compared to “ordinary” cigarettes. Furthermore,

Plaintiffs do not allege that menthol and nonmenthol cigarettes appear in the same positions on

shelves across 7-Eleven stores such that their placement could communicate a consistent message.

For these reasons, the Court finds that Plaintiffs fail to present a plausible claim that 7-Eleven

makes a representation at all. Because the existence of a misrepresentation is an essential element

a CCPA claim, this finding proves fatal. It is therefore not necessary to determine if the

representation is plausibly misleading to customers.

To be clear, the Court does not foreclose the possibility that the mere placement of two

products next to one another (even without additional signage or other facts) might, under

appropriate circumstances, lead to a misrepresentation that is actionable under the CPPA.

Plaintiffs do not, however, allege any such circumstances in this case.

7 b. Implied Warranty Claims

Plaintiffs also allege two contract claims: (1) a violation of the implied warranty of

merchantability in violation of D.C. Code. § 28:2-314, and (2) a violation of the implied warranty

of fitness for a particular purpose in violation of

. Compl. ¶¶ 112–21, 123–

31. Neither claim holds water.

Plaintiffs allege a violation of the implied warranty of merchantability on the theory that

7-Eleven warranted that Products “are ordinary cigarettes when in fact, the Products pose a public

health risk above that seen with nonmenthol cigarettes.”

. However, Plaintiffs do not

allege any facts to suggest that 7-Eleven warranted the products as being anything other than

menthol cigarettes. Nor do Plaintiffs suggest that they did not know they were purchasing menthol

cigarettes either upon first purchase, or in any subsequent purchase. Because tobacco products are

placed on restricted shelves behind the counter in 7-Eleven stores, Plaintiffs had to ask a cashier

for specific menthol products. These facts do not suggest that Plaintiffs were confused about what

products they were purchasing.

Moreover, Plaintiffs do not allege any facts to suggest that Products were not merchantable

as menthol cigarettes. They do not claim that the Products were not fit for ordinary consumption

as menthol cigarettes, nor that the cigarettes violated any other facet of the implied warranty of

merchantability contained in § 28:2-314. Plaintiffs therefore do not state a plausible claim for

relief.

Plaintiffs allege a similar violation of the implied warranty of fitness for a particular

purpose on the theory that Plaintiffs sought to purchase cigarettes with the same risk profile as

nonmenthol cigarettes and relied on 7-Eleven’s judgment to select suitable goods for that purpose.

Id. ¶¶ 122–131. This claim is even less plausible. To begin, nowhere in the complaint or

8