Tomasella v. The Hershey Co.

United States Court of Appeals
For the First Circuit

No. 19-1130

DANELL TOMASELLA, on behalf of herself and
all others similarly situated,
Plaintiff, Appellant,

v.

NESTLÉ USA, INC., a Delaware corporation,
Defendant, Appellee.
____________________

No. 19-1131

DANELL TOMASELLA, on behalf of herself and
all others similarly situated,
Plaintiff, Appellant,

v.

MARS, INC., a Delaware corporation; and MARS CHOCOLATE
NORTH AMERICA LLC, a Delaware company,
Defendants, Appellees.
____________________

No. 19-1132

DANELL TOMASELLA, on behalf of herself and
all others similarly situated,
Plaintiff, Appellant,

v.

THE HERSHEY COMPANY, a Delaware corporation;
HERSHEY CHOCOLATE & CONFECTIONERY CORPORATION,
a Delaware corporation,
Defendants, Appellees.
____________________
 APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Allison D. Burroughs, U.S. District Judge]

Before

Torruella, Lynch, and Kayatta,
Circuit Judges.

Elaine T. Byszewski, with whom Steve W. Berman, and Hagens
Berman Sobol Shapiro LLP were on brief, for appellant.
Bryan A. Merryman, with whom Michael Kendall, Lauren M.
Papenhausen, Karen Eisenstadt, and White & Case LLP were on brief,
for appellee Nestlé USA, Inc.
David M. Horniak, with whom Alison M. Newman, Stephen D.
Raber, and Williams & Connolly LLP were on brief, for appellees
Mars, Inc. and Mars Chocolate North America LLC.
Jonah M. Knobler, with whom Steven A. Zalesin, and Patterson
Belknap Webb & Tyler LLP were on brief, for appellees The Hershey
Company and Hershey Chocolate & Confectionery Corporation.

June 16, 2020

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 TORRUELLA, Circuit Judge. Danell Tomasella ("Tomasella")

appeals the district court's dismissal of her claims in three

putative class action lawsuits against Nestlé USA, Inc.

("Nestlé"), Mars, Inc. ("Mars"), and The Hershey Company

("Hershey") (collectively "Defendants"). Tomasella alleged that

Defendants' failure to disclose on the packaging of their chocolate

products that the worst forms of child labor exist in their cocoa

supply chains violates the Massachusetts Consumer Protection Act,

Mass. Gen. Laws ch. 93A ("Chapter 93A"). She also alleged that

Defendants had been unjustly enriched by this packaging omission.

The exploitation of children in the supply chain from

which U.S. confectionary corporations continue to source the cocoa

beans that they turn into chocolate is a humanitarian tragedy.

This case thus serves as a haunting reminder that eradicating the

evil of slavery in all its forms is a job far from finished.

Before us, however, is the very narrow question of whether

Defendants' failure to include on the packing of their chocolate

products information regarding upstream labor abuses in their

cocoa bean supply chains constitutes an unfair or deceptive

business practice within the meaning of Chapter 93A. Because we

agree with the district court that Tomasella has not plausibly

stated a claim for relief under Chapter 93A based on the alleged

packaging omissions, and that Tomasella's unjust enrichment claim

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is foreclosed by the availability of a remedy at law, we affirm

the dismissal of her complaints against Defendants.

I. Background

A. Facts of the Case

Because this is an appeal from the granting of a motion

to dismiss, "we rehearse the facts as they appear in the

plaintiff['s] complaints (including documents incorporated by

reference therein)."1 Hochendoner v. Genzyme Corp., 823 F.3d 724,

728 (1st Cir. 2016).

The West African nation of Côte d'Ivoire (Ivory Coast)

is the world's largest producer of cocoa beans, the essential

ingredient in chocolate. The United States imports 47% of its

supply of cocoa beans from Côte d'Ivoire. According to the U.S.

Department of Labor's ("DOL") Bureau of International Labor

Affairs, the Ivorian cocoa industry "employ[s]" over 1.2 million

child laborers, 95% of whom are engaged in hazardous cocoa

production work, such as burning and clearing fields, using

machetes and sharp tools, spraying pesticides, and carrying heavy

loads. As many as 4,000 of these children "are working under

conditions of forced labor on Ivorian cocoa farms," having been

1 We draw the factual background largely from the complaint against
Nestlé -- a template for the nearly identical complaints that
Tomasella filed against Mars and Hershey.

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kidnapped or trafficked into debt bondage marked by harsh working

conditions. In addition, child laborers on cocoa farms are often

forced to work long hours even when sick, denied food, and punished

with physical abuse. A DOL-funded 2015 report prepared by the

Payson Center for International Development at Tulane University

found that over half of child laborers on Ivorian cocoa farms have

suffered work-related injuries. These conditions, according to

Tomasella, amount to "the Worst Forms of Child Labor" and are

"prohibit[ed]" under international law.2

Defendants are three of the largest and most profitable

confectionary corporations in the United States. Their chocolate

products are made with cocoa beans and paste that they source

(either directly or through intermediaries) predominantly from

West African countries such as Côte d'Ivoire and Ghana. 3

2 International Labor Organization ("ILO") Convention No. 182
defines the "Worst Forms of Child Labor" to include slavery,
trafficking of children, forced or compulsory labor, prostitution
and pornography, drug trafficking, or work, which by its nature,
is likely to harm children's health and safety. ILO: Convention
Concerning the Prohibition and Immediate Elimination of the Worst
Forms of Child Labor, 38 I.L.M. 1207, 1208 (1999).
3 Tomasella specifically identifies the following assortment of
each company's chocolate products in her complaints: (1) Nestlé
Crunch, 100 Grand, Baby Ruth, Butterfinger, Nestlé Toll House,
Nestlé Hot Cocoa Mix, Nestlé Milk Chocolate, and Nestlé seasonal
confections; (2) M&M's, Mars Bars, Snickers, Twix, 3Musketeers,
Galaxy, and Milky Way; (3) Hershey's Bars, Hershey's Kisses,
Reese's, KitKat, Rolo, Heath, Skor, Special Dark, Krackel, Milk
Duds, Whoppers, Mr. Goodbar, Almond Joy, Mounds, 5th Avenue,
Symphony, Take5, Whatchamacallit, York Peppermint Patty, seasonal

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Defendants' Corporate Business Principles and Supplier Codes of

Conduct prohibit child and slave labor. Additionally, they each

have a stated policy that condemns the use of the worst forms of

child labor. At the same time, Defendants publicly acknowledge

the existence of the worst forms of child labor in their West

African cocoa supply chains. For example, Nestlé acknowledges

that children are engaged in hazardous work and forced labor on

farms in Côte d'Ivoire in areas where the company sources cocoa.

Mars recognizes that child labor and trafficking exist in cocoa

bean supply chains originating in West Africa, and that it has

advocated for the government of Côte d'Ivoire to address the

problem. Hershey concedes that there are potential labor rights

abuses in its cocoa bean supply chain and expresses its commitment

to ending forced labor.

In 2001, Defendants (all members of the Chocolate

Manufacturers Association) signed the Protocol for the Growing and

Processing of Cocoa Beans and Their Derivative Products in a Manner

that Complies with ILO Convention 182 Concerning the Prohibition

and Immediate Action for the Elimination of the Worst Forms of

Child Labor, Sept. 19, 2001 [hereinafter Harkin-Engel Protocol],4

confections, and Hershey's baking bars, syrups, and spreads.
4 The Harkin-Engel Protocol is named after U.S. Senator Tom Harkin
and U.S. Representative Eliot Engel, the legislators who brokered

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whereby they committed to being able to publicly certify by July

2005 "that [their] cocoa beans and their derivative products have

been grown and/or processed without any of the worst forms of child

labor." Since 2005, Defendants have issued several joint

statements affirming their commitment to eliminating forced child

labor in the cocoa supply chain, although they have yet to fully

implement the comprehensive cocoa certification process imagined

by the Harkin–Engel Protocol.

As part of their commitment, Defendants have launched

corporate remedial initiatives. Nestlé launched the Nestlé Cocoa

Plan in 2009 to "eliminate the use of child labour" and "stamp out

forced labour practices" in the Ivorian cocoa industry. Mars has

the Sustainable Cocoa Initiative, which aims to improve the

livelihoods of farmers. Hershey designed the Shared Goodness

approach, "to help guide [its] support of the United Nations

Sustainable Development Goals" towards the ultimate goal of

creating a "Better Life and a Bright Future for [its]

stakeholders." Tomasella alleges that the total number of

children involved in hazardous work in cocoa production has

nevertheless increased between 2008 and 2014.

Defendants contend that they have consistently and

the agreement.

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publicly acknowledged the child labor problem in their cocoa supply

chains, including on their websites, where they regularly report

on their remedial efforts; however, they do not disclose the

existence of "child and/or slave labor in the [cocoa] supply chain"

on the packaging of the chocolate products identified in

Tomasella's complaints at the point of sale. Nestlé does label

at least one of its chocolate products, Nestlé Crunch, with the

Nestlé Cocoa Plan logo and a statement (with a website link) that

reads, "[t]he Nestlé Cocoa Plan works with UTZ Certified to help

improve the lives of cocoa farmers and the quality of their

products." 5 Both Mars and Hershey label certain products as

certified by the Rainforest Alliance (another certification that

does not permit child labor), but Tomasella expressly exempts those

products from challenge in her complaints.

B. Procedural History

On February 12, 2018, Tomasella (a Massachusetts

resident) filed a two-count class action lawsuit against Nestlé in

federal court predicated on diversity jurisdiction. Then, on

February 26, 2018, she filed identical class actions against Mars

and Hershey. The putative class in all three lawsuits included

"[a]ll consumers who purchased [Defendants'] Chocolate Products in

5 UTZ is a non-profit organization that operates a fair labor and
sustainability certification system.

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Massachusetts during the four years prior to the filing of the

complaint[s]."

First, Tomasella alleged that Defendants violated

Chapter 93A because their failure to disclose the prevalence of

the worst forms of child labor in their cocoa supply chains on

their product packaging is a "material omission[]" that

constitutes "an unfair or deceptive act[] or practice[] in the

conduct of any trade or commerce" (Count One). Mass. Gen. Laws

ch. 93A, § 2(a).6 According to Tomasella, these omissions were

deceptive because they "enticed reasonable consumers to purchase

the Chocolate Products when they would not have had they known the

truth." Likewise, she alleged that the omissions were unfair to

consumers who became "unwitting support[ers] of child and slave

labor" through their purchases, and that Defendants' "undisclosed

participation" in a cocoa supply chain plagued by the worst forms

of child labor was "immoral, unethical, oppressive, unscrupulous,

unconscionable, and offends established and internationally

recognized public policies against the use of child and slave

labor," such as ILO Convention No. 182 and the United Nations'

6 Chapter 93A creates a private right of action under which "[a]ny
person . . . who has been injured . . . may bring an action
. . . for damages and such equitable relief, including an
injunction, as the court deems to be necessary and proper." Mass.
Gen. Laws ch. 93A, § 9.

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1948 Universal Declaration on Human Rights ("UDHR"). Tomasella

also alleged that Defendants' packaging omissions "impair[]

competition in the market for chocolate products, and prevent[]

[her] and Class Members from making fully informed decisions about

the kind of chocolate products to purchase and the price to pay

for such products."

In the way of injuries, Tomasella claimed that

Defendants' material omissions caused her and the putative class

members to lose money "because they would not have purchased nor

paid as much for Chocolate Products had they known the truth."

Tomasella also alleged that "the unwitting support of child and

slave labor causes substantial injury to consumers" -- presumably

in a moral sense. As for the requested relief, Tomasella sought

an injunction ordering Defendants to discontinue their deceptive

and unfair omissions (i.e., an injunction ordering them to make

certain disclosures on their chocolate wrappers) and requesting

treble damages, as well as attorneys' fees and costs.

In the second cause of action, Tomasella alleged that

Defendants had been "unjustly enriched" by "receiving payments for

Chocolate Products that would not have been possible absent the

wrongful conduct" (Count Two). Accordingly, Tomasella sought

"full restitution" of Defendants' "ill-gotten gains."

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 On April 19, 2018, Defendants simultaneously filed

motions to dismiss Tomasella's complaints in their respective

cases under Fed. R. Civ. P. 12(b)(6). They uniformly asserted

that Tomasella failed to state a Chapter 93A claim because she did

not plausibly plead that the alleged packaging omissions

constituted unfair or deceptive acts within the meaning of the

statute, see Mass. Gen. Laws ch. 93A, § 2(a); that Tomasella had

not alleged a cognizable injury per section 9 of Chapter 93A, see

Mass. Gen. Laws ch. 93A, § 9; that the disclosure Tomasella sought

would violate Defendants' First Amendment rights; and that

Tomasella could not claim unjust enrichment -- an equitable

remedy -- because Chapter 93A provided her and the putative class

members an adequate remedy at law.

On January 30, 2019, the district court granted

Defendants' motions to dismiss with prejudice. See Tomasella v.

Nestlé USA, Inc., 364 F. Supp. 3d 26, 37 (D. Mass. 2019); Tomasella

v. Mars, Inc., No. 18-cv-10359 (D. Mass. Jan. 30, 2019); Tomasella

v. The Hershey Co., No. 18-cv-10360 (D. Mass. Jan. 30, 2019).

C. The District Court's Decision7

The district court dismissed Tomasella's complaints in

three strokes. First, the court found that Tomasella "failed to

7 To lay out the district court's holding and reasoning, we refer
to the Nestlé decision, which is the only published decision of

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state a deceptive claim under Chapter 93A because it is not

plausible that [Defendants'] failure to disclose information about

the labor practices in [their] supply chain[s] at the point of

sale could have the 'capacity to mislead consumers, acting

reasonably 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).'" Id. at 35 (quoting Aspinall

v. Philip Morris Cos., 813 N.E.2d 476, 488 (Mass. 2004)). The

court noted that Tomasella's theory of liability was premised on

factual omissions (as opposed to "affirmative

misrepresentation[s]" or "misleading half-truth[s]") that were

tangential to the "central characteristics of the chocolate

products sold, such as their physical characteristics, price, or

fitness for consumption." Id. at 33.

Heeding Chapter 93A's instruction that courts be "guided

by the interpretations given by the Federal Trade Commission and

the Federal Courts to section 5(a)(1) of the Federal Trade

Commission Act (15 U.S.C. § 45(a)(1))," Mass. Gen. Laws ch. 93A,

§ 2(b), the district court looked to the Federal Trade Commission's

("FTC") decision in In re International Harvester Co., 104 F.T.C.

949, 1059 (1984) (hereinafter "International Harvester"), in the

the three, and which mirrors the other two.

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absence of any suggestion by the parties of Massachusetts case law

addressing the type of omission at issue in this case.

In International Harvester, the FTC concluded that a "pure

omission," which it defined as "a subject upon which the seller

has simply said nothing, in circumstances that do not give any

particular meaning to his silence," did not create deception

liability under the Federal Trade Commission Act ("FTC Act").

Int'l Harvester, 104 F.T.C. at 1051–55. Accordingly, the district

court construed Defendants' nondisclosure on their product

packaging of any information relating to child labor in their cocoa

bean supply chains as a "pure omission" because "[Defendants'] act

of offering chocolate for sale implies that the product is fit for

human consumption . . . but does not on its own give rise to any

misleading impression about how [Defendants] or [their] suppliers

treat their workers." Nestlé, 364 F. Supp. 3d at 35. Thus, the

district court held that "it would not be objectively reasonable

for a consumer to affirmatively form any preconception about the

use of child or slave labor in [Defendants'] supply chain[s], let

alone to make a purchase decision based on any such preconception"

because of Defendants' silence about their labor practices on the

packaging of their chocolate products. Id.

Second, the district court determined that Tomasella

likewise "[did] not state a claim for unfair conduct upon which

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relief could be granted under Chapter 93A" because she failed to

allege that (1) "[Defendants'] omissions [were] within the

penumbra of any common law, statutory or other established concept

of unfairness"; (2) "the challenged omissions [were] immoral,

unethical, oppressive or unscrupulous"; or that (3) "[Defendants]

caused substantial injury to [their] customers." Id. at 35-36

(citing President & Fellows of Harvard Coll. v. Certplex, Ltd.,

No. 15-cv-11747, 2015 WL 10433612, at *2 (D. Mass. Nov. 25, 2015)).

The district court rejected Tomasella's argument that

Defendants' conduct fell within "well-established international

concepts of unfairness." Id. at 36. To that end, the court noted

that Tomasella was challenging the omission of information on

Defendants' product packaging relating to the existence of child

and slave labor in Defendants' cocoa supply chains not the use of

those abhorrent labor practices themselves. See id. Moreover,

the district court found that Tomasella had not "identified any

common law or statutory authority requiring such disclosure[s]."

Id. (citing Hodsdon v. Mars, Inc., 891 F.3d 857, 867 (9th Cir.

2018)) (holding that the packaging of products is too far removed

from the United Nations' and ILO's policies to serve as the basis

for an unfairness claim under California's Unfair Competition

Law). Finally, the district court concluded that Tomasella's

concession that Defendants had "repeatedly disclosed" in other

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media the existence of child and slave labor in their cocoa supply

chains neutralized her claim that she would not have purchased

Defendants' chocolate products had she known the truth about their

labor practices; moreover, where such information was "readily

available to consumers on [Defendants'] websites," the district

court held that omitting it from the packaging of chocolate

products was not "immoral, unethical, oppressive, unscrupulous or

substantially injurious to consumers." Id.

Having dismissed both Chapter 93A claims for failure to

state a claim for unfair or deceptive conduct upon which relief

could be granted, the district court declined to address whether

Tomasella had alleged a cognizable injury per section 9 of Chapter

93A or whether the First Amendment barred compelling the packaging

disclosures she sought. Id. at 36 n.7.

Third, the district court dismissed Tomasella's unjust

enrichment claim because, under Massachusetts law, plaintiffs with

"an adequate remedy at law cannot maintain a parallel claim for

unjust enrichment, even if that remedy is not viable." Id. at 37

(citing Shaulis v. Nordstrom, Inc., 865 F.3d 1, 16 (1st Cir. 2017))

("It is the availability of a remedy at law, not the viability of

that remedy, that prohibits a claim for unjust enrichment."). In

any event, because Tomasella failed to allege wrongful conduct

under Chapter 93A, the court noted that the allegation of unjust

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enrichment was ultimately merely "conclusory." Id. (internal

quotation marks omitted).

On January 31, 2019, Tomasella timely appealed all three

dismissals. Due to the symmetry in the complaints, the district

court decisions, and the issues on appeal, our decision addresses

the three appeals as one.

II. Discussion8

On appeal, Tomasella challenges the dismissal of her

Chapter 93A and common law unjust enrichment claims. Our review

is de novo. See Shaulis, 865 F.3d at 5-6 (citing Carter's of New

Bedford, Inc. v. Nike, Inc., 790 F.3d 289, 291 (1st Cir. 2015)).

"Setting aside any statements that are merely conclusory, we

construe all factual allegations in the light most favorable to

the non-moving party to determine if there exists a plausible claim

upon which relief may be granted." Woods v. Wells Fargo Bank,

N.A., 733 F.3d 349, 353 (1st Cir. 2013) (citing Ocasio-Hernández

v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011)). "As a federal

court sitting in diversity, we apply the substantive law of

Massachusetts, as articulated by the [Massachusetts Supreme

Judicial Court]." Shaulis, 865 F.3d at 6 (citing Sanders v.

Phoenix Ins. Co., 843 F.3d 37, 47 (1st Cir. 2016)). "Where the

8 Given the overlapping of issues and arguments, we refer to the
briefs in the Nestlé appeal.

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highest [state] court has not spoken directly on the question at

issue, we must predict, as best we can, that court's likely

answer." Nolan v. CN8, 656 F.3d 71, 76 (1st Cir. 2011) (citing

Barton v. Clancy, 632 F.3d 9, 17 (1st Cir. 2011)). Moreover, "our

obligation to make such an 'informed prophecy' is dampened by a

concomitant duty to confine our forecast 'within the narrowest

bounds sufficient to permit disposition of the actual case in

controversy.'" Id. (quoting Moores v. Greenberg, 834 F.2d 1105,

1112 (1st Cir. 1987)).

A. Chapter 93A Claims

"Chapter 93A is a broad . . . consumer protection

statute," under which "[a] plaintiff seeking relief . . . must

prove that the defendant engaged in 'unfair or deceptive acts or

practices in the conduct of any trade or commerce.'" Walsh v.

TelTech Sys., Inc., 821 F.3d 155, 160 (1st Cir. 2016) (quoting

Mass. Gen. Laws ch. 93A, § 2(a)). The statute does not define

"unfair or deceptive acts or practices" as used in section 2(a),

but it provides that courts "will be guided" by the FTC's and

federal courts' interpretations of the provisions of the FTC Act

that also proscribe unfair or deceptive acts or practices. Mass.

Gen. Laws ch. 93A, § 2(b).9

9 Section 2(b) reads:

It is the intent of the legislature that in construing

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 Massachusetts courts also "la[y] out . . . helpful

guideposts" as to the meaning of the relevant terms in

section 2(a). Hanrahran v. Specialized Loan Servicing, LLC, 54

F. Supp. 3d 149, 154 (D. Mass. 2014). "Under Chapter 93A, an act

or practice is deceptive 'if it possesses a tendency to deceive'

and 'if it could reasonably be found to have caused a person to

act differently from the way he [or she] otherwise would have

acted.'" Walsh, 821 F.3d at 160 (alteration in original) (quoting

Aspinall, 813 N.E.2d at 486-87). "[A]n act or practice is unfair

if it falls 'within at least the penumbra of some common-law,

statutory, or other established concept of unfairness'; 'is

immoral, unethical, oppressive or unscrupulous'; and 'causes

substantial injury to consumers,'" plus the "conduct must

generally be of an egregious, non-negligent nature." Id. (quoting

PMP Assocs. v. Globe Newspaper Co., 321 N.E.2d 915, 917 (Mass.

1975)).

Of additional note, "Chapter 93A liability is decided

case-by-case, and Massachusetts courts have consistently

paragraph (a) of this section in actions brought under
sections four, nine[,] and eleven, the courts will be
guided by the interpretations given by the Federal
Trade Commission and the Federal Courts to section
5(a)(1) of the Federal Trade Commission Act (15 U.S.C.
45(a)(1)), as from time to time amended.

Mass. Gen. Laws ch. 93A, § 2(b).

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emphasized the 'fact-specific nature of the inquiry.'" Arthur D.

Little, Inc. v. Dooyang Corp., 147 F.3d 47, 55 (1st Cir. 1998)

(quoting Linkage Corp. v. Trustees of Bos. Univ., 679 N.E.2d 191,

209 (Mass. 1997)). "Although whether a particular set of acts,

in their factual setting, is unfair or deceptive is a question of

fact, the boundaries of what may qualify for consideration as a

[Chapter] 93A violation is a question of law." Id. at 54

(alteration in original) (quoting Ahern v. Scholz, 85 F.3d 774,

797 (1st Cir. 1996)).

Section 2(c) of Chapter 93A also authorizes the

Massachusetts Attorney General to issue rules and regulations

interpreting section 2(a)'s provisions, so long as the

interpretations stay within the bounds set by the FTC's and federal

courts' interpretations per section 2(b).10 See Mass. Gen. Laws

ch. 93A, § 2(c). One such regulation, which is featured in this

case, is 940 Mass. Code Regs. 3.16(2) ("Section 3.16(2)").

10 Section 2(c) reads:

The attorney general may make rules and regulations
interpreting the provisions of subsection 2(a) of this
chapter. Such rules and regulations shall not be
inconsistent with the rules, regulations[,] and
decisions of the Federal Trade Commission and the
Federal Courts interpreting the provisions of
15 U.S.C. 45(a)(1) (The Federal Trade Commission
Act), as from time to time amended.

Mass. Gen. Laws ch. 93A, § 2(c).

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Section 3.16(2) explains that Chapter 93A covers a business's

"fail[ure] to disclose to a buyer or prospective buyer any fact,

the disclosure of which may have influenced the buyer or

prospective buyer not to enter into the transaction." 940 Mass.

Code Regs. 3.16(2). The regulation does not address how such

disclosures need be made.

After careful review, we agree with the district court

that Tomasella has failed to plausibly state Chapter 93A claims

against Defendants under either a deceptive or unfair acts theory.

We address each theory in turn.

1. Deceptive Acts

To plausibly state a Chapter 93A claim premised on a

deceptive act, the plaintiff must allege "(1) a deceptive act or

practice on the part of the seller; (2) an injury or loss suffered

by the consumer; and (3) a causal connection between the seller's

deceptive act or practice and the consumer's injury." Casavant

v. Norwegian Cruise Line, Ltd., 919 N.E.2d 165, 168-69 (Mass. App.

Ct. 2009) (citing Mass. Gen. Laws ch. 93A, § 9). An act or

practice is deceptive if it "has the capacity to mislead consumers,

acting reasonably 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 488.

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 The spectrum of liability for deceptive acts or

practices spans from affirmative misrepresentations, see Carlson,

2015 WL 6453147, at *4, to certain kinds of nondisclosures, such

as "advertising [that] may consist of a half truth, or even may be

true as a literal matter, but still create[s] an over–all

misleading impression through failure to disclose material

information," Aspinall, 813 N.E.2d at 487. A nondisclosure, or

an omission, "is the failure to 'disclose to another a fact that

[one] knows may justifiably induce the other to act or refrain

from acting in a business transaction . . . [if one] is under a

duty to the other to exercise reasonable care to disclose the

matter in question." Underwood v. Risman, 605 N.E.2d 832, 836

(Mass. 1993) (alteration in original) (quoting Restatement

(Second) of Torts § 551 (1977)).

Beyond its recognition in Aspinall of two specific kinds

of deceptive omissions and its occasional echoing of Section

3.16(2)'s broad disclosure language (which, as we will explain, is

less expansive than meets the eye), the Supreme Judicial Court of

Massachusetts ("SJC") has not squarely addressed whether a seller

commits a deceptive act when omitting information at the point of

sale concerning a product that is tangential to its fitness for

use. Thus, pursuant to Chapter 93A's directive, we look to the

FTC's interpretation of the FTC Act for guidance.

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 The FTC has addressed in detail whether and to what

extent omissions constitute deceptive acts. Under the FTC

framework, with which Massachusetts law substantially comports,

see Aspinall, 813 N.E.2d at 488, deceptive acts consist of three

elements: "(1) there must be a representation, practice, or

omission likely to mislead consumers; (2) the consumers must be

interpreting the message reasonably under the circumstances; and

(3) the misleading effects must be 'material,' that is likely to

affect consumers' conduct or decision with regard to a product,"

Int'l Harvester, 104 F.T.C. at 1056.

According to the FTC, omissions give rise to liability

based on deception in two limited circumstances: (1) "to tell only

half the truth, and to omit the rest" (e.g., "where a seller fails

to disclose qualifying information necessary to prevent one of his

affirmative statements from creating a misleading impression");

and (2) "to simply remain silent, if [the seller] does so under

circumstances that constitute an implied but false representation"

(e.g., where a misleading impression "arise[s] from the physical

appearance of the product, or from the circumstances of a specific

transaction, or . . . based on ordinary consumer expectations as

to the irreducible minimum performance standards of a particular

class of good").11 Id. at 1057-58. An example of telling a half-

11 We note the FTC's explanation that this second category of

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truth and omitting the rest would be advertising a product that

allegedly cures baldness but "failing to disclose that most

baldness results from male heredity and cannot be treated." Id.

at 1058 (citing Ward Labs. v. FTC, 276 F.2d 952 (2nd Cir. 1960);

Keele Hair & Scalp Specialists, 55 F.T.C. 1840 (1959), aff'd, 275

F.2d 18 (5th Cir. 1960)). An example of creating a misleading

impression through an omission would be presenting a product as

new, even though it is actually used, without correcting the

misimpression created, see id. (citing Olson Radio Corp., 60 F.T.C.

1758 (1962)), or omitting "that a simulated-wood product was

actually made of paper," id. (citing Haskelite Mfg. Corp., 33

F.T.C. 1212, 1216 (1941), aff'd, 127 F.2d 765 (7th Cir. 1942)).

Chapter 93A also requires that we look at federal case law

interpreting the FTC Act. In 2018 the Ninth Circuit described the

limits of the omission theory, holding that SeaWorld's failure to

disclose facts about the poor treatment of its orca whales was not

an unfair or deceptive act because such treatment "[did] not

concern a central feature of the entertainment experience"

inherent to the purchase of SeaWorld tickets. Hall v. SeaWorld

Entm't, Inc., 747 F. App'x 449, 453 (9th Cir. 2018); see also

omissions is deceptive because it interferes with "[t]he concept
of reasonable fitness," which is the notion that "offering a
product for sale creates an implied representation that it is fit
for the purposes for which it is sold." Int'l Harvester, 104
F.T.C. at 1058 & n.35.

-23-
F.T.C. v. Simeon Mgmt. Corp., 532 F.2d 708, 716 (9th Cir. 1976)

("[N]o single advertisement could possibly include every fact

relevant to the purchasing decision; nor is such comprehensiveness

required . . . .").

Although the SJC did not cite directly to International

Harvester in the Aspinall decision, its statement in that case

regarding nondisclosures in advertising that are "half truth[s]"

or that "create an over-all misleading impression" closely tracks

the FTC's dual classification scheme. Aspinall, 813 N.E.2d at

487. In International Harvester, the FTC considered whether a

farming equipment manufacturer committed a deceptive act by

marketing a gasoline-powered tractor without a warning about a

potentially dangerous product feature that resulted in a

phenomenon called "fuel geysering" in which hot gasoline is

forcibly ejected through a cap on the tractor's gas tank. See 104

F.T.C. at 1051-55. The FTC classified this nondisclosure as a

"pure omission," which it defined as merely staying silent about

a subject "in circumstances that do not give any particular meaning

to [the] silence." Id. at 1059. Because the statistical

probability of fuel geysering was very low, the FTC determined

that the risk of hazard did not render the tractor "unfit for

normal use," and thus the act of offering the tractor for sale

while staying silent about the risk of fuel geysering did not

-24-
constitute a deceptive act. Id. at 1063. Thus, although pure

omissions "may lead to erroneous consumer beliefs if [the] consumer

had a false, pre-existing conception which the seller failed to

correct," the FTC held that such omissions, by and large, "are not

appropriately characterized as deceptive or reached through

deception analysis." Id. at 1059-60. The reasoning underlying

the FTC's treatment of pure omissions is encapsulated in the

following policy considerations:

First, we could not declare pure omissions to be
deceptive without expanding that concept virtually
beyond limits. Individual consumers may have
erroneous preconceptions about issues as diverse as
the entire range of human error, and it would be both
impractical and very costly to require corrective
information on all such points. Second, pure
omissions do not presumptively or generally reflect a
deliberate act on the part of the seller, and so we
have no basis for concluding, without further
analysis, that an order requiring corrective
disclosure would necessarily engender positive net
benefits for consumers or be in the public interest.

If we were to ignore this last consideration, and
were to proceed under a deception theory without a
cost-benefit analysis, it would surely lead to
perverse outcomes. The number of facts that may be
material to consumers -- and on which they may have
prior misconceptions -- is literally infinite.
Consumers may wish to know about the life expectancy
of clothes, or . . . [a] canner's policy on trade
with Chile. Since the seller will have no way of
knowing in advance which disclosure is important to
any particular consumer, he will have to make
complete disclosures to all. A television ad would
be completely buried under such disclaimers, and even
a full-page newspaper ad would hardly be sufficient
for the purpose. For example, there are literally
dozens of ways in which one can be injured while

-25-
 riding a tractor, not all of them obvious before the
fact, and under a simple deception analysis these
would presumably all require affirmative disclosure.
The resulting costs and burden on advertising
communication would very possibly represent a net
harm for consumers.

Id. at 1059-60 (footnotes omitted).

On this law, we see no reason to depart from the district

court's determination that Tomasella failed to state a deceptive

acts claim against Defendants based on their packaging omissions.

As Tomasella does not pursue a theory premised on affirmative

misrepresentations, 12 the decisive issue is thus whether

Defendants' packaging omissions are deceptive acts in the sense

that they "ha[ve] the capacity to mislead consumers, acting

reasonably 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 488.

By our lights, Defendants' packaging omissions lack the

requisite capacity to mislead. The district court's classification

12Tomasella did allege in the Nestlé complaint that the company's
failure to disclose abusive labor practices was especially
egregious for Nestlé Crunch because the product includes a Nestlé
Cocoa Plan label accompanied by the following statement: "The
Nestlé Cocoa Plan works with UTZ Certified to help improve the
lives of cocoa farmers and the quality of their products." The
district court rejected the argument that this label constituted
an affirmative misrepresentation, and because Tomasella does not
challenge this ruling on appeal, she has therefore waived any
argument to that effect. See Pignons S.A. de Mecanique v. Polaroid
Corp., 701 F.2d 1, 3 (1st Cir. 1983).

-26-
of Defendants' packaging omissions as pure omissions makes good

sense. The challenged conduct does not clearly fall into either

of the nondisclosure categories that the SJC and FTC have

specifically recognized as being deceptive. By not disclosing on

the packaging of their chocolate products that there are known

labor abuses in their cocoa supply chains, Defendants stay silent

on the subject in a way that does not constitute a half-truth or

create any misleading impressions about the upstream labor

conditions in the cocoa supply chain. 13

Following International Harvester's framework, then, the

risk of hazard -- here, that the worst forms of child labor may

have been used in producing the cocoa beans used to make the

chocolate products being offered for sale -- does not render the

13 On appeal, Tomasella attempts to cobble together a misleading
impression theory by contending that Defendants' "omission[s]
relate[] to the central pleasure-providing characteristic of the
product, which is undermined by undisclosed child and slave labor,"
and that Defendants "create[] an implied but false impression in
the mind of a reasonable consumer" that their for-sale chocolate
products are in the country legally even though importing the cocoa
beans used to make those products violates the Tariff Act, 19
U.S.C. § 1307. However, because Tomasella failed to raise these
arguments below, we decline to address them for the first time on
appeal. See Goodwin v. C.N.J., Inc., 436 F.3d 44, 51 (1st Cir.
2006) ("Under the familiar raise-or-waive rule, legal theories not
asserted in the lower court cannot be broached for the first time
on appeal."). For the first time on appeal, Tomasella also
contends that International Harvester supports her position
because, there, the FTC "did not dismiss the 'pure omission' in
that case outright, but found a violation under the FTC unfairness
test, as exists here." But this last-minute argument is waived
too. See id.

-27-
products "unfit for normal use," and thus the act of offering the

chocolate for sale without mention of these labor practices is not

a deceptive act. 104 F.T.C. at 1063. Moreover, the allegation

that Defendants did not correct at the point of sale Tomasella's

"false, pre-existing conception" that their chocolate products

were completely free of the worst forms of child labor does not

translate into deception liability. Id. at 1059. Without citing

any precedent, Tomasella argues that because the worst forms of

child labor are universally condemned, consumers acting reasonably

under the circumstances would never expect a product to implicate

such abhorrent labor practices. We need look no further than the

FTC's stated policy rationales to explain the shortcomings of this

argument. Declaring Defendants' packaging omissions to be

deceptive would inevitably "expand[] that concept virtually beyond

limits," considering the vast universe of "erroneous

preconceptions" that individual consumers may have about any given

product as well as "[t]he number of facts that may be material to

[them]." Id. at 1059; cf. Animal Legal Defense Fund Bost., Inc.

v. Provimi Veal Corp., 626 F. Supp. 278, 279-81 (D. Mass. 1986)

(dismissing claim that veal producer acted deceptively and

unfairly by not telling consumers about the upstream mistreatment

of calves in its supply chain because Chapter 93A was an

"inappropriate remedy" for consumers to enforce Massachusetts'

-28-
animal cruelty laws), aff'd, 802 F.2d 440 (1st Cir. 1986).14

On appeal, however, Tomasella disputes the district

court's decision to rely on FTC guidance in general and on

International Harvester in particular. For support, Tomasella

points to the SJC's recognition that "[a] duty exists under

14 The dispute before us comes on the heels of several cases out
of the Ninth Circuit rejecting variants of Tomasella's claims under
California's consumer protection laws on similar grounds. See
McCoy v. Nestlé USA, Inc., 173 F. Supp. 3d 954 (N.D. Cal. 2016)
(dismissing claims that Nestlé violated California consumer
protection laws by omitting information about labor abuses in its
supply chain on the packaging of its chocolate products because
this omission was not contrary to any representations made by the
defendant or a fact that the defendant had a duty to disclose),
aff'd, 730 F. App'x 462 (9th Cir. 2018); Dana v. The Hershey Co.,
180 F. Supp. 3d 652 (N.D. Cal. 2016) (dismissing claims that
Hershey violated California consumer protection laws by omitting
any disclosure of labor abuses in its supply chain on the packaging
of its chocolate products as this omission was not unlawful,
unfair, deceptive, or fraudulent), aff'd, 730 F. App'x 460 (9th
Cir. 2018); Hodsdon v. Mars, Inc., 891 F.3d 857 (9th Cir. 2018)
(affirming dismissal of claims against Mars for violating
California consumer protection laws by omitting any disclosure of
labor abuses in its supply chain on the packaging of its chocolate
products because Mars had no duty to disclose this information and
the omission itself was not unethical or misleading); see also
Wirth v. Mars, Inc., 2016 U.S. Dist. LEXIS 14552 (C.D. Cal. Feb. 5,
2016) (holding Mars did not violate California consumer protection
laws by omitting any disclosure of labor abuses in its supply chain
on the packaging of its cat food products because Mars had no duty
to disclose this information and the safe harbor doctrine
forecloses this claim through the California Transparency in
Supply Chain Act of 2010), aff'd, 730 F. App. 468 (9th Cir. 2018);
Barber v. Nestlé USA, Inc., 154 F. Supp. 3d 954 (C.D. Cal. 2015),
aff'd, 730 F. App'x 464 (9th Cir. 2018); Hughes v. Big Heart Pet
Brands, 2016 U.S. Dist. LEXIS 5508 (C.D. Cal. Jan. 15, 2016),
aff'd, 740 F. App. 876 (9th Cir. 2018); De Rosa v. Tri-Union
Seafoods, LLC, 2016 U.S. Dist. LEXIS 5497 (C.D. Cal. Jan. 15,
2016), aff'd, 730 F. App'x 466 (9th Cir. 2018).

-29-
[Chapter] 93A to disclose material facts known to a party at the

time of a transaction," Exxon Mobil Corp. v. Att'y Gen., 94 N.E.3d

786, 797 (Mass. 2018) (quoting Underwood, 605 N.E.2d at 835), cert

denied sub nom. Exxon Mobil Corp. v. Healey, 139 S. Ct. 794 (2019),

in tandem with Section 3.16(2)'s broad disclosure language. Based

on this duty to disclose material facts, Tomasella argues that she

"need only allege a knowing omission of material information likely

to mislead consumers" in order to plausibly state a deception claim

based on Defendants' omissions. 15 In other words, Tomasella

contends that "requiring disclosure in the absence of any [common

law] duty to do so . . . is the equivalent of saying pure omissions

are actionable" under Chapter 93A. Tomasella also submits that

we have already recognized that her allegations are sufficient to

state a Chapter 93A claim in V.S.H. Realty v. Texaco, Inc., 757

F.2d 411, 417 (1st Cir. 1985), where we noted that "[we] [were]

not convinced . . . that [the plaintiff in that case] need[ed] to

allege more than a failure to disclose a material fact to state a

cause of action under Chapter 93A." Because of these "clear

statements of law" regarding Chapter 93A's "inherent" disclosure

15By Tomasella's account, she has pleaded enough under the proposed
approach to survive the motion to dismiss based on the allegations
that chocolate consumers "were generally unaware of [the labor
abuses] and reasonably assume otherwise," that "studies . . .
indicate that abusive labor practices are material to consumers,"
and that she "would not have purchased the chocolate products had
she known the truth" about their origins.

-30-
obligations, Tomasella submits that the district court need not

have consulted FTC caselaw at all, let alone International

Harvester. For the following reasons, we disagree.

First and foremost, the statutory directive in Chapter

93A to consult FTC and federal court interpretations of relevant

terms and standards is clear. See Mass. Gen. Laws ch. 93A, § 2(b);

see also Aspinall, 813 N.E.2d at 487-88.

Additionally, the supposed clear statements of

Massachusetts law to which Tomasella cites do not, in our view,

lend support to her position. We begin with Exxon, which addressed

the very different issue of the scope of the Massachusetts Attorney

General's investigative power under Chapter 93A. See Exxon, 94

N.E.3d at 791 ("[T]he Attorney General is statutorily authorized

to investigate whatever conduct she believes may constitute a

violation of [Chapter 93A]." (citing Mass. Gen. Laws ch. 93A,

§ 6(1))). To lay out the facts, the Attorney General had launched

an investigation into Exxon for a potential Chapter 93A deceptive

acts violation when internal company documents surfaced showing

that Exxon knew about the climate risks associated with its product

(fossil fuels), failed to disclose that information to the public,

and "instead sought to undermine the evidence of climate change

altogether, in order to preserve its value as a company." Id. at

790. Specifically, the Attorney General posited the following

-31-
failure-to-disclose theory: despite Exxon's "sophisticated

internal knowledge" about the climate risks associated with the

use of its fossil fuel products, the company "failed to disclose

what it knew to . . . consumers," id. at 792, and thus, its

incomplete marketing and advertising of those products to

Massachusetts consumers potentially "created a misleading

impression," id. at 795 (quoting Aspinall, 813 N.E.2d at 395).

When, pursuant to its authority, the Attorney General issued a

civil investigatory demand ("CID") to Exxon for "documents and

information relating to [the company's] knowledge of and

activities related to climate change," Exxon filed suit in state

court to set aside the CID. Id. at 790.

Before the SJC, Exxon argued that, as a nonresident

corporation, it was not subject to personal jurisdiction in

Massachusetts, and that to the extent that the Attorney General's

investigation (and thus the CID) arose from the company's

advertising and marketing activities in Massachusetts, those

activities were conducted by Exxon's franchisees (branded gas

stations) whose communications could not be attributed to Exxon.

Id. at 794. After agreeing with the lower courts' determinations

that this argument belied the language of Exxon's brand franchise

agreements, see id. at 794-95, the SJC concluded that the CID's

request for information relating to Exxon's knowledge about the

-32-
climate risks of its products fell squarely within the Attorney

General's statutory authority to investigate whether Exxon had

indeed "engaged in deceptive advertising . . . by either giving a

misleading impression or failing to disclose material information

about climate change." Id. at 795.

While we understand the attraction of drawing a parallel

to Exxon, there are no grounds for reading the case as establishing

the liberal pleading standard for which Tomasella advocates.

Rather, what the case confirms is that Chapter 93A authorizes the

Massachusetts Attorney General to investigate conduct that she

believes might amount to a Chapter 93A violation, see Mass. Gen.

Laws ch. 93A, § 6(1) (authorizing the Attorney General in

furtherance of her investigatory powers to "examine . . . any

documentary material of whatever nature relevant to such alleged

unlawful method, act or practice" and take testimony under oath),

and reinforces the jurisdictional norms to which the investigation

(including any CID issued in relation thereto) must adhere. As

the legal issues pertained to the Attorney General's powers during

the preliminary stages of a Chapter 93A investigation, the SJC did

not take (and indeed could not have taken) a position in Exxon as

to whether Exxon's nondisclosure constituted a deceptive act.

Therefore, we cannot extrapolate a rule from that narrow decision

that consumers (whose private right of action derives from a

-33-
different section of the statute, see Mass. Gen. Laws ch. 93A,

§ 9) plausibly state a deceptive acts claim simply by pleading

that a company had knowledge of any potentially material

information regarding one of its products but failed to disclose

it.

Likewise, in our view, Underwood falls short of the broad

applicability that Tomasella ascribes to it. There, the SJC

considered whether an owner-broker was guilty of a deceptive act

by failing to disclose "the possibility of lead-based paint in a

residential dwelling to childless prospective tenants." 605

N.E.2d at 834. The SJC held that the owner-broker's nondisclosure

did not violate Chapter 93A because the theory of his liability

was premised on "a suspicion or a likelihood" that the house

contained lead paint "rather than actual knowledge." Id. at 835.

From this, Tomasella draws the conclusion that Chapter 93A's

disclosure obligations extend to all nondisclosures of all known

(as opposed to suspected) material facts. But we find no basis

for such a broad deduction in the language of the decision.

Next, as the district court rightly noted, Section

3.16(2) cannot be fairly read as a carte blanche for Chapter 93A

liability either. By its terms, the regulation provides for

liability when a seller "fails to disclose to a buyer or

prospective buyer any fact, the disclosure of which may have

-34-
influenced the buyer or prospective buyer not to enter into the

transaction." 940 Mass. Code Regs. 3.16(2). Read literally,

Section 3.16(2) would give rise to a nearly boundless disclosure

obligation that exceeds even the breadth of Chapter 93A itself.

Thus, the SJC has stated that despite the regulation's patently

latitudinous language, it "adds little, if anything, to the

provisions of [Chapter 93A] itself," Underwood, 605 N.E.2d at

836, which as we know, proscribes material, knowing, and willful

nondisclosures that are "likely to mislead consumers acting

reasonably under the circumstances," Mayer v. Cohen-Miles Ins.

Agency, Inc., 722 N.E.2d 27, 33 (Mass. 2000). Furthermore, a

pragmatic reading of the regulation is consistent with the SJC's

recognition that "[t]he only limitations on [the Attorney

General's] interpretive power are that his definitions [of unfair

and deceptive] not be inconsistent with FTC and Federal court

decisions . . . and the usual limitations that his regulations be

neither arbitrary nor capricious." Purity Supreme, Inc. v. Att'y

General, 407 N.E.2d 297, 304 (Mass. 1980). Additionally, it

tracks the original intent behind drafting Chapter 93A with open-

ended language, which was "to allow for the regulation of future,

as-yet-undevised, business practices." Id. at 303-04 (citing

Commonwealth v. DeCotis, 316 N.E.2d 748, 754 (Mass. 1974)). Thus,

we are hard-pressed to interpret Section 3.16(2) as mandating the

-35-
disclosure that Tomasella seeks, even in the context of the

Massachusetts case law that she cites.

Lastly, Tomasella's reliance on an isolated statement

from our decision in V.S.H. Realty goes nowhere. That case

implicated the "as is" purchase of "a used bulk storage petroleum

facility," for which the seller (Texaco) represented that it had

not received any notice from government entities "regarding

modifications or improvements to the facility or any part thereof"

and only disclosed an oil seepage in the garage building. V.S.H.

Realty, 757 F.2d at 413. After discovering a second oil seepage,

which the U.S. Coast Guard had previously sought to investigate,

the buyer (V.S.H.) filed suit against Texaco alleging, inter alia,

that the company violated Chapter 93A by failing to disclose the

second oil leak. See id. On the narrow issue of disclosure

obligations created by Chapter 93A, including Section 3.16(2), we

reversed the district court's decision, which found that the

nondisclosure of the property defect was lawful absent an

independent duty to speak, even if that information would have

influenced the buyer's decision to enter the purchase agreement.

See id. at 416. Tomasella hangs her hat on a component of our

reasoning in that case, in which we stated that "[we] [were] not

convinced . . . that V.S.H. need[ed] to allege more than a failure

to disclose a material fact to state a cause of action under

-36-
Chapter 93A" in light of the SJC's emphasis on the difference

between statutory and common law causes of action for fraud and

deceit, the latter of which requires a duty to disclose. Id. at

417 (citing Slaney v. Westwood Auto, Inc., 322 N.E.2d 768 (Mass.

1975)). However, our reasoning was two-pronged, and the cited

statement was preceded by our observation that, even accepting the

pleading requirement of a disclosure duty, "V.S.H. ha[d] met its

burden of establishing a duty by alleging that Texaco made partial

or incomplete statements regarding the oil leaks on the property."

Id. (citing Restatement (Second) of Torts §§ 521, 529). In other

words, our holding in V.S.H. Realty was inextricably linked to the

facts of the case, which involved misleading half-truths relating

to the reasonable fitness of the property, and thus are plainly

distinguishable from those of Tomasella's case.

Next, maintaining that it was error to consult FTC

caselaw at all, Tomasella also contends the district court was

doubly misguided in consulting International Harvester because the

SJC had previously looked to another FTC case, In re Cliffdale

Assoc., Inc., 103 F.T.C. 110 (1984) (hereafter "Cliffdale"), for

guidance on deception liability analysis. We find this argument

unavailing as well.

Tomasella notes specifically that in Aspinall, the SJC

looked to Cliffdale, from which it imported the FTC standard for

-37-
gauging deceptive acts: "if, first, there is a representation,

omission, or practice that, second, is likely to mislead consumers

acting reasonably under the circumstances, and third, the

representation, omission, or practice is material." Aspinall, 813

N.E.2d at 487 (quoting Cliffdale, 103 F.T.C. at 165). She fails

to recognize, however, that International Harvester recounts the

exact same standard, both FTC cases deriving it from the same 1983

FTC policy statement. See Int'l Harvester, 103 F.T.C. at 1056 &

n.18. In any event, in Cliffdale, the FTC held that marketers of

a car engine had engaged in unlawful deceptive acts by placing

advertisements and distributing sales materials that made false

and misleading claims about the value and performance of the

engine. Id. at 161-62. Given the context, it makes sense that

the SJC would cite the mention of the deception standard in

Cliffdale (as opposed to International Harvester) in the Aspinall

decision, where the plaintiffs alleged that a cigarette company

violated Chapter 93A by "marketing . . . Marlboro Lights as 'light'

cigarettes that deliver 'lowered tar and nicotine'" despite having

intentionally designed "light" cigarettes to deliver as much, if

not more, tar and nicotine than regular cigarettes. 813 N.E.2d

at 479. By contrast, Tomasella does not allege that Defendants

intentionally made false and misleading statements in their

advertisements or marketing materials for the chocolate products.

-38-
Instead, as in International Harvester, the heart of the dispute

at hand centers around whether Defendants' staying silent on the

packaging of the chocolate products at the point of sale about

upstream labor practices in their cocoa supply chains constitutes

a deceptive act.

To be sure, Cliffdale did implicate a deceptive

nondisclosure, which arose from the marketers' use of

advertisements with consumer testimonials that created the

impression that the endorsements were made by actual users of the

car engine and were thus "unrestrained and unbiased." 103 F.T.C.

at 171. As it turned out, "a good number" of the individuals

whose testimonials were featured in the marketing materials were

actually "business associates" of the marketers, not actual

product users. Id. at 172. The FTC concluded that the marketers

were "guilty of making a deceptive claim" because failing to

disclose the relationship between the endorser and the seller had

created a false and misleading impression in the minds of

consumers, who were particularly gullible because of the

difficulty that average consumers have in assessing a product like

a car engine themselves. Id. The SJC echoed this ruling in

Aspinall, where it stated that advertising may be deceptive when

it "create[s] an over-all misleading impression through failure to

disclose material information." 813 N.E.2d at 487. This does

-39-
not, however, speak to the deceptive character of omissions like

the ones at issue here, which is precisely why International

Harvester provides a useful reference point.

Therefore, we hold that Tomasella has not plausibly

stated a Chapter 93A deception claim. We now turn to her second

theory.

2. Unfair Acts

Tomasella also challenges the dismissal of her

Chapter 93A unfairness claim. "An act or practice may be 'unfair'

within the statutory meaning [of Chapter 93A] without being

deceptive or fraudulent." Mass. Farm Bureau Fed'n, Inc. v. Blue

Cross of Mass., Inc., 532 N.E.2d 660, 664 (Mass. 1989).

"[A] practice or act will be unfair under [Chapter 93A], if it is

(1) within the penumbra of a common law, statutory, or other

established concept of unfairness; (2) immoral, unethical,

oppressive, or unscrupulous; or (3) causes substantial injury to

[consumers,] competitors or other business people." Heller Fin.

v. Ins. Co. of N. Am., 573 N.E.2d 8, 12-13 (Mass. 1991). Under

this rubric, the legality of the challenged act or practice is not

dispositive of its unfairness. See Mechs. Nat'l Bank of Worcester

v. Killeen, 384 N.E.2d 1231, 1237 (Mass. 1979). In Massachusetts,

the finder of fact determines "what constitutes an unfair trade

practice," but its determination is nevertheless "subject to [a

-40-
reviewing] court's . . . legal gate-keeping function." Mass. Eye

& Ear Infirmary v. QLT Phototherapeutics, Inc., 552 F.3d 47, 69

(1st Cir. 2009).

Tomasella disputes the district court's determination

that she failed to plausibly plead any of the three prongs. With

respect to established concepts of unfairness, Tomasella

challenges the district court's "unduly narrow reading of [her]

claims" as resting only on Defendants' omission of information on

their product packaging about the use of cocoa supply chains with

known child and slave labor and not also the actual "utilization

of the abusive supply chain[s]." By Tomasella's assessment, her

unfair act claims necessarily encompass both practices, which in

her view, "go hand in hand." Tomasella further contends, relying

on our decision in Cooper v. Charter Commc'ns Entm'ts I, LLC, 760

F.3d 103, 111 (1st Cir. 2014), that "to fall within the penumbra

of a statute's concept of unfairness, [the challenged practice]

need not actually violate the statute." Accordingly, she clarifies

that it is her position that Defendants' "utiliz[ation] of supply

chains with known child and slave labor" together with their

continued failure to implement the cocoa certification standards

set forth in the Harkin-Engel Protocol puts their practice of

nondisclosure squarely within the penumbra of the "international

intolerance of slavery and child labor abuses," as expressed by

-41-
the UDHR and ILO Convention No. 182. Even if a statutory violation

were required to plausibly state a Chapter 93A unfairness claim,

Tomasella submits that the Tariff Act, 19 U.S.C. § 1307, which

prohibits the importation of goods from supply chains that rely on

forced labor,16 provides the necessary hook when taken together

with her allegations that Defendants import cocoa beans and paste

from West Africa.

The challenged conduct does not fall within the penumbra

of any recognized concept of unfairness. The Chapter 93A claims

at issue are not based on Defendants' conduct of sourcing cocoa

beans from a supply chain rife with child labor abuses. While

Tomasella undoubtedly pleads numerous facts relating to the

abhorrence and prevalence of the worst forms of child labor in

West African cocoa supply chains, as well as Defendants' knowledge

of and profiting from that practice, functionally, Tomasella

16 In relevant part, the Tariff Act provides:

All goods, wares, articles, and merchandise mined,
produced, or manufactured wholly or in part in any
foreign country by convict labor or/and forced or/and
indentured labor under penal sanctions shall not be
entitled to entry at any of the ports of the United
States, and the importation thereof is hereby
prohibited, and the Secretary of the Treasury is
authorized and directed to prescribe such regulations
as may be necessary for the enforcement of this
provision.

19 U.S.C. § 1307.

-42-
relies on these facts only as predicates for her consumer

protection argument.17 Those allegations do not bring the omission

within the penumbra of common-law unjust enrichment, as described

in greater detail below. And, at any rate, the SJC has never

upheld a Chapter 93A claim because its allegations made out a claim

for unjust enrichment, much less because its allegations were in

the penumbra of unjust enrichment.

Next, we have reason to doubt that Massachusetts state

law would look to broad notions of international law, much less to

concepts of unfairness. Tomasella's arguments in this regard,

even if countenanced, would nevertheless fail on their merits

because she has not provided sufficient information in her

pleadings to establish that such packaging disclosures fall within

the penumbra of the UDHR or ILO Convention No. 182.18

17 By way of comparison, plaintiffs in another forum have
challenged at least one of the Defendants' complicity in the
underlying labor abuses directly. See Doe v. Nestlé, S.A., 929
F.3d 623, 637, 642 (9th Cir. 2018) (holding that defendants'
perpetuation of overseas slave labor from their U.S. headquarters
provided a sufficient domestic nexus for former child slaves
trafficked into Côte d'Ivoire to proceed on their claims against
defendants under the Alien Tort Statute, 28 U.S.C. § 1350, for
aiding and abetting slave labor), petition for cert. filed, No.
19-416 (Sept. 27, 2019).

18Not even the United Nations' Guiding Principles on Business and
Human Rights -- a set of guidelines delineating the corporate
responsibility to respect human rights that references the UDHR
and ILO Convention No. 182 -- extend to point-of-sale disclosures
on products that implicate human rights violations. See Office
of the U.N. High Commissioner on Human Rights, U.N. Guiding

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 As to statutory concepts of unfairness, Tomasella's

argument that the challenged packaging omissions fall within the

penumbra of the Tariff Act fare no better, even assuming arguendo

that a violation of a federal statute could be a source of

unfairness within the meaning of Chapter 93A. By its terms, the

Tariff Act only regulates the importation of goods, and thus

plainly does not extend to point-of-sale packaging disclosures --

not to mention that its enforcement is committed to the discretion

of the Secretary of the Treasury. 19 See 19 U.S.C. § 1307.

Defendants' packaging omissions do not fall within the penumbra of

any established concepts of unfairness.

Regarding the remaining unfairness prongs, Tomasella

maintains on appeal that Defendants' nondisclosure is both

"immoral and substantially injurious to consumers who suffer

Principles on Business and Human Rights: Implementing the United
Nations "Protect, Respect and Remedy" Framework, 13-26, U.N. Doc.
HR/PUB/11/04 (2011). Rather, the Guiding Principles encourage
businesses to make "publicly available" a policy statement
"express[ing] their commitment to meet this responsibility," id.
at 16-17, and when their "operations . . . pose risks of severe
human rights impacts" to "communicate this externally" by
"report[ing] formally on how they address [the impacts]," id. at
23-24.
19Even the one-of-its-kind California Transparency in Supply Chain
Act, Cal. Civ. Code § 1714.43(a)(1), does not provide a statutory
hook because it only goes so far as to require website disclosures
about companies' "efforts to eradicate slavery and human
trafficking from [their] direct supply chain for tangible goods
offered for sale."

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economic loss" and are made to "unwittingly support abusive labor

practices" by buying chocolate products. Because Massachusetts

law requires sellers to disclose material information absent an

independent duty, and because "reasonable Massachusetts consumers

assume that major American companies do not tolerate

internationally condemned labor abuses in their supply chains,"

Tomasella argues that it is therefore "unethical to take advantage

of [those] . . . assumptions and thereby trick consumers into

becoming unwitting participants in the proliferation of child and

slave labor."

Along those lines, Tomasella disputes the district

court's finding that it was neither immoral or substantially

injurious to consumers for Defendants to omit information about

their supply chain abuses "on [their] actual product packaging"

when they "had made such information readily available to consumers

on [their] websites." Tomasella submits that consumers "cannot

be expected to conduct internet research on every item they

purchase -- particularly inexpensive goods at the market," and

therefore, absent a showing that she, or the putative class

members, have actually seen any of Defendants' website

disclosures, the onus should be on the seller to "readily ensure

exposure with a label disclosure."

On balance, Tomasella has not persuaded us that the

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nondisclosure of upstream labor conditions on product packaging at

the point of sale is unscrupulous or substantially injurious to

consumers within the meaning of Chapter 93A. Again, we must

separate the undisputed immorality of the alleged underlying

conduct, which we do not take lightly, from the challenged

nondisclosures. Cf. Hodsdon, 891 F.3d at 867 (holding that while

child labor is "clearly immoral," the notion that omitting

descriptions of those labor practices at the point of sale is

immoral within the California consumer protection context is

"doubtful"). The pleadings do not provide any basis on which to

conclude that Defendants have tricked consumers or taken advantage

of their assumptions for capital gain. And as to substantial

injury, the hard truth with which society must reckon is that

consumers actually benefit from the prevalence of forced child

labor in cocoa bean supply chains because it makes chocolate

cheaper. This is precisely why, as Tomasella herself acknowledges,

consumers are willing to pay premiums for products that are

certified with fair-trade labels. Indeed, the very existence of

fair-trade labels, and their absence from Defendants' chocolate

products, may well convey to consumes who care greatly about such

matters that these products are not the result of fair-trade

practices. Finally, the fact that Defendants have repeatedly made

information about the prevalence of the worst forms of child labor

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in their supply chains publicly available through their websites

and other media mitigates the concern raised that their omission

at the point of sale is unethical per Chapter 93A regardless of

whether Tomasella or the putative class members were (or should

have been) cognizant of Defendants' website disclosures.

Otherwise the list of information that sellers would have to

disclose on their product packaging would be lengthy indeed. See

Int'l Harvester, 104 F.T.C. at 1059-60.

Therefore, we hold that Tomasella has not plausibly

stated a Chapter 93A unfairness claim. Accordingly, we affirm the

dismissal of her Chapter 93A claims for failure to state a claim

upon which relief can be granted.20

B. Unjust Enrichment

We now turn to the second count of Tomasella's

complaints. "Unjust enrichment is defined as 'retention of money

or property of another against the fundamental principles of

justice or equity and good conscience.'" Santagate v. Tower, 833

N.E.2d 171, 176 (Mass. App. Ct. 2005). To plausibly state a claim

for unjust enrichment, the plaintiff must allege: "(1) a benefit

20Having affirmed the dismissal of the Chapter 93A claims for
Tomasella's failure to plausibly state a claim for relief, we need
not address at this juncture whether she has pleaded a cognizable
injury per section 9 of Chapter 93A or whether the disclosures she
seeks would violate Defendants' First Amendment rights.

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conferred upon the defendant by the plaintiff; (2) an appreciation

or knowledge by the defendant of the benefit; and (3) acceptance

or retention by the defendant of the benefit under the

circumstances would be inequitable without payment for its value."

Mass. Eye & Ear Infirmary, 552 F.3d at 57 (citation omitted).

Unjust enrichment is an equitable remedy, which "exist[s] to

supplement those available at law and not to contradict the

judgments embodied in the statutes and the common law." Stevens

v. Thacker, 550 F. Supp. 2d 161, 165-66 (D. Mass. 2008). Thus,

"a party with an adequate remedy at law cannot claim unjust

enrichment." Shaulis, 865 F.3d at 16 (citing ARE-Tech Square, LLC

v. Galenea Corp., 79 N.E.3d 1111 (Mass. App. Ct. 2017)).

Specifically, "[i]t is the availability of a remedy at law, not

the viability of that remedy, that prohibits a claim for unjust

enrichment." Id. at 16.

Tomasella argues that the district court erroneously

relied on the availability versus viability language in Shaulis to

dismiss her unjust enrichment claim. She contends that our

decision in Lass v. Bank of America, N.A., 695 F.3d 129, 140 (1st

Cir. 2012) (holding that a plaintiff may "plead alternative and

even inconsistent legal theories, such as breach of contract and

unjust enrichment, even if Plaintiffs only can recover under one

of these theories"), which we reiterated in Cooper, 760 F.3d 103,

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is controlling under the law of the circuit doctrine because it

predates Shaulis. We disagree.

Under the "law of the circuit" rule, "newly constituted

panels in a multi-panel circuit court are bound by prior panel

decisions that are closely on point." San Juan Cable LLC v. P.R.

Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010) (citation omitted). But

Tomasella misapprehends the doctrine. She contends that because

both Lass and Shaulis reached opposite conclusions regarding a

plaintiff's ability to proceed on an unjust enrichment claim while

citing the same precedent in support of their reasoning, see

Platten v. HG Berm. Exempted Ltd., 437 F.3d 118, 130 (1st Cir.

2006) ("Massachusetts law does not allow litigants to override an

express contract by arguing unjust enrichment."), Lass must take

precedence as the earlier decision. Not so.

First, we are bound by Shaulis because it is a prior

panel decision that is closely on point. To illustrate Shaulis's

applicability, we lay out its facts. The case involved a putative

class action lawsuit stemming from Nordstrom's practice of listing

a "Compare At" price alongside the sale price on price tags for

items at its department store, Nordstrom Rack. See 865 F.3d at

5. In that case, the named plaintiff (Shaulis) sued Nordstrom

after purchasing one of its sweaters with a price tag listing the

purchase price as $49.97 and the "Compare At" price as $218,

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indicating "77% worth of savings," when in actuality, the goods

available for purchase at Nordstrom Rack were "manufactured by

designers for exclusive sale" at Nordstrom's department stores,

meaning that they were never sold at the advertised "Compare At"

prices. Id. (internal quotation marks omitted). On behalf of a

putative class including all consumers who purchased items from

Nordstrom Rack, Shaulis alleged that the "Compare At" pricing

scheme constituted an unfair or deceptive act under Chapter 93A by

"induc[ing] [her] to make a purchase she would not have made, but

for the false sense of value [it] created." Id. at 10. She also

alleged claims for fraud, breach of contract, and unjust

enrichment. See id. at 5.

We ultimately affirmed the dismissal of Shaulis's

Chapter 93A claims for failure to adequately allege a legally

cognizable injury under the state statute, see id. at 15, as well

as the dismissal of her fraudulent misrepresentation and breach of

contract claims, see id. at 15-16. As to her unjust enrichment

claim, we held that it must also be dismissed because, even though

she did not succeed on her Chapter 93A, fraudulent

misrepresentation, and breach of contract claims (i.e., even

though they were not viable), they provided her with "an adequate

remedy at law" (i.e., they were available to her), and that alone

"prohibits a claim for unjust enrichment." Id. at 16 (citing Reed

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v. Zipcar, Inc., 883 F. Supp. 2d 329, 334 (D. Mass. 2012), aff'd,

527 F. App'x 20 (1st Cir. 2013); Fernándes v. Havkin, 731 F. Supp.

2d 103, 114 (D. Mass. 2010) (holding plaintiff's unjust enrichment

claim was precluded by co-existent Chapter 93A claim, which was

dismissed for failure to state an unfair or deceptive act)). The

same is true here. The viability of Tomasella's Chapter 93A claims

is "beside the point." Reed, 883 F. Supp 3d. at 334. Tomasella's

unjust enrichment claims must be dismissed because an adequate

remedy at law was undoubtedly available to her through Chapter 93A.

Next, we do not read Lass and Shaulis as creating an

untenable conflict of law. Lass involved a dispute over whether

a bank that acquired the plaintiff's mortgage wrongfully increased

flood insurance payments beyond what was originally required by

the mortgage agreement. 695 F.3d at 131-134. The plaintiff in

that case brought a breach of contract and unjust enrichment claim

(among others) against the bank, which the district court dismissed

for failure to state a claim. Resolving the breach of contract

issue on appeal turned on the interplay between the relevant

provision of the mortgage agreement and a separate document called

the "Flood Insurance Notification" regarding the authority

provided to the lender to demand increased flood coverage on the

plaintiff's property. Id. Because we concluded that the two

documents, when taken together, created an ambiguity regarding the

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bank's authority to demand increased flood coverage, we reinstated

the plaintiff's breach of contract claim. Id. at 137. As

Tomasella notes, we also reinstated the plaintiff's unjust

enrichment claim on the grounds that, despite the mutual

exclusivity of damages for breach of contract and unjust

enrichment, "it is accepted practice to pursue both theories at

the pleading stage." Id. at 140 (citing Vieira v. First Am. Title

Ins. Co., 668 F. Supp. 2d 282, 294-295 (D. Mass. 2009)). However,

what Tomasella misses is that the ambiguity in the mortgage

contract casts doubt on whether a breach of contract claim was

indeed available as a legal remedy for the plaintiff in that case.

Thus, we reinstated the unjust enrichment claim, so that the

district court could determine anew whether the claim "should

survive" once it had the chance to develop the factual record more

fully. Id. at 141.

By contrast, in Shaulis, because no such ambiguity

existed, we were able to determine that "[b]y charging the agreed

price in exchange for ownership of the sweater, Nordstrom fulfilled

its contractual obligations," which in turn, blocked the plaintiff

from asserting an unjust enrichment claim on top of a breach of

contract claim. 865 F.3d at 16. There is no such ambiguity in

Tomasella's case either. Thus, absent any showing that Chapter

93A provides an insufficient remedy at law, Tomasella's Chapter

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93A and unjust enrichment claims are mutually exclusive.21

Accordingly, we affirm the district court's dismissal of

Tomasella's unjust enrichment claims.

III. Conclusion

For the foregoing reasons, we affirm the dismissal of

Tomasella's complaints against Nestlé, Mars, and Hershey.

Affirmed.

21Even if Tomasella could pursue her unjust enrichment claims, we
doubt she would succeed, for as we have already determined, the
allegedly unjust conduct upon which her theory rests is neither
deceptive nor unfair.

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