# Bohr v. Tillamook County Creamery Assn.

> Oregon Supreme Court · April 3, 2025

URL: https://www.frixlaw.com/law-library/cases/10838760

## Case

- **Court:** Oregon Supreme Court
- **Decided:** April 3, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Garrett
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10838760

## How later opinions describe it (automated extraction)

- rejecting theory of economic loss akin to ‘fraud on the market the- ory’
- recognizing that “the UTPA defines a host of unlawful trade practices, which may cause ascertain- able losses in myriad ways”

## Opinion text

No. 10 April 3, 2025 343

IN THE SUPREME COURT OF THE
STATE OF OREGON

Sonja BOHR,
Tamara Barnes, Karen Foglesong,
and Mary Wood, on behalf of themselves
and all others similarly situated,
Petitioners on Review,
v.
TILLAMOOK COUNTY CREAMERY ASSOCIATION,
an Oregon cooperative corporation,
Respondent on Review.
Sonja BOHR,
Tamara Barnes, Karen Foglesong,
and Mary Wood, on behalf of themselves
and all others similarly situated,
Petitioners on Review,
v.
TILLAMOOK COUNTY CREAMERY ASSOCIATION,
an Oregon cooperative corporation,
Respondent on Review.
(CC 19CV36208) (CA A175575) (SC S069773)

On review from the Court of Appeals.*
Argued and submitted March 4, 2024, at Lewis & Clark
Law School, Portland, Oregon.
Nadia H. Dahab, Sugerman Dahab, Portland, argued the
cause and filed the briefs for petitioners on review. Also on the
brief were David F. Sugerman, Sugerman Dahab, Portland;
Tim Quenelle, Tim Quenelle PC, Lake Oswego; and Amanda
Howell, Animal Legal Defense Fund, Cotati, California.
Michael J. Sandmire, Buchalter Law Firm, Portland,
argued the cause and filed the brief for respondent on review.
Also on the brief were Alexandra M. Shulman, and Daniel
L. Lis.
______________
* Appeal from Multnomah County Circuit Court, Kelly Skye, Judge. 321 Or
App 213, 516 P3d 284 (2022).
344 Bohr v. Tillamook County Creamery Assn.

Carson L. Whitehead, Assistant Attorney General,
Salem, filed the brief for amicus curiae Oregon Department of
Justice. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
Kelly D. Jones, Law Office of Kelly D. Jones, Portland;
Chris Mertens, Mertens Law, LLC, Portland; and Thomas
Bode, Larkins Vacura Kayser, LLP, Portland, filed the brief
for amici curiae Oregon Consumer Justice and Oregon Trial
Lawyers Association.
Elizabeth H. White, K&L Gates, LLP, Harrisburg,
Pennsylvania, filed the brief for amici curiae The Chamber
of Commerce of the United States of America, Consumer
Brands Association, Food Northwest, National Federation
of Independent Business Small Business Legal Center, Inc.,
National Retail Federation, Oregon Business & Industry,
and Retail Litigation Center, Inc. Also on the brief were
David R. Fine, K&L Gates, LLP, Harrisburg, Pennsylvania,
and Henry G. Ross, K&L Gates, LLP, Portland.
Before Flynn, Chief Justice, and Duncan, Garrett,
DeHoog, James, and Masih, Justices, and Balmer, Senior
Judge, Justice pro tempore.**
GARRETT, J.
The decision of the Court of Appeals is reversed, and
the case is remanded to the Court of Appeals for further
proceedings.
Balmer, S.J., concurred and filed an opinion.

______________
** Bushong, J., did not participate in the consideration or decision of this
case.
Cite as 373 Or 343 (2025) 345
346 Bohr v. Tillamook County Creamery Assn.

GARRETT, J.
In this putative class action arising under Oregon’s
Unlawful Trade Practices Act (UTPA), plaintiffs allege
that defendant Tillamook County Creamery Association
(Tillamook) made false representations regarding the nature
and origin of its dairy products sold at retail. Plaintiffs con-
tend that, through its marketing and advertising campaigns,
Tillamook caused consumer confusion by representing that
its dairy products are sourced from small, family-owned
farms in Tillamook County that prioritize animal welfare; in
reality, plaintiffs allege, Tillamook sources most of its milk
from a large “factory farm” in eastern Oregon. According to
plaintiffs, those misrepresentations led consumers to suffer
economic harm by purchasing products that they otherwise
would not have purchased or by paying artificially inflated
“premium” prices—that is, higher prices than Tillamook’s
products would have been able to command in the market in
the absence of the false representations.
The issue before this court is a narrow one: whether
plaintiffs’ UTPA claim requires them to plead that Tillamook’s
false representations were “observed and relied upon” by any-
one seeking recovery. Concluding that the answer is yes, the
trial court granted in part Tillamook’s ORCP 21 motion to
dismiss. The court reasoned that, although the complaint ade-
quately alleges reliance on the part of the named plaintiffs, it
fails to do so for members of the putative class, which includes
people who, as the trial court put it, had purchased Tillamook’s
products “without ever having observed any Tillamook mar-
keting.” The Court of Appeals agreed and affirmed the trial
court’s ruling. We allowed plaintiffs’ petition for review and
now reverse the decision of the Court of Appeals. As we will
explain, plaintiffs have alleged violations of the UTPA on legal
theories that, at least as pleaded, do not all logically depend
on a showing that individual purchasers observed or relied
on Tillamook marketing and advertising. The reasons that
the lower courts identified in rejecting certain of those the-
ories may bear on whether a class should be certified and on
whether plaintiffs ultimately will be able to prove their claim,
but not on whether they have pleaded ultimate facts sufficient
to state a claim for purposes of ORCP 21 A.
Cite as 373 Or 343 (2025) 347

I. BACKGROUND
A. Nature of Allegations
This appeal arises out of the trial court’s order
granting in part Tillamook’s ORCP 21 A motion to dismiss
plaintiffs’ second amended complaint for failure to state a
claim. Accordingly, we recite the facts from plaintiffs’ sec-
ond amended complaint, assuming the truth of those alle-
gations and giving plaintiffs the benefit of all reasonable
inferences that may be drawn from them. See Lowe v. Philip
Morris USA, Inc., 344 Or 403, 407 n 1, 183 P3d 181 (2008)
(“In reviewing a ruling allowing a motion to dismiss for fail-
ure to state a claim, an appellate court assumes that all
well-pleaded facts are true and gives the party opposing the
motion the benefit of all reasonable inferences that may be
drawn from those facts.”).
Tillamook is an Oregon cooperative corporation
that does business in Oregon and across the country. In
2017, Tillamook’s revenue attributable to its dairy products
was $800 million. The named plaintiffs are four Oregon res-
idents who, in the year preceding the filing of this action,
purchased Tillamook’s dairy products from one or more
retailers. Plaintiffs allege that they regularly seek out,
and are willing to pay more for, dairy products that they
perceive as “being more humane and coming from small,
pasture-based dairies.” Plaintiffs believed that Tillamook’s
products met that description based on the company’s mar-
keting representations.
Plaintiffs allege false representations by Tillamook
concerning geographic origin; Tillamook’s production prac-
tices; and animal welfare. Regarding geographic origin,
plaintiffs allege that Tillamook represents that its products
are made in Tillamook County “from cows raised in the ver-
dant hills and valleys of the Oregon coast.” Those claims are
false, according to plaintiffs, because “a large majority of the
milk that Tillamook uses in its products is actually sourced
from its massive factory farms in Boardman,” a location in
eastern Oregon that is “flat, arid, and often swelteringly
hot—nothing like Tillamook County.”
348 Bohr v. Tillamook County Creamery Assn.

Regarding production practices, plaintiffs allege
that Tillamook’s marketing campaign “uses only imagery
from small, idyllic farms in Tillamook County,” and “per-
vasively shows cows in open-air barns or on fresh, green
pasture. They are shown being given personalized atten-
tion by the owners of these small farms and their families.”
Through those representations, Tillamook “perpetuates
the idea that Tillamook producers are not ‘factory farms’
where cows are treated like just one of tens of thousands of
units to be milked, but rather small-production farms that
respect their animals and traditional farming practices.” In
reality, plaintiffs allege, Tillamook “sources the large major-
ity of the milk for its products from one of the largest and
most industrialized dairies in the world: Threemile Canyon
Farms’ 70,000-cow complex in Boardman,” where cows are
confined on feedlots with tens of thousands of other animals
and are subject to “round-the-clock” milking performed by
robotic arms instead of people.
Finally, regarding animal welfare, plaintiffs allege
that Tillamook’s marketing features cows that are afforded
outdoor access, allowed to graze on open, green pastures,
and given personalized care and attention. As one example,
the marketing campaign states that, “living just yards from
the barn, farmers are around 24/7/365 for their cows.” That
marketing is deceptive, according to plaintiffs, because the
cows in Boardman “are housed by the tens of thousands in
industrial-type warehouses where they stand on concrete or
in their own waste,” they are not free to graze outdoors, and
it is “extremely unlikely” that the cows receive individual-
ized attention. Plaintiffs further allege that “the majority
of Tillamook’s cows are suffering from mastitis—a painful
disease caused or made worse by teat trauma from milking,
and by poor sanitation.”
B. Procedural History
The UTPA provides a private right of action for any
person who suffers “an ascertainable loss of money * * * as a
result of another person’s willful use” of any unlawful trade
practice enumerated in ORS 646.608. ORS 646.638(1). A
plaintiff bringing an action under ORS 646.638 must prove
that (1) the defendant committed an unlawful trade practice
Cite as 373 Or 343 (2025) 349

enumerated in ORS 646.608; (2) the plaintiff suffered an
ascertainable loss of money or property; and (3) the plain-
tiff’s loss was caused by the defendant’s unlawful trade
practice. Pearson v. Philip Morris, Inc., 358 Or 88, 127, 361
P3d 3 (2015).
Plaintiffs’ second amended complaint (the operative
pleading on review) alleges a single claim for relief for vio-
lation of the UTPA and seeks to represent a class of persons
who purchased Tillamook dairy products in Oregon during
the class period. Within that claim for relief are two counts.
For the first count, alleging a “willful” violation of the UTPA,
plaintiffs allege that Tillamook’s representations violated
three different provisions of the statute: ORS 646.608(1)(b)
(causing likelihood of confusion or of misunderstanding as
to the source of goods); ORS 646.608(1)(d) (using deceptive
representations or designations of geographic origin in con-
nection with goods); and ORS 646.608(1)(e) (representing
that goods have qualities or characteristics that they do not
have).1
Next, plaintiffs allege that, as a result of those vio-
lations, plaintiffs and the class members suffered “ascer-
tainable losses” in several ways. As pertinent to the issues
before us on review, those include the following. First, plain-
tiffs purchased Tillamook goods “at an inflated price based
upon the represented increased economic market value
of those products” because Tillamook’s false portrayals
“allowed Tillamook to charge a premium for its dairy prod-
ucts, and as a result plaintiffs and members of the class paid
1
ORS 646.608 provides, in part:
“(1) A person engages in an unlawful practice if in the course of the per-
son’s business, vocation or occupation the person does any of the following:
“* * * * *
“(b) Causes likelihood of confusion or of misunderstanding as to the
source, sponsorship, approval, or certification of real estate, goods or services.
“* * * * *
“(d) Uses deceptive representations or designations of geographic origin
in connection with real estate, goods or services.
“(e) Represents that real estate, goods or services have sponsorship,
approval, characteristics, ingredients, uses, benefits, quantities or qualities
that the real estate, goods or services do not have or that a person has a
sponsorship, approval, status, qualification, affiliation, or connection that
the person does not have.”
350 Bohr v. Tillamook County Creamery Assn.

more than they otherwise would have paid for Tillamook
dairy products.” Second, plaintiffs “paid higher prices for
Tillamook’s dairy products because of their understanding
that the dairy products” were sourced as Tillamook repre-
sented them to be. Third, the Tillamook products that plain-
tiffs bought had been “misbranded” in violation of federal
law, 21 CFR §101.18 and 21 USC § 331, and had been falsely
advertised in violation of ORS 616.215(5), 616.265, and
616.270; further, because Tillamook was “prohibited” from
engaging in such conduct, plaintiffs were damaged in the
amount of their “purchase price.”
Thus, within a single claim for relief, in addition
to multiple allegations of unlawful conduct, plaintiffs allege
multiple theories of ascertainable loss. One theory is that
plaintiffs overpaid because Tillamook’s marketing allowed
the company to charge a “premium” for its products across
the market, and plaintiffs therefore paid “inflated” prices.
Throughout this litigation, that has been described as plain-
tiffs’ “price-inflation” or “premium-price” theory. A second
theory is that plaintiffs overpaid because they were willing
to pay more for Tillamook’s products based on their “under-
standing” (formed by Tillamook’s marketing) that those
products had certain characteristics. Throughout this liti-
gation, that has been described as plaintiffs’ “inducement”
theory. A third theory is that plaintiffs were damaged in
the amount of the entire purchase price because they pur-
chased “illegal products”—those that had been misbranded
or falsely advertised and that Tillamook, therefore, was pro-
hibited from selling. We refer to that, as have the parties
and the lower courts, as plaintiffs’ “prohibited-transaction”
theory.
The complaint alleges a second count for Tillamook’s
“reckless or knowing” violation of the UTPA, based on the
same allegations underlying the first count. For the first
count, plaintiffs’ prayer seeks “class damages in an amount
to be proved at trial”; for the second count, the prayer seeks
“statutory damages of $200 per class member.”
Tillamook filed several alternative ORCP 21 motions
in the trial court, including a motion to dismiss for failure to
state ultimate facts sufficient to constitute a claim for relief
Cite as 373 Or 343 (2025) 351

under ORCP 21 A; a motion to make plaintiffs’ allegations
more definite and certain under ORCP 21 D; and a motion to
strike several allegations under ORCP 21 E. Under ORCP 21
A, Tillamook moved to dismiss on multiple grounds, including
that plaintiffs had failed to sufficiently plead ascertainable
loss, causation, and reliance. Tillamook’s primary argument
was that, to show that plaintiffs suffered an ascertainable
loss “as a result of” the alleged UTPA violations, plaintiffs
must allege that they relied upon Tillamook’s alleged mis-
representations. In support of that contention, Tillamook
cited a Court of Appeals case holding that, where the alleged
UTPA violations are “affirmative misrepresentations,” “the
causal/’as a result of’ element requires proof of reliance-in-
fact by the consumer.” Feitler v. The Animation Celection,
Inc., 170 Or App 702, 708, 13 P3d 1044 (2000) (citing Sanders
v. Francis, 277 Or 593, 598, 561 P2d 1003 (1977)).2
As to plaintiffs’ allegation that Tillamook’s mar-
keting allowed it to charge a “premium” for its products
throughout the market, Tillamook characterized that as
an attempt to sidestep the required showing of individ-
ual reliance by invoking a “fraud-on-the-market” theory
that is inapplicable outside the context of securities fraud.
Tillamook asserted that this court in Pearson as well as
courts in other jurisdictions have rejected that theory as a
means for establishing ascertainable loss and causation in
consumer protection cases.
The trial court granted Tillamook’s motion to dis-
miss in part and denied it in part. As to the individual
plaintiffs, the court determined that they had sufficiently
pleaded reliance and ascertainable loss by alleging that
they either would not have purchased Tillamook products
or would not have paid as much for them but for Tillamook’s
misrepresentations (along with supporting allegations that
compared the prices of Tillamook’s products and other simi-
lar products). As for the class allegations, however, the trial
court determined that the pleading was defective because
2
As explained in our discussion below, the Court of Appeals’ statement in
Feitler is based on a misunderstanding of our decision in Sanders and is contrary
to our later decision in Pearson. This court did not hold in either of those cases
that proof of reliance is always required in any UTPA claim involving “affirma-
tive misrepresentations.”
352 Bohr v. Tillamook County Creamery Assn.

the class as alleged “include[d] consumers who purchased
Tillamook products without ever having observed any
Tillamook marketing.” According to the trial court, the class
“must be limited to consumers who purchased Tillamook
products in reliance on the Tillamook marketing represen-
tations that are the subject of the complaint.”
The trial court ruled that “[p]laintiffs’ claims that
are based on a price inflation or fraud on the market theory
in paragraph 76 are dismissed.” Although the court agreed
with plaintiffs that “whether reliance is required depends
upon the nature of the violation and damage alleged,” the
court determined that “no authority presented supports
[p]laintiffs’ price inflation theory as plead[ed] in this com-
plaint,” and cited our decision in Pearson as an indication
that this court appears to have rejected that theory.
Finally, the court ruled that “[p]laintiffs’ claims
that are based on a prohibited transaction theory in reli-
ance on 21 [CFR §] 101.18 and ORS 616.265 and 616.270 are
dismissed with prejudice.” The trial court’s written ruling
does not explain the reasoning for that dismissal.
Following the trial court’s decision, plaintiffs
requested that the trial court certify several controlling
questions of law for interlocutory appeal pursuant to ORS
19.225. That statute gives the Court of Appeals discretion
to permit an interlocutory appeal of certain orders in a class
action, including orders that the trial court has designated
as involving “a controlling question of law as to which there
is substantial ground for difference of opinion.” See ORS
19.225; Joarnt v. Autozone, Inc., 343 Or 187, 190, 166 P3d
525 (2007). In their motion, plaintiffs argued that the trial
court’s order on Tillamook’s motion to dismiss had resolved
several controlling questions of law that limited the claims
of the named plaintiffs and functionally resolved the case
against the class members. Plaintiffs highlighted three
aspects of the trial court’s order that resolved controlling
questions of law: (1) the conclusion that plaintiffs and the
class members must plead reliance; (2) the conclusion that
plaintiffs’ claims based on a price-inflation theory are not
cognizable; and (3) the dismissal of plaintiffs’ claims based
on a prohibited-transaction theory.
Cite as 373 Or 343 (2025) 353

Tillamook did not oppose plaintiffs’ request for
interlocutory appeal and proposed additional questions for
certification to the Court of Appeals. The trial court agreed
with the request and, based on the parties’ submissions, cer-
tified seven questions for interlocutory appeal. Only ques-
tions 1, 2, 3, and 5 are relevant to the issues before us on
review, but, for the sake of completeness, we set out all the
certified questions below:
1. “For their claims alleging a violation of the Unlawful
Trade Practices Act, ORS 646.608(1)(b), are Plaintiffs and
the members of the putative class required to plead and
prove that they observed and relied upon Defendant’s
representations?”
2. “For their claims alleging a violation of the Unlawful
Trade Practices Act, ORS 646.608(1)(d), are Plaintiffs and
the members of the putative class required to plead and
prove that they observed and relied upon Defendant’s
representations?”
3. “For their claims alleging a violation of the Unlawful
Trade Practices Act, ORS 646.608(1)(e), are Plaintiffs and
the members of the putative class required to plead and
prove that they observed and relied upon Defendant’s
representations?”
4a. “To establish ascertainable loss under ORS
646.638(1) based upon their theory that Plaintiffs and the
members of the putative class overpaid for the Tillamook
products compared to competing brands, must Plaintiffs
and the members of the putative class plead and prove
which Tillamook product(s) Plaintiffs and the members of
the putative class purchased and at what cost, as well as
the cost of the proper comparator product(s) available at
the time of their respective purchases?”
4b. “If the answer to the foregoing question is ‘no,’ must
Plaintiffs and the members of the putative class nonethe-
less plead and prove which Tillamook product(s) Plaintiffs
and the members of the putative class purchased and at
what cost in order to provide the basis for any ‘inference’ of
ascertainable loss?”
5. “If Plaintiffs plead and prove that Defendant vio-
lated 21 USC [§] 331 by selling ‘misbranded goods’ as defined
in 21 CFR [§] 101.18(c), or that Defendant disseminated a
354 Bohr v. Tillamook County Creamery Assn.

‘false advertisement’ as prohibited by ORS 616.215(5) and
as defined in ORS 616.265 or ORS 616.270, are Plaintiffs
and the members of the putative class required to plead
and prove reliance upon Defendant’s representations for
their claims that Defendant violated the Unlawful Trade
Practices Act, ORS 646.608(1)(b), (1)(d), and (1)(e)?”
6. “Whether Plaintiffs’ claim under ORS 646.608(1)
(b) fails on the basis that the term ‘source’ in that subsec-
tion refers to the company that sells the goods at issue, not
the geographic origin of an ingredient used to make the
goods, and not the supplier of an ingredient used to make
the goods.”
7. “Whether Plaintiffs’ claim under ORS 646.608(1)(b)
fails on the basis that the meaning of ‘goods’ in that subsec-
tion does not include an ingredient used to make the goods,
in this case, milk.”
Pursuant to ORS 19.225, plaintiffs and Tillamook both
filed applications for interlocutory appeal of the trial court’s
order certifying controlling questions of law. The Court of
Appeals granted both applications for interlocutory appeal,
and the parties proceeded to brief their appeals in accor-
dance with the rules governing civil appeals. See ORAP
10.05(8) (providing that, if the Court of Appeals allows an
application for interlocutory appeal under ORS 19.225, “[t]
he appeal shall then proceed in accordance with the stat-
utes and rules governing civil appeals”).
C. The Court of Appeals’ Decision
The Court of Appeals ultimately addressed only
questions 1, 2, 3, and 5, which concern the issue of reliance.
The court answered “yes” to each of those questions and,
accordingly, affirmed the trial court’s ruling dismissing the
claims of the putative class.
The court began by noting that the phrase “as a
result of” in ORS 646.638(1) “ ‘effectively requires that the
unlawful trade practice cause the ascertainable loss on
which a UTPA plaintiff relies.’ ” Bohr v. Tillamook County
Creamery Assn., 321 Or App 213, 229, 516 P3d 284 (2022)
(quoting Pearson, 358 Or at 126 (emphasis in Pearson)). The
court explained that whether a plaintiff must show reliance
on the unlawful trade practice to demonstrate the requisite
causation “ ‘requires reasoned analysis of the claim,’ ” and
Cite as 373 Or 343 (2025) 355

ultimately “ ‘depends on the conduct involved and the loss
allegedly caused by it.’ ” Id. at 230 (quoting Pearson, 358 Or
at 127).
Turning to plaintiffs’ allegations in this case, the
court understood plaintiffs’ complaint “to assert three dis-
tinct theories as to how Tillamook’s unlawful trade prac-
tices caused their injury”: (1) a “price-inflation” theory; (2)
an “inducement” theory; and (3) a “prohibited-transaction”
theory. Id. at 237-38. The court considered each theory in
turn.
Beginning with the “price-inflation” theory, the
court described it as a contention that Tillamook’s mar-
keting misrepresentations empowered Tillamook to charge
more for its products across the entire market, not that the
representations induced any individual purchase. Id. at 238.
Relying on federal case law, the court compared plaintiffs’
theory to the “fraud-on-the-market” theory that “refers to
a rebuttable presumption establishing the reliance element
in securities fraud cases.” Id. at 238-39 (internal quotation
marks omitted). It is based on the idea that, “in an open
and developed securities market, misleading statements
will defraud purchasers of stock even if the purchasers do
not directly rely on the misstatements.” Id. at 239 (internal
quotation marks omitted).
The Court of Appeals concluded that, despite some
conceptual differences between the fraud-on-the-market
theory and plaintiffs’ price-inflation theory, both depend
on the existence of an efficient market, meaning a market
in which price responds to publicly available information
about the value of the product. Id. at 240. However, courts
in other jurisdictions have been disinclined to accept such a
theory in consumer-protection cases, often due to the lack
of an efficient market for the product at issue. Id. at 241-42.
The Court of Appeals noted that, although the issue has not
been squarely addressed by this court, in Pearson, we stated
that “[s]o far, no court presented with a specialized economic
theory of loss has found the theory viable” outside the con-
text of securities fraud. Id. at 242 (internal quotation marks
omitted).
356 Bohr v. Tillamook County Creamery Assn.

Returning to this case, the Court of Appeals
concluded:
“Given the allegations in the complaint and the products
at issue, we conclude that plaintiffs’ price-inflation theory
is untenable. The market for the dairy products at issue
in this case, which are consumer goods, is fundamentally
different from an open and developed securities market, in
the context of which courts have applied the theory of effi-
cient markets.
“* * * * *
“* * * We do not think that it is plausible that a con-
sumer of Tillamook products would rely on the market
price of a Tillamook product for the purpose of determining
the ‘just price’ or objective market value of that product.
That is because, as plaintiffs’ complaint highlights, on a
given day, the price of a particular Tillamook dairy product
can vary substantially depending on the store at which one
purchases it.
“And in contrast to securities—which as noted, people
generally purchase to make a profit—people choose differ-
ent dairy products for myriad reasons: As plaintiffs allege,
some people perhaps saw Tillamook’s advertisements and
purchased Tillamook products because they perceived them
to be ecofriendly. Others, however, might have purchased
Tillamook products because of the expiration date on the
packaging; because of a sense of brand loyalty; because
they like the taste of the product; because the product was
conveniently located on the endcap of a grocery store aisle;
or because they wanted to purchase a dairy product made
in Oregon. Dairy consumers who purchased Tillamook
products for any of those other reasons, and who had not
seen the misrepresentations alleged in plaintiffs’ com-
plaint, were not deceived as to what they were purchasing;
they received what they believed they were paying for at
the price they agreed to pay.”
Id. at 243-45 (internal citations omitted; emphasis in orig-
inal). Thus, the Court of Appeals held that the trial court
had correctly ruled that plaintiffs’ “ ‘price-inflation theory
of causation’ is not a viable theory in this case.” Id. at 245.
The court next addressed plaintiffs’ “inducement”
theory, which is based on plaintiffs’ allegation that they
Cite as 373 Or 343 (2025) 357

and the class members “paid higher prices for Tillamook’s
dairy products because of their understanding that the
dairy products all came from the small family farms with
increased priority of animal welfare in Tillamook County
and the Tillamook County Creamery Association, located
in Tillamook[.]” Id. (emphasis in original). The court deter-
mined that “[i]nducement is a reliance-based theory of loss,”
and therefore concluded that, “[t]o the extent plaintiffs assert
an inducement-based theory of causation, the trial court did
not err in requiring plaintiffs [to] plead that they observed
and relied on Tillamook’s alleged misrepresentations.” Id.
Finally, the court addressed plaintiffs’ “ ‘prohibit-
ed-transaction’ claims.” Id. at 246. The court rejected plain-
tiffs’ reliance on Scharfstein v. BP West Coast Products, LLC,
292 Or App 69, 423 P3d 757, rev den, 363 Or 815 (2018), cert
dismissed, ___ US ___, 140 S Ct 16 (2019)—a case in which
the court held that reliance was not required for the plain-
tiffs’ UTPA claim. The court distinguished Scharfstein as
an “illegal charge” case, “where the unlawful trade practice
(charging class members an unlawful 35-cent debit card
fee) directly caused the ascertainable loss (the 35-cent over-
charge)” without the need to show reliance by the purchaser.
Bohr, 321 Or App at 246. In contrast, here, the court under-
stood plaintiffs’ prohibited-transaction claims as alleging
that Tillamook’s misrepresentation of its products through
false and misleading advertising violated federal and state
law, and they sought damages based on the purchase price
of the products for those violations. Id. at 247. The court
explained that, “ ‘when the claimed loss is the purchase
price, and when that loss must be “as a result” of a misrep-
resentation, reliance is what “connects the dots” to provide
the key causal link between the misrepresentation and the
loss.’ ” Id. (quoting Pearson, 358 Or at 126). Thus, plaintiffs’
“prohibited-transaction” claims required plaintiffs to plead
reliance, the court concluded. Id. at 248.
Having concluded that plaintiffs’ price-inflation
theory is not viable as a matter of law and that plaintiffs’
inducement and prohibited-transaction theories required
that plaintiffs and the class members plead reliance on
Tillamook’s alleged misrepresentations, the court answered
358 Bohr v. Tillamook County Creamery Assn.

“yes” to the four certified questions asking whether plain-
tiffs and the class members were required to plead reliance
for their various UTPA claims and affirmed the trial court
on those rulings. Id. at 249.3
Plaintiffs petitioned this court for review, which we
allowed.
II. ANALYSIS
As explained above, to succeed with their UTPA
action under ORS 646.638, plaintiffs must ultimately prove:
(1) that Tillamook committed an unlawful trade practice
under ORS 646.608; (2) that plaintiffs and the class mem-
bers suffered an ascertainable loss of money or property;
and (3) that the loss was caused by the unlawful trade prac-
tice. Pearson, 358 Or at 127.
In the trial court, Tillamook moved to dismiss
plaintiffs’ complaint on several grounds. The trial court
granted that motion in part, and then certified seven con-
trolling questions of law, on multiple issues, to the Court
of Appeals. The Court of Appeals resolved four of those
questions, all concerning causation and reliance, and deter-
mined that its resolution of those questions made it unnec-
essary to address the other issues. Because we conclude that
the Court of Appeals erred, we reverse and remand to that
court for further proceedings, including to consider in the
first instance whether it should address one or more of the
other controlling questions of law that it accepted but did
not resolve.
A. Whether Plaintiffs’ Claim Requires Pleading “Reliance”
The trial court and the Court of Appeals concluded
that plaintiffs’ legal theories, as alleged, require them to

3
With respect to the remaining certified questions, the court explained that,
because the class members had failed to plead reliance as required, the court
had functionally resolved the claims of the putative class. Id. at 225-26. Having
done so, the court determined that resolution of the remaining certified questions
would apply only to the named plaintiffs, rendering those remaining questions no
longer controlling questions in a class action. Id. at 226-27. Mindful that interloc-
utory appeals in class actions under ORS 19.225 should be reserved for “excep-
tional cases,” and that the court’s review under ORS 19.225 is discretionary,
the court declined to address the remaining questions certified for interlocutory
appeal. Id. at 227-28.
Cite as 373 Or 343 (2025) 359

plead that they relied upon Tillamook’s representations.4
Whether the causation element of a UTPA claim requires a
showing of “reliance” is a question that this court has con-
sidered before. See Sanders, 277 Or at 598; Pearson, 358 Or
at 125-26; see also State ex rel Redden v. Discount Fabrics,
289 Or 375, 384, 615 P2d 1034 (1980) (describing the issue
in Sanders as “whether reliance was a necessary element to
a private action under ORS 646.638(1) * * * because of the
requirement that the loss be the ‘result of’ wilful conduct”).
“Our answer has been: ‘It depends.’ ” Pearson, 358 Or at 126.
ORS 646.638(1), by its terms, does not require
reliance by the consumer. Id. at 125. Instead, the statute
requires that the plaintiff suffer an ascertainable loss “as
a result of” the defendant’s unlawful trade practice. ORS
646.638(1). “That phrase effectively requires that the unlaw-
ful trade practice cause the ascertainable loss.” Pearson, 358
Or at 125-26 (emphasis in original). Due to the extensive
range of prohibited conduct under the UTPA, as well as our
broad understanding of what constitutes an “ascertainable
loss,” Clark v. Eddie Bauer LLC, 371 Or 177, 184-86, 532 P3d
880 (2023), a specific showing of reliance by the consumer
is not always required. For example, we have explained
that, in cases where “the representation takes the form of
a ‘failure to disclose’ * * *, it would be artificial to require a
pleading that [the] plaintiff had ‘relied’ on that non-disclo-
sure.” Sanders, 277 Or at 598. Conversely, in a case where
the “plaintiff claims to have acted upon a seller’s express
representations,” the “plaintiff’s reliance may indeed be a
requisite cause of any loss.” Id.
Because a UTPA violation can take many forms
and result in different kinds of ascertainable loss, “[w]het-
her reliance is required to establish causation turns on the
nature of the unlawful trade practice and the ascertain-
able loss alleged.” Pearson, 358 Or at 126 (citing Discount
4
The trial court, the Court of Appeals, and even the parties at times have
described plaintiffs’ various theories as alleging distinct “claims.” For example,
the controlling questions of law certified to the Court of Appeals refer to plain-
tiffs’ different “claims” under three distinct provisions of the UTPA. As we under-
stand the second amended complaint, however, plaintiffs have alleged a single
claim, within which they have alleged multiple theories that could support relief.
For that reason, we find it more precise to address whether each of those theories
logically requires pleading reliance.
360 Bohr v. Tillamook County Creamery Assn.

Fabrics, 289 Or at 384; Sanders, 277 Or at 598-99); see also
Clark, 371 Or at 189 (recognizing that “the UTPA defines a
host of unlawful trade practices, which may cause ascertain-
able losses in myriad ways”). That determination requires a
“reasoned analysis” of the claim. Pearson, 358 Or at 127.
The Court of Appeals’ analysis, and Tillamook’s
arguments on review, rely heavily on this court’s decision in
Pearson for the proposition that plaintiffs in this case were
required to plead reliance. Because Pearson is central to the
arguments on review, we discuss that case in detail.
The plaintiffs in Pearson, two individuals who had
purchased Marlboro Light cigarettes, brought a class action
against the defendant, the manufacturer and seller of the
product, for violations of the UTPA. 358 Or at 90. For their
class claim, the plaintiffs alleged that the defendant had
violated ORS 646.608(1)(e) by representing that Marlboro
Lights were “inherently” lower in tar and nicotine, when in
fact the amount of tar and nicotine varied based on smoker
behavior. Id. at 117. The plaintiffs asserted that they and
the class members suffered ascertainable losses “as a direct
result” of the defendant’s misrepresentation “because they
paid for cigarettes they believed were inherently lower in
tar and nicotine than [the] defendants’ regular cigarettes
but received cigarettes that would deliver lowered tar and
nicotine only if smoked in particular ways.” Id. at 118. By
way of relief, the plaintiffs asked for “[e]conomic damages
for purchase price refund or diminished value, in an amount
to be proved at trial.” Id. (brackets in original).
Shortly after the defendant filed its answer, the
plaintiffs moved for class certification under ORCP 32 C(1).
Id. at 96. The trial court denied the plaintiffs’ motion, ruling
that individual issues predominated over the common issues
of law and fact, and, for that reason, a class action was not
a superior means for resolving the putative class members’
individual claims. Id. at 99. The Court of Appeals disagreed,
concluding that the essential elements of the UTPA claim
could be proved through evidence common to the class. Id.
at 90. On review, this court held that the Court of Appeals
had erred. Id. at 90-91.
Cite as 373 Or 343 (2025) 361

The ultimate issue before this court was whether
the plaintiffs had “carried their burden to show that * * *
evidence common to the class will generate common answers
for the individual members.” Id. at 115. On that point, the
court noted that the dispute in the lower courts centered on
the elements of ascertainable loss and causation. Id. at 118.
Regarding the former, the Court of Appeals had concluded,
contrary to the trial court’s conclusion, that ascertainable
loss could be resolved based on evidence common to the
class. Id. Regarding the latter, both lower courts had agreed
that proof of causation would require proof of reliance, but
the Court of Appeals had concluded, contrary to the trial
court, that causation and reliance could be proved by proof
common to the class. Id.
To address those issues on review, this court dis-
tinguished the theories of ascertainable loss on which the
plaintiffs predicated their class claim. Id. For their first the-
ory of loss, referred to as a “diminished value” theory, the
plaintiffs alleged that they had purchased a product that
was worth less than what they paid for it, and that their
damages were the difference between the value of the prod-
uct as represented and the lesser value of the product that
they received. Id. at 118-19. That theory was premised on
the notion that the characteristic of “inherent lightness”
had economic value, so that when the class members pur-
chased Marlboro Lights, which lacked the “inherent light-
ness” characteristic, they suffered an out-of-pocket economic
loss. Id. at 119. For their second theory of loss, referred to as
a “refund of purchase price” theory, plaintiffs alleged that
they “bought Marlboro Lights believing [the] defendant’s
representation of inherent lightness, they did not get what
they believed they were getting, and they therefore were
entitled to a refund of their purchase price.” Id.
Beginning with the diminished value theory, the
defendant had produced evidence that Marlboro Lights had
always been priced the same as its regular cigarettes and
argued that that evidence defeated the plaintiffs’ theory
that class members suffered out-of-pocket losses as mea-
sured by the difference in value between Marlboro Lights
and Marlboro regulars. Id. at 119-20. This court agreed. We
362 Bohr v. Tillamook County Creamery Assn.

explained that, “[w]hen the price of goods is not different
based on some represented quality (say, for example, color
or flavor), it simply does not logically follow that the quality
has greater economic worth.” Id. at 122 (emphasis in orig-
inal). Further, the fact that Marlboro Lights and regulars
cost the same also defeated “a reasonable inference that
[the] plaintiffs and the class members paid too much (which
a diminished value theory requires).” Id. at 122-23. We rec-
ognized that,
“[i]n other cases involving light cigarettes and similar
allegations of loss, the plaintiffs have attempted to rely
on expert testimony to establish that the tobacco industry
marketing drove up demand, thus inflating the purchase
price of light cigarettes, so that the plaintiffs paid more
than they otherwise would have if the truth about light
cigarettes had been known. See, e.g., McLaughlin v. Am.
Tobacco Co., 522 F3d 215, 226-27 (2d Cir 2008) (rejecting
theory of economic loss akin to ‘fraud on the market the-
ory’). So far, no court presented with a specialized economic
theory of loss has found the theory viable.”
Id. at 124. But regardless, the plaintiffs in Pearson had failed
to come forward with evidence supporting such a theory. Id.
This court therefore concluded that the “plaintiffs’ theory
of diminished value provide[d] no logically viable theory on
which classwide economic losses can be established.” Id.
Turning then to the plaintiffs’ “refund of purchase
price” theory of loss, this court noted that one of the key
legal disagreements was whether the plaintiffs, to prevail on
their class claim, would have to prove “reliance”; specifically,
“whether [the] plaintiffs’ claim required proof that a sub-
stantial factor in each class member’s decision to purchase
Marlboro Lights was the ‘lowered tar and nicotine’ represen-
tation on their packaging.” Id. at 125. We noted that the text
of ORS 646.638(1) does not, by its terms, require reliance,
but it does require that the unlawful trade practice cause
the ascertainable loss on which a UTPA plaintiff relies. Id.
at 125-26. Based on previous case law, we explained that
whether reliance is required to satisfy the causation ele-
ment of ORS 646.638(1) “turns on the nature of the unlaw-
ful trade practice and the ascertainable loss alleged.” Id. at
Cite as 373 Or 343 (2025) 363

126 (citing Discount Fabrics, 289 Or at 384; Sanders, 277 Or
at 598-99).
In a case where the plaintiff “seek[s] a refund based
on having purchased a product believing it had a repre-
sented characteristic that it did not have,” like the plaintiffs
in Pearson, we explained that reliance on that misrepresen-
tation, although not a required element of a UTPA claim,
is a logical way to establish causation. Id. In that instance,
if the plaintiff establishes that, absent the misrepresenta-
tion, she would not have purchased the product and thus
should receive a refund, causation is established. Id. But if
the plaintiff did not care whether the product had the repre-
sented characteristic, or was unaware of the misrepresenta-
tion, then the misrepresentation did not cause the plaintiff’s
loss in the form of the purchase price, because the plaintiff’s
decision to purchase the product did not depend on the mis-
representation. Id. Accordingly, “[a]s a function of logic, not
statutory text, when the claimed loss is the purchase price,
and when that loss must be ‘as a result of’ a misrepresenta-
tion, reliance is what ‘connects the dots’ to provide the key
causal link between the misrepresentation and the loss.” Id.
Returning to the plaintiffs’ allegations in Pearson,
we determined that the nature of those allegations relating
to the purchase-price theory necessarily required a show-
ing of reliance. Id. at 127. Put differently, when the defen-
dant is alleged to have misrepresented a product as hav-
ing a quality that it does not have, and the plaintiff alleges
that she would not have purchased that product but for the
defendant’s misrepresentation and, thus, that she suffered
an ascertainable loss in the form of the purchase price, the
plaintiff’s reliance on the defendant’s misrepresentation is
required in order to show that the plaintiff’s loss occurred
“as a result of” the defendant’s unlawful conduct. See id.
Throughout the litigation in this case, Tillamook
has argued, based on Pearson, that any UTPA claim involv-
ing “affirmative misrepresentations” requires the plaintiff
to plead reliance on the misrepresentation. The Court of
Appeals also appears to have drawn that rule from Pearson,
when it analogized plaintiffs’ prohibited-transaction the-
ory to the “refund of purchase price” theory discussed in
364 Bohr v. Tillamook County Creamery Assn.

Pearson and concluded that a showing of reliance is therefore
required. Bohr, 321 Or App at 247. Our holding in Pearson,
however, does not stand for the proposition that any UTPA
claim involving “affirmative misrepresentations” requires
proof of reliance. Nor does it stand for the proposition that
an alleged loss measured by the “purchase price” always
requires a showing of reliance.
For the plaintiffs’ purchase-price claim in Pearson,
we explained that reliance was “a natural theory to establish
the causation of the loss (i.e., the ‘injury’ in a UTPA claim)
for a purchaser seeking a refund based on having purchased
a product believing it had a represented characteristic that
it did not have.” 358 Or at 126 (emphasis added). Although
we ultimately concluded that, “when the claimed loss is the
purchase price, and when that loss must be ‘as a result of’ a
misrepresentation, reliance is what ‘connects the dots’ to pro-
vide the key causal link between the misrepresentation and
the loss,” we clarified that it was not just the nature of the
misrepresentation that required proof of reliance. Id. at 126-
27. Rather, it was “the misrepresentation coupled with [the]
plaintiffs’ theory for having suffered a loss in the form of the
purchase price because they did not get what they believed
they were buying.” Id. at 127 (emphasis added). In that case,
“reliance inhere[d] in the combination.” Id.
The crucial underpinning of our analysis and of the
plaintiffs’ purchase-price theory of loss was that the plain-
tiffs had formed a belief about the product’s characteristics
based on the defendant’s representations, they purchased
the product with the expectation that it had those repre-
sented characteristics, and they suffered a loss when they
purchased the product without those characteristics because
they did not get what they believed they were buying. In that
instance, the consumer’s reasons for purchasing the product
were determinative of whether the purchase or “loss” was
the “result” of the misrepresentation. If the consumer could
show that she would not have purchased the product with-
out the misrepresentation, then causation was established.
See id. at 126. But if the consumer did not care whether the
product had the represented characteristic, or was unaware
of the representation, then “the misrepresentation cannot
Cite as 373 Or 343 (2025) 365

be said to have ‘caused’ the purchaser to suffer a loss in
the form of the purchase price.” Id. Thus, proof of consumer
reliance on the misrepresentation was “integral” to the
plaintiffs’ class claim in Pearson, not merely because of the
misrepresentation or because the measure of loss was the
purchase price, but because the plaintiffs’ theory of recovery
depended on them having formed a belief about the prod-
uct’s represented characteristics and, then, not receiving
what they believed they were buying. See id. at 127.
B. Plaintiffs have alleged legal theories that do not logically
require a showing of reliance on misrepresentations.
In this case, plaintiffs allege a theory that resem-
bles the plaintiffs’ purchase-price theory in Pearson—
that, at least as to the named plaintiffs, they purchased
Tillamook products because they had formed a belief based
on Tillamook’s marketing and advertising that the prod-
ucts had certain characteristics that they do not have. But
they also allege additional theories that, unlike the pur-
chase-price theory in Pearson, are not dependent on pur-
chasers having had any particular understanding about
the nature and origins of Tillamook’s products. They allege
that Tillamook’s misrepresentations allowed the company
to charge a “premium” for its products, a premium paid by
all purchasers. And, for their prohibited-transaction theory,
plaintiffs allege that they and the class members suffered
ascertainable loss as a result of Tillamook’s unlawful con-
duct because they purchased “misbranded goods” as defined
by 21 CFR § 101.18(c) and “illegally advertised products”
under ORS 616.265 and ORS 616.270. With respect to that
theory, they allege that, because Tillamook was prohibited
from selling misbranded goods by federal law, 21 USC § 331,
and prohibited from falsely advertising its products by state
law, ORS 616.215(5), plaintiffs and the class are entitled
to damages based on the purchase price of those “illegal
products.”
The Court of Appeals broadly understood plaintiffs’
prohibited-transaction theory as alleging that Tillamook
had made misrepresentations about its products and seek-
ing a refund of the purchase price. Bohr, 321 Or App at 247.
The court thus invoked Pearson to conclude that, “when the
366 Bohr v. Tillamook County Creamery Assn.

claimed loss is the purchase price, and when that loss must
be as a result of a misrepresentation, reliance is what con-
nects the dots to provide the key causal link between the mis-
representation and the loss.” Id. (internal quotation marks
omitted). The key difference between the plaintiffs’ theory
of recovery in Pearson and plaintiffs’ prohibited-transaction
theory here, however, is that plaintiffs’ prohibited-trans-
action theory, as stated in the complaint, does not depend
on plaintiffs having formed any belief about Tillamook’s
products. Rather, as we understand plaintiffs’ allegations,
the ascertainable loss is the purchase of an “illegal prod-
uct” itself, meaning that every person who purchased a
Tillamook product suffered that loss because of Tillamook’s
sale of those illegal products. Plaintiffs seek damages in the
amount of the purchase price for those illegal products, not
because they did not get what they believed they were buy-
ing, but because, they allege, the products never should have
been sold in the first place.
Assuming that the foregoing is a viable theory of
“ascertainable loss,” then we are not persuaded—for pur-
poses of evaluating the sufficiency of plaintiffs’ pleading—
that the loss logically depends on a class member’s hav-
ing known that the products were “misbranded” or falsely
advertised. Plaintiffs have pleaded a theory according to
which the alleged loss inheres in having paid for an “ille-
gal product.” We express no view as to whether that is, in
fact, a viable theory of ascertainable loss under the UTPA.
That question has not been briefed and is not before us. The
trial court dismissed plaintiffs’ “claims that are based on a
prohibited transaction theory” without explanation, and the
Court of Appeals affirmed that ruling after concluding that
plaintiffs’ prohibited-transaction theory required plaintiffs
to plead reliance. That conclusion was based on the court’s
premise that any claim predicated on an affirmative misrep-
resentation and seeking a refund of the purchase price nec-
essarily requires a showing of reliance—a premise that, as
we have explained, takes an overly broad view of Pearson.5
5
Because Pearson was decided at the class-certification stage rather than
on an ORCP 21 motion, it does not expressly speak to when, if ever, reliance
must be pleaded to state a claim under the UTPA. Of course, our conclusion in
Pearson that the plaintiffs’ purchase-price theory inherently required a showing
of reliance is consistent with the view that pleading reliance may be essential
Cite as 373 Or 343 (2025) 367

We turn, next, to plaintiffs’ premium-price theory,
which asserts that Tillamook’s deceptive marketing inflated
the market value of those products and allowed Tillamook
to charge a higher or “premium” price for its products, caus-
ing plaintiffs and the class members to pay a higher price
than Tillamook otherwise would have been able to demand.
Specifically, the complaint alleges that
“[p]laintiffs and the class purchased goods at an inflated
price based upon the represented increased economic mar-
ket value of those products as a result of Tillamook’s suc-
cessful marketing that created widespread likelihood of
confusion or misunderstanding and allowed Tillamook to
charge a premium for its dairy products, and as a result
plaintiffs and members of the class paid more than they
otherwise would have paid for Tillamook dairy products.”
That allegation is not altogether clear, but, reading
the complaint as a whole in the light most favorable to plain-
tiffs and giving them the benefit of all reasonable inferences,
we understand it to allege that (1) a sufficient number of con-
sumers are willing to pay more for dairy products with certain
represented characteristics, so that (2) as a result, the mar-
ket prices for Tillamook’s products, which were falsely rep-
resented to have those characteristics, were driven upward.
Those “premium” prices were then paid by all purchasers—
those who had observed and relied upon Tillamook’s misrep-
resentations and those who had not. The Court of Appeals
concluded that, for consumers in the latter category, the com-
plaint failed to state a claim because those consumers had
not been deceived. We disagree with that reasoning.
The Court of Appeals noted that consumers choose
dairy products for “myriad reasons,” and that consumers
who purchased Tillamook products “for any of those other
reasons, and who had not seen the misrepresentations
to those types of “inducement-based” theories under the UTPA—viz., where a
plaintiff expressly alleges that she was misled by a defendant’s misrepresenta-
tions into making a purchase that she otherwise would not have made. But that
point is little more than tautological: It is difficult to conceive of how a plaintiff
would plead such an “inducement-based” theory without alleging that she was
“induced,” i.e., that she relied upon (and purchased the product because of) the
misrepresentation that constitutes the alleged unlawful practice. To the extent
that the lower courts concluded that an “inducement-based” theory like that dis-
cussed in Pearson requires a plaintiff to show reliance, we do not understand
plaintiffs to take issue with that conclusion.
368 Bohr v. Tillamook County Creamery Assn.

alleged in plaintiffs’ complaint, were not deceived as to what
they were purchasing; they received what they believed they
were paying for at the price they agreed to pay.” Bohr, 321
Or App at 244-45 (emphasis in original).
It may be true that consumers who did not rely on
Tillamook’s alleged misrepresentations were not deceived,
but it does not necessarily follow that none of them suffered
an ascertainable loss—at least, if plaintiffs’ premium-price
theory can be economically proven. Suppose a hypothetical
Oregon consumer purchased Tillamook cheese for four dol-
lars, instead of a competitor’s cheese for three dollars, for
the sole reason that the consumer prefers to support Oregon
businesses, and that she knew nothing about Tillamook’s
production practices. That buyer received exactly what she
was expecting at the price she was willing to pay. But if, as
plaintiffs allege, the market price of the Tillamook cheese
would have been less than four dollars if not for Tillamook’s
deceptive marketing, then the consumer still experienced an
economic loss. Thus, like the prohibited-transaction theory,
the premium-price theory is one that does not, as pleaded,
appear to necessitate a showing that every buyer relied on
Tillamook’s representations.
We briefly address the Court of Appeals’ other rea-
son for rejecting the premium-price theory as untenable.
As explained above, the court analogized plaintiffs’ price-
inflation or premium-price theory to the “fraud-on-the-
market” theory that courts have applied in the federal secu-
rities context, and determined that the analogy fails here
because, unlike the market for publicly traded securities,
the market for Tillamook’s goods is not efficient. Bohr, 321
Or App at 238-39, 243-45. The court went on to explain:
“We do not think that it is plausible that a consumer of
Tillamook products would rely on the market price of a
Tillamook product for the purpose of determining the ‘just
price’ or objective market value of that product. That is
because, as plaintiffs’ complaint highlights, on a given day,
the price of a particular Tillamook dairy product can vary
substantially depending on the store at which one pur-
chases it.”
Id. at 244.
Cite as 373 Or 343 (2025) 369

The Court of Appeals’ analysis was premature in
this procedural posture. Plaintiffs’ complaint alleges that
(1) Tillamook’s misleading marketing violates ORS 646.608;
(2) plaintiffs and the class members suffered an ascertain-
able loss of money by paying inflated or premium prices for
Tillamook’s products; and (3) Tillamook’s unlawful market-
ing caused plaintiffs and the class members to pay those
higher prices. As to causation specifically, plaintiffs allege
that Tillamook’s misleading marketing concerning the
source and qualities of its dairy products inflated the market
value of its products and allowed Tillamook to charge a pre-
mium price. Plaintiffs reference statistics from several con-
sumer reports in their complaint, alleging that consumers
regularly seek out and are willing to pay more for products
that are locally produced and made by small-scale farmers.
Plaintiffs further allege that Tillamook’s misleading mar-
keting and sales prices “have [led] plaintiffs and members of
the class to routinely pay more for Tillamook dairy products,
as compared to national and generic brands.”
Instead of accepting those allegations as true,
the Court of Appeals undertook an assessment of whether
plaintiffs would be able to prove that Tillamook’s market-
ing allowed it to charge a premium. The court’s assessment
of plaintiffs’ price-inflation allegations resembles the Third
Circuit’s analysis of a price-inflation theory in Harnish
v. Widener University School of Law, 833 F3d 298 (3d Cir
2016). But, importantly, Harnish and other cases that the
Court of Appeals cited involving price-inflation claims in the
consumer protection context were resolved at the class-cer-
tification stage rather than the pleadings stage. See, e.g.,
Dzielak v. Whirlpool Corp., No CV 2:12-89 (KM)(JBC), 2017
WL 6513347 at *8 (DNJ Dec 20, 2017) (class certification);
In re POM Wonderful LLC, No ML 10-02199 DDP (RZX),
2014 WL 1225184 at *3 (CD Cal Mar 25, 2014) (class certifi-
cation); Fink v. Ricoh Corp., 365 NJ Super 520, 553, 839 A2d
942, 964 (Law Div 2003) (class certification).6
6
In a footnote, the Court of Appeals cited to one case at the pleadings stage,
New Jersey Citizen Action v. Schering-Plough Corp., 367 NJ Super 8, 842 A2d
174 (App Div 2003). There, the New Jersey Court of Appeals concluded that
the plaintiffs’ price-inflation allegations were insufficient to state causation for
purposes of New Jersey’s Consumer Fraud Act. Id. at 15-16, 842 A2d at 178.
That court similarly equated the plaintiffs’ price-inflation allegations with the
370 Bohr v. Tillamook County Creamery Assn.

At the class-certification stage, courts are tasked
with evaluating the viability of the plaintiffs’ class claims
and the supporting evidence for those claims. See Pearson,
358 Or at 107 (“Establishing that the standards for class
certification are satisfied under both ORCP 32 A and B is not
a mere exercise in pleading. Rather, a plaintiff seeking class
certification has the affirmative burden to demonstrate that
the requirements of ORCP 32 are satisfied.”); cf. Harnish,
833 F3d at 304 (explaining that, under FRCP 23, a plain-
tiff “may not merely propose a method of meeting Rule 23’s
requirements without any evidentiary support,” and that
“trial courts must engage in a rigorous analysis and find
each of Rule 23’s requirements met by a preponderance of
the evidence before granting certification” (internal quota-
tion marks and brackets omitted)). Although a trial court’s
class-certification determination is not a trial on the mer-
its, “the issues that must be resolved for [the court’s] deter-
mination frequently overlap with the merits of a plaintiffs’
class claim.” Pearson, 358 Or at 107-08. Thus, in making its
class-certification determination, “a trial court must ‘probe
behind the pleadings’ to the extent necessary to resolve the
class claims.” Id. at 108 (quoting General Telephone Co. v.
Falcon, 457 US 147, 160, 102 S Ct 2364, 72 L Ed 2d 740
(1982)).
Plaintiffs’ price-inflation theory of loss may well be
novel, at least in the context of consumer protection statutes.
And, to be abundantly clear, the problems that the Court of
Appeals and other courts have perceived with applying such
a theory in the context of consumer goods may well affect
whether a class should be certified, to say nothing of whether
plaintiffs will ultimately be able to prove their theory on
the merits. In this ORCP 21 A posture, however, a court is
required to assume that plaintiffs will be able to adduce evi-
dence in support of their allegation that Tillamook’s false
representations had the effect of systematically inflating
the prices of its goods across the market. See Boise Cascade
fraud-on-the-market theory, and noted that the New Jersey Supreme Court had
rejected the fraud-on-the-market theory in common law fraud claims. Id. The
court concluded that the price-inflation and fraud-on-the-market “theories have
no place as a part of the proofs required of plaintiffs in the [consumer fraud] con-
text either.” Id. at 16, 842 A2d at 178. Based on our reasoning above, we do not
find the court’s analysis in that case persuasive.
Cite as 373 Or 343 (2025) 371

Corp. v. Board of Forestry, 325 Or 185, 197, 935 P2d 411
(1997) (“For purposes of reviewing a motion to dismiss, we
assume the truth of all well-pleaded facts alleged in the
complaint and give plaintiff the benefit of all favorable infer-
ences that may be drawn from those facts.”). If they can do
so, for the reasons we have explained, pleading individual
reliance is not necessary to state a claim that a buyer suf-
fered an ascertainable loss as a result of the violation.
III. CONCLUSION
We conclude that, for their claim alleging violations
of ORS 646.608(1)(b), (d), and (e), where plaintiffs allege
that they suffered ascertainable loss in the form of paying
a “premium” price for Tillamook’s dairy products due to
Tillamook’s conduct that inflated the market value of those
products, plaintiffs and the class members need not plead
that they relied upon Tillamook’s representations. Plaintiffs’
allegations that they purchased “misbranded” and “illegally
advertised” goods in violation of federal and state law also
do not require plaintiffs and the class members to plead
reliance.
The decision of the Court of Appeals is reversed,
and the case is remanded to the Court of Appeals for further
proceedings.
BALMER, S.J., concurring.
I agree with the majority’s resolution of the import-
ant, but narrow, issue before us: Because “plaintiffs allege
that they suffered ascertainable loss in the form of paying a
‘premium’ price” and in purchasing “misbranded” goods that
were illegal to sell at all, plaintiffs were not required to plead
that they or the members of their purported class relied on
Tillamook’s representations. 373 Or at 371. Plaintiffs pre-
sented plausible theories in support of their position that
they could demonstrate ascertainable loss without alleging
(or, at trial, proving) they had relied on, or even were aware
of, the representations. The majority explains in detail the
procedural posture of this case, but the short version is that
the trial court agreed that the named plaintiffs had suf-
ficiently alleged “ascertainable loss” and reliance on the
representations as to themselves, but that their complaint
372 Bohr v. Tillamook County Creamery Assn.

failed to state a claim for relief by members of the putative
class who may have purchased Tillamook products with-
out relying on the challenged representations. The Court of
Appeals agreed, and therefore affirmed.
As the case is presented to us, we assume as true
the well-pleaded allegations in the complaint, including that
the representations made by Tillamook were false, either
factually or in what they implied to consumers as to various
characteristics of Tillamook’s operations and its products,
and that defendant therefore violated one or more provisions
of the Unlawful Trade Practices Act. As the majority sum-
marizes, “[p]laintiffs have alleged legal theories that do not
logically require a showing of reliance on misrepresenta-
tions.” 373 Or at 365.
But the majority also is careful to note that its
holding “assum[es]” that plaintiffs’ “illegal-product” or “pro-
hibited-transaction” theory “is a viable theory of ‘ascer-
tainable loss,’ ” 373 Or at 366, and then moves on to decide
that allegations of reliance on defendant’s representations
were not required. And it emphasizes again that the court
“express[es] no view” as to whether the “illegal-product” the-
ory “is, in fact, a viable theory of ascertainable loss under
the UTPA.” Id. Those issues were not briefed and were not
before the court.
The court concludes that, accepting the allegations
in the complaint as true, it was possible that Tillamook’s rep-
resentations regarding the characteristics of the products
and of their production might have had the effect of allowing
Tillamook to receive a “premium price” for its products in
some circumstances. Thus, the theory did not “as pleaded,
appear to necessitate a showing that every buyer relied on
Tillamook’s representations.” 373 Or at 368 (emphasis in
original). Of course, as the opinion makes clear, to move
beyond the pleading stage, plaintiffs’ premium-price the-
ory would have to “be economically proven,” id., a task not
required in responding to Tillamook’s motion to dismiss. I
agree with that conclusion.
I write separately to comment on two aspects of
the case: (1) what I view as potentially substantial barriers
Cite as 373 Or 343 (2025) 373

plaintiffs are likely to face in proving their premium-price
theory based on the factual allegations in this case, and the
related difficulties likely to be encountered in certifying a
class of purchasers, and (2) the uncertain validity of plaintiffs’
illegal-product theory as applied to defendant’s conduct here.
PLAINTIFFS’ PREMIUM-PRICE THEORY
Plaintiffs will be required to show that the individ-
ual plaintiffs and the class members suffered “ascertainable
loss of money or property, real or personal, as a result of”
another person’s violation of the UTPA. ORS 646.638(1).1
Our cases do not fully define the term “ascertainable loss,”
although the plain terms of the statute make it clear that
mental or psychological distress is not recoverable; the loss
must be of “money or property,” and so, at least in this case,
some kind of financial loss. The required financial loss can
be quite small, even “so small that the common law likely
would reject it as grounds for relief,” Weigel v. Ron Tonkin
Chevrolet Co., 298 Or 127, 136, 690 P3d 488 (1984), but it
must be “capable of being discovered, observed or estab-
lished,” Clark v. Eddie Bauer LLC, 371 Or 177, 185, 532 P3d
880 (2023) (internal quotation marks omitted), and it must
be “ ‘measurable even though the precise amount of the loss
is not known,’ ” id. at 193 (quoting Weigel, 298 Or at 136).
Here, plaintiffs argue that they have suffered ascer-
tainable loss “measured by the premium that Tillamook pur-
chasers pay because Tillamook’s unlawful trade practices
effectively have inflated the prices of its products.” To prove
that theory, plaintiffs will have to present expert testimony
that Tillamook’s marketing, through its website, advertis-
ing, and other promotional efforts caused Oregonians to
believe that all (or a least most) of the milk that goes into
Tillamook’s products comes from cows raised and milked in
Tillamook County and owned primarily (if not exclusively)
by small family farms which treat the cows humanely. Those
studies will be particularly challenging in this case because
1
Of course, if the Attorney General wanted to challenge defendant’s conduct
as constituting unlawful trade practices, that office could bring a civil enforce-
ment action based on the same allegations plaintiffs make in their complaint—
and would not be required to show that any person had suffered a loss, ascertain-
able or otherwise, that was caused by the conduct. Those additional requirements
apply only to private UTPA actions, such as this case.
374 Bohr v. Tillamook County Creamery Assn.

much of what plaintiffs point to as false and misleading are
photographs and statements that do not appear to be false
or misleading on their face, but rather show or describe chil-
dren raising their own cows, contented cows in green open
fields in Tillamook County, and similar bucolic scenes. The
pictures and wording that Tillamook uses, plaintiffs con-
tend in their complaint, falsely project “ethical sourcing [of
its products] as its company ethos, deliberately crafting its
marketing messages to attract * * * consumers[ ] who believe
they are getting such responsibly sourced products when
they buy Tillamook cheese and ice cream.” Plaintiffs’ claims
thus turn primarily on the implications of their market-
ing, rather than on specific false statements. And what a
particular person who is exposed to such advertising takes
away as to whether Tillamook is representing that all of its
milk comes from Tillamook County or whether the milk is
of higher quality than other milk or that their cows live in
much more humane and healthy settings than other cows
will be primarily a subjective reaction by each individual.
The subjective nature of those consumer perceptions will
likely make it challenging to draw inferences about the
effects of the advertising on the price of Tillamook products.
Experts will have to support plaintiffs’ claims that
the result of such marketing is that customers “are willing
to pay more for [those] products [such as Tillamook’s] that
they perceive as being ecofriendly.” That presumably will
require testimony, based on marketing and pricing studies,
that, as a result of the advertising and marketing, many
Oregonians in fact are willing to (and do) pay more for
Tillamook products than they would absent the mislead-
ing advertising, raising such prices above those of compet-
ing products that do not share the favorable characteristics
customers perceive Tillamook products to have—and above
what would otherwise be the market price of the Tillamook
products.2 Plaintiffs, of course, will also have to prove that
Tillamook’s marketing campaign is based on
2
I agree with this court’s rejection of the Court of Appeals’ conclusion that
plaintiffs failed to state a cause of action. However, in my view, that court’s descrip-
tion of the potential challenges of proving their premium-price theory, when applied
to the products Tillamook sells and the economics of the retail food market, seems
generally accurate, and could play a role in a later stage of this case. See Bohr v.
Tillamook County Creamery Assn., 321 Or App 213, 243-45, 516 P3d 284 (2022).
Cite as 373 Or 343 (2025) 375

misrepresentations about the milk that goes into its prod-
ucts, most of which comes from Morrow County, and about
other aspects of Tillamook’s production operations, and that
those misrepresentations constitute unlawful trade prac-
tices. But here, we accept that those allegations are true.
It is useful to consider some prior cases to highlight
the differences between them and plaintiffs’ allegations here.
Recall that, in each case the plaintiff had to prove that the
defendant’s misleading representations caused them some
“ascertainable loss.” And, because these cases are generally
brought as class actions, the plaintiffs had to show that all
class members suffered a qualitatively similar kind of loss,
even if the amount of each person’s loss might be different.
In Clark, for example, the plaintiff would have needed to
show that all purchasers who bought products at the outlet
store that were advertised as marked down from a much
higher “list” price—a price that, in fact, Eddie Bauer had
never charged any customer—suffered ascertainable loss
when they purchased the discounted product, even though
they knew exactly what price they were paying and were
able to examine the product they purchased and determine
that they were willing to pay that price for the product. 371
Or at 180-81. Putting the merits of the Clark plaintiff’s
claims to one side, as this court did, it is nevertheless easy
to see, based on the allegations in that case, exactly what
the alleged misrepresentation was and the nature of the
purported loss. The advertising and price tags at the out-
let store clearly stated that a “Fleece Zip” had a non-sale
price of $39.99, and that it was now being sold at 50 percent
off, with a resulting sales price of $19.99. Id. at 180. Thus,
the plaintiff was plainly presented with the representation
that the product formerly sold for $39.99, which allowed the
plaintiff to claim that she bought the jacket based on that
representation (in addition to alleging that she would not
have purchased the jacket if she had known that that rep-
resentation was false). Id. at 180-83. And, although we did
not address the issue of class certification in Clark, it was
apparent that each buyer of a Fleece Zip at the outlet store
was presented with the same representation that the prod-
uct formerly sold for $39.99, which would allow each to claim
that they would not have purchased the product if they had
376 Bohr v. Tillamook County Creamery Assn.

known the representation was false. See id. at 199 (conclud-
ing that ascertainable loss is established when buyer can
show that they would not have purchased garments had the
defendants not misrepresented price history).
Compare the clear, objective nature of the alleged
price misrepresentation and amount of possible loss in Clark
with this case, where the entire set of representations only
imply certain characteristics regarding Tillamook’s milk
and production practices. It appears to me that the infer-
ences that a purchaser exposed to the marketing draws as
to Tillamook’s products and practices are essentially subjec-
tive and likely to vary substantially among the thousands of
consumers who saw those representations and based their
purchasing decisions on them.3 I understand, of course, that
plaintiffs’ theory does not require that each consumer have
seen the representations, and that the claimed “premium”
price is based on the market-wide impact of the represen-
tations. But that impact nevertheless turns on whether a
large number of individual purchasers of Tillamook prod-
ucts perceive, because of the company’s marketing, that
those products are worth more because they are produced
by contented cows in verdant Tillamook County settings.
Economists, pollsters, and market analysts can be quite
creative, but it may be difficult to sort out the various rea-
sons the products might command a premium price: Did
some consumers believe the products tasted better, based
on their prior consumption of the products? Did others like
the idea of purchasing the company’s products because they
were sourced in Oregon, whether in Tillamook County or
Morrow County?4 Another contrast with Clark, of course,
is the nature of the retail food market, where almost all of
Tillamook’s products are sold to customers at two or three
levels removed from the company itself, with store prices

3
As noted, plaintiffs here allege in their complaint that the price premium
consumers allegedly pay for Tillamook products is because they “perceive” the
products to be “ecofriendly” in some way.
4
For those and other reasons noted by the Court of Appeals, it is question-
able whether a study could be done that would meet the standards of statistical
confidence that would permit an expert to provide the testimony that plaintiffs
will need. A related question is whether plaintiffs would consider even the use of
the name “Tillamook” to be an unlawful trade practice, if applied to products not
sourced in that county, although one hopes that would be a bridge too far.
Cite as 373 Or 343 (2025) 377

being set individually by thousands of retail sellers, based
on the many different cost and competitive forces that each
of them faces. The Eddie Bauer products, on the other hand,
were all sold directly by Eddie Bauer, in Eddie Bauer stores,
at prices set by Eddie Bauer.
Similarly objective and straightforward were the
facts underlying the fact and the amount of the “ascer-
tainable loss” suffered by plaintiffs and class members in
Scharfstein v. BP West Coast Products, LLC, 292 Or App 69,
423 P3d 757, rev den, 363 Or 815 (2018), cert dismissed, __
US __, 140 S Ct 16 (2019). Service stations owned by BP
charged a 35-cent fee for using a debit card, but failed to
disclose the fee on most of its price advertising or on the gas
pump price itself. Id. at 72. As in Clark—and unlike in this
case—each customer using a debit card faced the same fail-
ure by BP to disclose the fee and suffered exactly the same
kind of financial loss, the amount of which was never in dis-
pute. Id. at 72-73. Although gas prices varied among the BP
locations and those stations competed with other brands,
the loss was obvious, was based on BP’s policies regarding
the fee and its price advertising, and was identical for every
debit card user. See id. There was no question of any custom-
er’s subjective views regarding the undisclosed fee or the fact
or amount of the losses they incurred.
Amicus curiae Oregon Department of Justice cites a
federal case from California in support of its contention that
the Court of Appeals set the “ascertainable loss” standard
too high in this case. But that case, Brown v. Hain Celestial
Group, Inc., No C 11-03082 LB, 2014 WL 6483216 (ND Cal
Nov 18, 2014), again highlights the challenges I think plain-
tiffs will face in the next stage of this litigation. Brown was
a class action brought by purchasers of cosmetics, some of
which were sold under the brand name “Avalon Organics”
and others with the printed tagline “Pure, Natural &
Organic.” Id. at *1-2. In fact, the various products contained
very few organic ingredients, in some cases less than 30 per-
cent by weight or volume. Id. at *2-3. The federal district
court certified the case as a class action, based in part on
a “price-premium” theory similar to that offered by plain-
tiffs here. Id. at *18. But consider the differences. First, the
378 Bohr v. Tillamook County Creamery Assn.

alleged representation was a single, specific, unambiguous
statement of fact that the products were “organic,” which the
plaintiffs understood to mean entirely or mostly composed of
organic ingredients. Id. at *2. That labeling alone, if false,
was a violation of federal and California statutes not rele-
vant here. Id. And while individuals might differ in their
interpretation of “organic,” there are widely known and used
standards for that term, as well as specific legal require-
ments. Second, each buyer who bought the product could
not help but see the false factual statement on the front of
each bottle purchased. Id. at *2-3. There was no need to rely
on any subjective understanding or perception on the part
of any class member. Of course, as the trial court pointed
out, for some buyers the fact that the product was branded
as “organic” may have mattered and for some it may not,
but the court understood that the “price-premium” theory
did not require reliance. Id. at *18. Summing up whether a
class of purchasers should be certified, the court stated, “The
plaintiffs’ claims against [the defendant] are simple and uni-
form: the products were presented as organic when, under
the [California Organic Products Act], they were not.” Id. at
*14.
Even with the relatively straightforward nature of
the Brown case, at the class-certification stage, the court
carefully reviewed declarations from the expert witnesses
for each side, including the plaintiffs’ models for later calcu-
lation of the “price premium” and the defendant’s challenges
to those models. The court concluded that the plaintiffs had
“plausibly shown that damages can be calculated on a class-
wide basis,” although no actual calculations had yet been
done. Id. at *20. The admissibility of economic expert testi-
mony would be an issue for a later time, the court found, but
the plaintiffs’ showing was sufficient to support the court’s
decision to certify the class. Id. at *18-20.
The cases discussed above are illustrative of oth-
ers from various jurisdictions applying UTPA-like claims in
class action contexts. Those cases suggest the relatively low
bar many (but not all) courts have set for stating a claim for
relief by private plaintiffs seeking damages for losses suf-
fered because of misleading advertising. But the cases that
Cite as 373 Or 343 (2025) 379

have moved beyond the pleading stage to class certification or
to merits challenges to the allegations of “ascertainable loss”
(or the analogous standards for private plaintiffs to recover
damages under other state statutes) tend to be quite different
from this case. As the court’s opinion here makes clear, at
the class-certification stage, the trial court will be required
to “probe behind the pleadings to the extent necessary to
resolve the class claims.” 373 Or at 370 (internal quotation
marks omitted). At that stage, “courts are tasked with evalu-
ating the viability of the plaintiffs’ class claims and the sup-
porting evidence for those claims.” Id. (emphasis in original);
see generally id. It is certainly possible that plaintiffs’ claims
regarding the falsity of Tillamook’s marketing, the effect of
the false aspects of that marketing on consumers’ perceptions
of the products, and the impact of those perceptions on pric-
ing of Tillamook products can be demonstrated by expert tes-
timony. But the cases where classes have been certified and
consumers have successfully demonstrated financial injury
as a result of a seller’s unlawful trade practices generally
have involved more objective misrepresentations and a more
direct and straightforward impact on prices and consumer
purchasing decisions.
PLAINTIFFS’ ILLEGAL-PRODUCT THEORY
Plaintiffs’ illegal-product theory claims that, because
of its UTPA violations, it was unlawful for Tillamook to sell
any of its milk-based products in Oregon. Plaintiffs are bring-
ing their action pursuant to ORS 646.638, which allows for
private civil actions based on UTPA violations. As we have
explained, the UTPA is enforceable both by private parties
and public prosecuting attorneys. State ex rel Rosenblum v.
Living Essentials, LLC, 371 Or 23, 26, 529 P3d 939 (2023)
(citing ORS 646.638 (governing private civil actions) and
ORS 646.632 (governing public enforcement actions)). The
two types of actions differ in the elements to be proved and
the burdens of proof. State ex rel Redden v. Discount Fabrics,
289 Or 375, 384-86, 615 P2d 1034 (1980). “Ascertainable
loss” is an element of a private civil action, but not of a public
enforcement action. In addition, public enforcement actions
include a requirement that a prosecuting attorney file notice
of an intent to bring a suit and an opportunity for voluntary
380 Bohr v. Tillamook County Creamery Assn.

compliance. ORS 646.632(2) (establishing requirement); ORS
646.632(5), (6) (establishing exceptions to the requirement).
As I understand it, plaintiffs’ illegal-product the-
ory is that (1) Tillamook’s advertising violated the UTPA;
(2) therefore, Tillamook’s products were illegal and should
not have been on the market; (3) therefore, plaintiffs suf-
fered an ascertainable loss when they purchased Tillamook’s
products; and (4) the amount of the ascertainable loss is the
purchase price. Thus, it appears that, under plaintiffs’ the-
ory, plaintiffs could establish an ascertainable loss resulting
from a UTPA violation regardless of whether the violation
had any effect on their understanding of a product’s char-
acteristics, their decision to purchase the product, the price
of the product, or their satisfaction with the product. Under
plaintiffs’ theory, “ascertainable loss” could exist absent any
economic harm or damage to them, as those terms are com-
monly understood. Moreover, the “ascertainable loss” would
be the purchase price of the product, as this case illustrates,
because plaintiffs now seek to recover from Tillamook the
entire amount of all Oregon retail sales of all Tillamook
products during the limitations period. I question whether,
when the legislature created separate, different mechanisms
for private civil actions and public enforcement actions for
UTPA violations, it would have intended the former to be so
broad as to allow private actions on a theory like that pre-
sented here. As noted, that issue was not briefed or argued
in this court. There may be legislative history or other
grounds supporting plaintiffs’ reading of the statute, but it
is not apparent from the text or structure of the statute.
Although I concur in the majority’s conclusion that
the illegal-product theory does not require reliance, it is
worth emphasizing that the majority’s decision should not
be taken to mean that the theory is a viable one on the facts
alleged here.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10838760. Public record. Not legal advice.