Bohr v. Tillamook County Creamery Assn.

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), ORS 616.265, and

ORS 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 ascer-

tainable loss, causation, and reliance. Tillamook’s primary

argument was that, to show that plaintiffs suffered an ascer-

tainable loss “as a result of” the alleged UTPA violations, plain-

tiffs must allege that they relied upon Tillamook’s alleged

misrepresentations. 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 sub-

section 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

accordance 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

Cite as 373 Or 343 (2025) 355

causation “ ‘requires reasoned analysis of the claim,’ ” and

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 marketing mis-

representations empowered Tillamook to charge more for its

products across the entire market, not that the representa-

tions 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 rebutta-

ble presumption establishing the reliance element in secu-

rities fraud cases.” Id. at 238-39 (internal quotation marks

omitted). It is based on the idea that, “in an open and devel-

oped 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 con-

cluded:

“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 products

had certain characteristics that they do not have. But they

also allege additional theories that, unlike the purchase-

price theory in Pearson, are not dependent on purchas-

ers 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-

certification 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

“prohibited-transaction” theory “is a viable theory of ‘ascer-

tainable loss,’ ” Id. 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

representations regarding the characteristics of the prod-

ucts and of their production might have had the effect of

allowing Tillamook to receive a “premium price” for its prod-

ucts in some circumstances. Thus, the theory did not “as

pleaded, appear to necessitate a showing that every buyer

relied on Tillamook’s representations.” Id. at 368 (empha-

sis in original). Of course, as the opinion makes clear, to

move beyond the pleading stage, plaintiffs’ premium-price

theory 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 prod-

ucts than they would absent the misleading advertising,

raising such prices above those of competing products that

do not share the favorable characteristics customers per-

ceive 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 misrepresentations about

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

the milk that goes into its products, most of which comes

from Morrow County, and about other aspects of Tillamook’s

production operations, and that those misrepresentations

constitute unlawful trade practices. 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 deter-

mine that they were willing to pay that price for the prod-

uct. 371 Or at 180-81. Putting the merits of the Clark plain-

tiff’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

outlet store clearly stated that a “Fleece Zip” had a nonsale

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.