Bohr v. Tillamook County Creamery Association

Our firm (together with our amazing cocounsel, Tim Quenelle and Amanda Howell at ALDF) recently secured an important victory before the Oregon Supreme Court in Bohr v. Tillamook County Creamery Association, 373 Or 343, — P3d — (2025).  The Supreme Court’s ruling is kind of a big deal: plaintiffs who allege that they suffered ascertainable loss by paying a “premium” price for products or by purchasing “misbranded” goods that were illegal to sell in the first place are not required to plead that they or members of their proposed class relied on the defendant’s representations.  In its analysis, the Supreme Court put some pretty clear guardrails on its 2015 decision in Pearson v. Phillip Morris, 358 Or 88, 361 P3d 3 (2015), clarifying what Pearson does and does not say on the issues of ascertainable loss and reliance in UTPA cases.

What we pleaded: Tillamook’s marketing v. reality

In Bohr, the plaintiffs allege that Tillamook’s marketing created a misleading impression about the source and production methods of its dairy products.  While Tillamook’s marketing suggested its products came from small, family-owned farms in coastal Tillamook County with high animal welfare standards, plaintiffs alleged that most of Tillamook’s milk actually came from a large factory farm in eastern Oregon—specifically, Threemile Canyon Farms’ massive operation in Boardman, where tens of thousands of cows are housed in industrial-type facilities and subject to around-the-clock milking by robotic arms instead of people.

The plaintiffs allege that Tillamook’s misrepresentations allowed the company to charge premium prices for its products, causing consumers to pay more than they would otherwise have paid.  We allege several theories of liability under the UTPA, including:

A “price premium” or “price inflation” theory: Tillamook’s deceptive marketing allowed it to charge higher prices across the market, causing everyone to pay more, whether you fell for its marketing or not.

An “inducement” theory: Consumers relied on Tillamook’s representations when deciding to purchase its products.  The classic UTPA approach requiring reliance.

A “prohibited transaction” theory: Consumers suffered losses by purchasing “illegal products” that were “misbranded” under federal and state law.  The products shouldn’t have even been on the shelf in the first place.

What the Supreme Court said (and how it narrowed Pearson):

The Oregon Court of Appeals had affirmed the trial court’s dismissal, concluding that all of the plaintiffs’ theories required them to plead that every class member “observed and relied upon” Tillamook’s representations.  The Supreme Court disagreed.

The Supreme Court clarified that its earlier decision in Pearson does not stand for the broad proposition that any UTPA claim involving “affirmative misrepresentations” requires proof of reliance.  Nor, according to the Supreme Court, does it stand for the proposition that any claim involving an alleged loss measured by the purchase price always requires reliance.  The court explained that the claims in Pearson required proof of reliance because “the plaintiffs’ theory of recovery depended on them having formed a belief about the product’s represented characteristics and, then, not receiving what they believed they were buying.”  Bohr, 373 Or at 365.  Claims that “are not dependent on purchasers having had any particular understanding about the nature and origins” of the product, like the claims alleged in Bohr, do not require that showing.  Id.

On that basis, the court ruled that our price-inflation and prohibited-transaction theories do not logically require showing that individual purchasers observed or relied on Tillamook’s marketing.  Here’s what the court said (id. at 368):

“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 dollars, 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.”

Four important takeaways (i.e., what Bohr means and why we’re happy about it):

The Supreme Court’s decision improves the landscape for consumer class actions in Oregon in several important ways:

1. Alternative theories of liability: Plaintiffs now have clearer authority to pursue multiple theories of liability in UTPA cases, including market-based theories that do not require individual reliance.
2. Pleading standards clarified: The Court distinguished between pleading standards and class certification requirements, cautioning courts not put the cart before the horse. At the pleading stage, plaintiffs’ allegations about market-wide price inflation must be accepted as true and get the benefit of the doubt, period.
3. “Premium price” theory recognized: The Court rejected the argument that price-inflation theories are categorically unviable in consumer goods cases, allowing plaintiffs to proceed with allegations that deceptive marketing artificially inflated prices across the market.
4. “Prohibited transaction” theory lives on: The Court assumed that purchasing misbranded or illegally advertised goods could constitute an “ascertainable loss” without requiring consumer reliance. You can thank Tim Quenelle for this one.

 What we think about Justice Balmer’s concurrence:

Bohr’s a big deal, but it’s also worth recognizing that the Court was careful to note that the issues raised by Tillamook “may bear on whether a class should be certified and on whether plaintiffs ultimately will be able to prove their claim.”  373 Or at 346.  The battle will now shift to class certification, where we will need to demonstrate that our theories are economically provable.

This is where the concurrence comes in.  Senior Justice Balmer, in a concurrence, raised two concerns with our case: (1) he’s skeptical about our ability to prove that Tillamook’s marketing caused consumers to pay a premium price for its products, particularly given the subjective nature of consumer perceptions and the complexities of retail food pricing; and (2) he questions the validity of the “prohibited transaction” theory.  While the concerns he raises are totally fair, here’s why we think they’re not as big of a deal as he suggests:

1. Modern economic modeling can address market-wide impacts. Justice Balmer compared our case unfavorably to Clark v. Eddie Bauer and Scharfstein v. BP West Coast Products, where the misrepresentations and losses were more “objective and straightforward.”  But courts increasingly are recognizing that sophisticated economic analysis (think: conjoint analyses and hedonic regression) can reliably measure market-wide price impacts of misleading marketing.
2. The subjective perception issue is not unique to this case. Justice Balmer’s concern about subjective consumer perceptions is a common challenge in consumer class actions, but courts have increasingly recognized that the key question is not whether each consumer subjectively valued the misrepresented attribute identically, but whether the marketplace as a whole assigned value to it.
3. The retail distribution chain isn’t an insurmountable obstacle. While Justice Balmer noted that Tillamook’s products are sold “at two or three levels removed from the company itself,” with prices set by “thousands of retail sellers,” similar challenges have been overcome in other consumer class actions involving retail products.  Price premium analyses can account for these distribution factors.
4. The prohibited transaction theory has been recognized in prior cases. It’s a theory that was recognized most recently in Scharfstein (a court of appeals case).  It’s also consistent with a broad reading of the UTPA, which the Oregon Supreme Court has required for decades.  And courts in other states have recognized that consumers suffer a per se economic harm when they purchase products that are illegal to sell or misbranded under consumer protection laws.

So, while we’re keeping Justice Balmer’s concerns in mind, it’s important to remember that the majority accepted the price premium theory and allowed our claims to go forward on a prohibited transaction theory.  And sometimes a concurrence is just that—a concurrence, especially when it isn’t joined by any other members of the court.  For Oregon consumers and the attorneys who represent them, Bohr provides important new tools in the fight against deceptive marketing practices.