Friday, April 23, 2010

Denny’s Failure to Disclose Sodium Content of Meals Not a Deceptive Act

This posting was written by Jody Coultas, Editor of CCH State Unfair Trade Practices Law.

A restaurant patron could not state an Illinois Consumer Fraud and Deceptive Business Practices Act (CFA) against Denny’s Corporation for failing to disclose the sodium content of its meals, according to the federal district court in Chicago.

The patron began eating meals at Denny’s in 2004. He alleged that 75 percent of the meals at Denny’s contained an amount of sodium that far exceeds the daily recommended amount outlined by the Centers for Disease Control and Prevention (CDC). While the CDC recommends limiting sodium intake to 1,500 milligrams a day, one particular meal offered by Denny’s contained 5,600 milligrams.

Concealment of Sodium Content

Based on the health concerns associated with excessive sodium intake, the patron alleged that Denny’s knowingly concealed the amount of sodium used in its meals and that he and other customers would not have eaten at Denny’s had that information been made available.

Absence of Deceptive Communication

Because there was no deceptive communication presented as evidence, the CFA claim was dismissed by the court. To state a CFA claim, the patron needed to show a deceptive act or practice by Denny’s, intent on the part of Denny’s to deceive customers, and actual damages as a result of the deception.

The patron also needed to present a communication from Denny’s that contained a deceptive misrepresentation or omission. Consumers cannot maintain CFA claims without evidence of a communication even when the claim is based on an omission of material facts, according to the court:

"The Illinois Supreme Court has recently made it clear that a consumer cannot maintain an ICFA claim absent some communication from the defendant, either a communication containing a deceptive misrepresentation or one with a deceptive omission. De Bouse, 235 Ill. 2d at 555, 922 N.E.2d at 316."

The decision is Ciszewski v. Denny’s Corp., CCH State Unfair Trade Practices Law ¶32,026.

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