Milton Mills , M.d., Et Al . v. Giant of Maryland, LLC, Et Al .

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 14, 2007 Decided November 16, 2007
No. 06-7148
M ILTON M ILLS , M.D., ET AL .,
APPELLANTS
v.
GIANT OF M ARYLAND, LLC, ET AL .,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 05cv02211)
Daniel Kinburn argued the cause for appellants. With
him on the briefs were Bernard J. DiMuro and John M. Tran.
Steven J. Rosenbaum argued the cause and filed the brief
for appellees.
Geoffrey S. Gavett filed a notice adopting the brief of
appellees on behalf of Cloverland Farms Dairy, Inc.

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Before: GARLAND and KAVANAUGH , Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge
KAVANAUGH .
KAVANAUGH , Circuit Judge: In this case, a group of
lactose-intolerant individuals filed an unusual class-action
lawsuit against nine sellers of milk. The plaintiffs allege that
they consumed milk before they were aware of their lactose
intolerance and, as a result, suffered temporary gas and
stomach discomfort. According to plaintiffs, the milk sellers
should have put warnings on the labels, informing consumers
that some individuals might be intolerant of milk.
The District Court dismissed the suit, holding that it did
not state a claim under District of Columbia tort law. We
affirm. Tort law does not provide protection from the obvious
or “widely known” risks of consuming a particular food. The
risk that some people will get gas after consuming certain
foods, such as milk, is widely known. A bout of gas or
indigestion does not justify a race to the courthouse. Indeed,
were the rule otherwise, a variety of food manufacturers as
well as stadiums, bars, restaurants, convenience stores, and
hot dog stands throughout the country would be liable to
millions of would-be plaintiffs every day. Plaintiffs’ novel
claim falls far short of what D.C. law requires.
I
Millions of Americans suffer from lactose intolerance, a
genetic condition that prevents them from processing the
principal sugar in milk. NAT ’ L I NST . OF DIABETES &
DIGESTIVE & KIDNEY DISEASES , U.S. DEP ’ T OF HEALTH &
HUMAN SERVS ., LACTOSE I NTOLERANCE 3 (2006). For

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lactose-intolerant individuals, the consumption of milk and
other dairy products can result in unpleasant stomach
symptoms.
Plaintiffs are a group of lactose-intolerant individuals
who reside in the District of Columbia and Maryland. They
purport to represent a class of all lactose-intolerant persons
“who, unaware of their condition, have purchased milk in
Washington, D.C., and suffered the consequences of its
consumption.” Complaint at 8, Mills v. Giant of Md., No.
05cv02211 (D.D.C. Oct. 6, 2005), Joint Appendix (“J.A.”) 17.
They allege that, before they were aware of their condition,
they suffered temporary “flatulence, bloating, cramps, and
diarrhea” as a result of drinking milk. Complaint at 2, J.A. 11.
Plaintiffs filed suit in the Superior Court of the District of
Columbia against nine defendants – seven dairy processors
and two grocery-store retailers that sell milk in D.C. Under
the Class Action Fairness Act, defendants removed the case to
the U.S. District Court for the District of Columbia. See 28
U.S.C. §§ 1332(d), 1453.
In their complaint, plaintiffs allege that the milk sellers
breached their duty of reasonable care. According to
plaintiffs, the sellers were aware of the effects of milk on
consumers who did not yet know they were lactose intolerant,
but the sellers failed to warn consumers about those effects.
Plaintiffs’ lawsuit seeks damages as well as a permanent
injunction requiring milk sellers to include warnings on their
milk packaging, such as the following:
Warning – If you experience diarrhea or
stomach cramps after consuming milk, you may
be lactose intolerant. Check with your
physician.

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Warning – Lactose intolerant individuals may
experience bloating, diarrhea, or other
gastrointestinal discomfort from consuming
milk. Check with your physician.
Complaint at 17, J.A. 26.
The District Court dismissed the suit under Federal Rule
of Civil Procedure 12(b)(6). First, the court concluded that
the federal Nutrition Labeling and Education Act preempted
plaintiffs’ D.C. tort-law claim. See 21 U.S.C. § 343-1(a)(1).
The NLEA prohibits states and local authorities from
establishing any requirement for food that is the subject of a
federal “standard of identity” – a federal definition of the
composition of a food – unless the requirement is identical to
that federal standard of identity. See id. The court concluded
that D.C. may not impose labeling requirements for milk
different from the labeling requirements that federal law
imposes.
Second, the court held that, in any event, plaintiffs failed
to state a claim under D.C. tort law. The District Court
concluded that no duty to warn exists when the health hazard
associated with a food product is analogous to a common
allergy. The court reasoned that, because lactose intolerance
is a widely known condition and results in less severe
symptoms than many common allergies (such as shellfish
allergies), there is no duty to warn of the risk of consuming
milk.
We review de novo the District Court’s dismissal of
plaintiffs’ claim. Gilvin v. Fire, 259 F.3d 749, 756 (D.C. Cir.
2001). The existence of a legal duty to warn in this situation
is a question of law for the court to determine. In re Sealed

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Case, 67 F.3d 965, 968 (D.C. Cir. 1995) (citing Zhou v.
Jennifer Mall Rest., 534 A.2d 1268, 1274 (D.C. 1987)).
II
According to plaintiffs, milk manufacturers and sellers
must provide warnings that milk can cause certain consumers
to suffer temporary gas and stomach discomfort. The problem
for plaintiffs is that a manufacturer’s or seller’s duty of
reasonable care does not entail a duty to warn of risks “that
should be obvious to, or generally known by, foreseeable
product users.” RESTATEMENT (THIRD ) OF TORTS : PRODUCTS
LIABILITY § 2 cmt. j (1998); see Delahanty v. Hinckley, 564
A.2d 758, 760 (D.C. 1989) (“There is no duty to
warn . . . ‘when the danger, or potentiality of danger, is
generally known and recognized.’”) (quoting RESTATEMENT
(SECOND) OF TORTS § 402A cmt. j (1965)); PROSSER &
KEETON ON THE LAW OF TORTS § 96, at 686 (5th ed. 1984).
This principle derives from the common-sense notion that
warning of an “obvious or generally known risk in most
instances will not provide an effective additional measure of
safety.” RESTATEMENT (THIRD ) OF TORTS : PRODUCTS
LIABILITY § 2 cmt. j. After all, “warnings that deal with
obvious or generally known risks may be ignored by users and
consumers and may diminish the significance of warnings
about non-obvious, not-generally-known risks.” Id.
In the food context, these tort-law principles foreclose
failure-to-warn liability when the risk that some people might
have an adverse reaction to the food is “widely known.” As
the Restatement of Torts explains, when “both the presence of
an allergenic ingredient in the product and the risks presented
by such ingredient are widely known, instructions and
warnings about that danger are unnecessary.” RESTATEMENT
(THIRD ) OF TORTS: P RODUCTS LIABILITY § 2 cmt. k; see also

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RESTATEMENT (SECOND ) OF TORTS § 402A cmt. j (Where “the
product contains an ingredient to which a substantial number
of the population are allergic, and the ingredient is one whose
danger is not generally known, or if known is one which the
consumer would reasonably not expect to find in the product,
the seller is required to give warning against it . . . .”).
Courts have applied these principles to a host of failure-
to-warn challenges regarding the widely known risks of
consuming certain foods. See, e.g., Garrison v. Heublein,
Inc., 673 F.2d 189, 192 (7th Cir. 1982) (dangers of alcohol are
“common knowledge”); Pelman v. McDonald’s Corp., 237 F.
Supp. 2d 512, 541 (S.D.N.Y. 2003) (health risks associated
with fast foods are “open and obvious”); id. at 532 (“It is well-
known that fast food in general, and McDonalds’ products in
particular, contain high levels of cholesterol, fat, salt, and
sugar, and that such attributes are bad for one.”); Joseph E.
Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385, 388 (Tex.
1991) (danger of alcohol is “widely known and recognized”);
Maguire v. Pabst Brewing Co., 387 N.W.2d 565, 570 (Iowa
1986) (risk of intoxication from beer is “sufficiently known to
consumers at large”); see also RESTATEMENT (SECOND) OF
TORTS § 402A cmt. i (ordinary consumer is aware that sugar
can harm diabetics); id. (well known that butter can cause
clogged arteries); cf. RESTATEMENT (THIRD ) OF T ORTS :
PRODUCTS LIABILITY § 2 cmt. k, illus. 13 (producers can
assume that those who are allergic to aspirin are aware of their
allergies); RESTATEMENT (SECOND) OF T ORTS § 402A cmt. j
(“The seller may reasonably assume that those with common
allergies, as for example to eggs or strawberries, will be aware
of them, and he is not required to warn against them.”).
In two main categories of cases, the risks from food are
not considered “widely known”: “unknown-ingredient” cases
and “unknown-harm” cases.

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The first category – “unknown-ingredient” cases –
encompasses situations where a substantial number of
consumers are allergic to a food ingredient that reasonable
consumers would not expect to find in the food. See, e.g.,
Livingston v. Marie Callender’s, Inc., 72 Cal. App. 4th 830,
832, 839-40 (1999) (MSG in fresh vegetable soup); Brown v.
McDonald’s Corp., 655 N.E.2d 440, 442-44 (Ohio Ct. App.
1995) (seaweed-derived ingredient in hamburger). The
parties here agree, however, that this is not an “unknown-
ingredient” case: Plaintiffs’ complaint relates not to an
unknown ingredient in milk but rather to the known and
inherent qualities of milk.
The second category – “unknown-harm” cases –
encompasses situations where reasonable consumers are not
aware of the harm that a food may cause to certain people. In
other words, although consumers may know the ingredients in
a certain food, they may not know the harm that the food or
the food’s known ingredients can bring about. The relevant
inquiry in an “unknown-harm” case is whether a “reasonable”
consumer would know that the food could cause an adverse
reaction in some people. See RESTATEMENT (THIRD ) OF
TORTS: PRODUCTS LIABILITY § 2 cmt. k.T P F
1FPT
We need not ponder what kinds of hypothetical food
cases, if any, properly fit into the “unknown-harm” box under
D.C. tort law because we hold as a matter of law that a
reasonable consumer today would be well aware that milk
may adversely affect some people. Although it is true that
lactose intolerance is not randomly dispersed throughout the
T
P
1P
T
This case involves a claim about the inherent aspects of a food
product, not about an adulterated food, such as when a pebble is
found in a can of peas. An adulterated food is considered a
manufacturing defect. See RESTATEMENT (T HIRD) OF T ORTS :
P RODUCTS L IABILITY § 7 cmt. a; id. § 2 cmt. h.

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population, the fact that 30 to 50 million Americans suffer
from some level of lactose intolerance makes it likely – as a
matter of basic statistics – that most Americans and most D.C.
residents know a family member, friend, co-worker, or other
acquaintance who cannot comfortably drink milk. See NAT ’ L
I NST . OF DIABETES & DIGESTIVE & KIDNEY DISEASES , U.S.
DEP ’ T OF HEALTH & HUMAN SERVS., LACTOSE I NTOLERANCE
3 (2006). Moreover, products targeted to lactose-intolerant
individuals are now commonplace in grocery stores and
pharmacies. See, e.g., CVS/pharmacy, cvs.com; Lactaid,
lactaid.com; Organic Valley, organicvalley.coop; Peapod by
GIANT, peapod.com. And in addition to knowledge
distributed by word of mouth, the problem of lactose
intolerance has received an extraordinary amount of attention
in the media and in the medical community. See, e.g., Jane E.
Brody, Food Allergies: A Growing Controversy, N.Y. TIMES ,
Apr. 29, 1990 (“The best known [adverse reaction to food] is
lactose intolerance . . . .”); Elena Cherney, New Lactose-
Intolerance Advice, WALL ST . J., Sept. 5, 2006, at D4; Daniel
Q. Haney, Lactose Intolerant? Think Again, HOUSTON
CHRON ., July 6, 1995, at A16; Lynn Jacobson, Got Distress?
Maybe You’re Lactose Intolerant, SEATTLE TIMES , May 16,
2001, at E1; Lactose Intolerance Is Common, CINCINNATI
POST , July 24, 2001, at 7B; Warren E. Leary, Just How
Distressing Is Lactose Intolerance?, N.Y. TIMES , July 12,
1995 (“Dr. Levitt said he believed that many people say milk
is to blame for their digestive problems because lactose
intolerance has been so well publicized and widely
discussed.”); Hilary E. MacGregor, Dairy Needed, Even for
the Lactose-Intolerant, L.A. TIMES , Sept. 13, 2006; Kim
Painter, Don’t Milk Lactose for Ills, USA T ODAY , July 6,
1995, at 1A (describing lactose intolerance as a “trendy
ailment”); Connie Prater, Got Gas? You Might Be Lactose
Intolerant, CHI . TRIB., Mar. 30, 2003, at Q10; see also

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NUTRITIONAL DISEASE , ENCYCLOPAEDIA BRITANNICA
ONLINE .
We will not belabor the obvious. For purposes of tort
law, the risk that milk will cause some people to experience
temporary gas and related stomach discomfort is “widely
known” – even if lactose intolerance as the cause is not. As a
result, the risk that milk will cause temporary gas and stomach
discomfort to lactose-intolerant individuals who do not yet
know of their condition cannot support a failure-to-warn tort
claim under D.C. tort law.T P F
2FPT
* * *
We hold that plaintiffs’ claim is not cognizable under
D.C. tort law. We therefore do not determine the preemptive
scope of the “standard of identity” for milk under 21 U.S.C.
§ 343-1(a)(1) and 21 C.F.R. § 131.110. Similarly, we
withhold judgment on whether the kinds of injuries alleged by
plaintiffs fall within the “safety” exception to the preemption
provision. See Nutrition Labeling & Education Act, Pub. L.
No. 101-535, § 6(c)(2), 104 Stat. 2353, 2364 (1990). We
affirm the judgment of the District Court.
So ordered.
T
P
2P
T
Even if the risk were not widely known, the fact that the alleged
harm from consuming milk is temporary and limited still might
negate any warning requirement. Cf. Owens-Corning Fiberglas
Corp. v. Henkel, 689 A.2d 1224, 1229 (D.C. 1997).

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