In Nides v. DVC Industries, the D.C. Court of Appeals addressed an increasingly important issue under the District's Consumer Protection Procedures Act (CPPA) – the scope and limits of tester standing. The court held that the CPPA's tester standing provision requires a plaintiff to allege an intent to test or evaluate a product – not simply purchase it.
Background: A Salty Dispute
James Nides filed suit against DVC Industries, doing business as
The Spice Lab, claiming the company falsely advertised its
"Pink Himalayan Salt" as being "hand-mined"
from "deep inside the pristine Himalayan Mountains."
According to Nides, the salt was actually sourced from Khewra,
Pakistan – hundreds of miles from the Himalayan range.
The lawsuit, alleging a violation of the CPPA, hinged on Nides's assertion that his purchase of the salt was enough to grant him tester standing under the CPPA (D.C. Code § 28-3905(k)(1)(B)).
What Is Tester Standing?
Tester standing has historically enabled individuals to uncover
hidden forms of discrimination or fraud – for example,
testers posing as renters to reveal racial steering (Havens
Realty Corp. v. Coleman) or job seekers to expose employment
discrimination (Molovinsky v. Fair Employment Council of
Greater Washington, Inc.).
In 2012, the D.C. Council amended the CPPA to explicitly authorize tester standing under the Act. The provision – § 28-3905(k)(1)(B) – permits an individual, "on behalf of that individual, or on behalf of both the individual and the general public, to bring an action seeking relief from the use of a trade practice in violation of a law of the District when that trade practice involves consumer goods or services that the individual purchased or received in order to test or evaluate qualities pertaining to use for personal, household, or family purposes." (emphasis added).
The Legal Issue: What Must a Plaintiff Allege for Tester
Standing Under the CPPA
The key question before the D.C. Court of Appeals was whether
Nides's allegation that he purchased the salt, combined with an
affirmation from his counsel as to third-party testing of other
salts, was sufficient to show tester standing. The court concluded
it did not. In doing so the court noted that Nides did not
adequately allege that he bought the salt with the intent to
test or evaluate it, as required under §
28-3905(k)(1)(B).
While Nides argued that buying the salt and observing the label or referencing existing third-party testing (in this case, of other salts) constituted a valid form of "evaluation," the court rejected that view. It held that the CPPA requires more; specifically, a plaintiff must plausibly allege an intent test or evaluate the product. The court also suggested that the testing or evaluation must uncover new or hidden information about a product.
Why the Complaint Failed
Nides's complaint was dismissed because it did not allege that
he intended to test or evaluate the product in any way, nor that he
did so after purchase. As the court noted, "[a]n intent to
read a label – or to review preexisting, third-party testing
– does not constitute the intent to 'test or
evaluate' the purchased product contemplated by the
statute."
Implications: Not Just Any Buyer Has Tester
Standing
This decision sets a clear precedent: To have tester
standing under the CPPA, a plaintiff must allege an intent to test
or evaluate a product at the time of purchase. While the
court left for another day just what testing or evaluation a
plaintiff must ultimately perform, the court was clear that simply
observing a product's label or reviewing third-party tests is
not enough.
For defendants, Nides provides a powerful precedent for challenging tester standing under the CPPA and thwarting lawsuits by serial plaintiffs that do not actually intend to test or evaluate a product.
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