“Proxy-Testing” Fraud Claims after Wertymer v. Walmart: The Seventh Circuit Demands Non-Speculative Allegations When Alternative Explanations Exist

Introduction

In John Wertymer v. Walmart Inc. (No. 24-2001, July 1 2025), the United States Court of Appeals for the Seventh Circuit confronted a familiar but increasingly sophisticated type of consumer-fraud litigation: a class action premised on alleged mislabeling of food products, “verified” through private laboratory testing. Plaintiff John Wertymer claimed that Walmart’s “Raw Honey” and “Organic Raw Honey” were not truly raw because lab tests showed elevated levels of the chemical 5-hydroxymethylfurfural (HMF) and a slightly raised mannose content.

The district court dismissed on Rule 12(b)(6) grounds, and the Seventh Circuit—per Judge Rovner, with Judges Easterbrook and Kirsch on the panel—affirmed. The appellate opinion crystallises a notable doctrinal refinement: when a plaintiff’s fraud theory relies on a scientific “proxy” (here, HMF or mannose) that admits of obvious, innocent explanations, the complaint must plausibly eliminate those alternatives. Failure to do so renders the claim speculative and insufficient under both Rules 8 and 9(b) as interpreted in Twombly and Iqbal.

Summary of the Judgment

• Affirmed the Rule 12(b)(6) dismissal of all remaining claims—Illinois Consumer Fraud and Deceptive Practices Act (ICFA) deception & unfairness, and common-law fraudulent misrepresentation.
• Held that plaintiff’s own pleadings and incorporated documents established “obvious alternative explanations” (storage time, tropical origin, pH, etc.) for the HMF and mannose values, defeating any plausible inference of deliberate heating or industrial processing.
• Re-emphasised that Rule 9(b) demands the “who, what, when, where, and how” of the fraud, and Rule 8 bars “sue-first, ask-questions-later” complaints, especially when reputational harm to businesses is at stake.
• Criticised counsel’s shifting theories across other honey cases (40 mg/kg Codex standard in earlier suits; 10 mg/kg in this case), signalling courts’ increasing intolerance for serial, copy-paste consumer suits unsupported by solid science.

Analysis

Precedents Cited and Their Influence

• Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) & Ashcroft v. Iqbal, 556 U.S. 662 (2009)
  – Anchored the plausibility framework: complaints must raise entitlement to relief “above the speculative level” and overcome “obvious alternative explanations.”
  – Wertymer applies this rigorously to scientific proxy allegations.
• Horist v. Sudler & Co., 941 F.3d 274 (7th Cir. 2019) & Kahn v. Walmart Inc., 107 F.4th 585 (7th Cir. 2024)
  – Recited ICFA elements and the “reasonable consumer” standard; court bypassed these later prongs because the complaint flunked the first (false/deceptive act).
• Bober v. Glaxo Wellcome PLC, 246 F.3d 934 (7th Cir. 2001)
  – Authorised dismissal when labeling is not misleading as a matter of law; here, labeling survived because complaint was implausible.
• Bd. of Educ. of Chicago v. A, C & S, Inc., 131 Ill. 2d 428 (1989)
  – Common-law fraud elements mirrored ICFA; failure on falsity element doomed both.
• Rule 9(b) lineage (Camasta, Cornielsen, Pirelli Armstrong)
  – Underlined judiciary’s interest in deterring reputationally damaging, weak fraud suits.

Legal Reasoning

1. Step 1 – Identify the alleged deception.
   Plaintiff claimed Walmart’s honey was heated/processed, hence not “raw.”
2. Step 2 – Examine factual basis.
   Only evidence: (a) HMF at 22 mg/kg; (b) mannose at 0.06 g/100 g.
3. Step 3 – Assess whether those facts plausibly imply heating/processing.
   • Complaint’s own sources acknowledged multiple benign causes (storage, climate, natural composition).
   • Plaintiff provided no factual allegations narrowing those causes.
   • Therefore inference of fraud was “too speculative.”
4. Step 4 – Incorporation of referenced documents.
   Under Seventh Circuit practice (Geinosky; Zablocki), once plaintiff cites them, their full contents control. They undermined the theory by:
   • Showing 22 mg/kg is below Codex’s 40 mg/kg (or 80 mg/kg in tropics).
   • Highlighting that HMF levels can naturally rise during ten-month storage.
5. Step 5 – Resulting doctrinal statement.
   A fraud complaint premised on laboratory proxies must allege facts that eliminate obvious innocent explanations or provide additional indicators tying the proxy to misconduct.

Impact of the Decision

The opinion reaches beyond honey litigation:

• Heightened Pleading for Scientific Proxy Claims. Plaintiffs relying on lab metrics (e.g., “alkalinity proves adulteration,” “THC potency mislabeling,” “protein spikes in supplements”) must now plead why other scientific or environmental factors did not cause the readings.
• Strategic Drafting Guidance. Lawyers must resist the “copy-and-paste” approach to consumer suits. Boilerplate lab reports or marketing blogposts will be dissected for alternative explanations and internal inconsistencies.
• Encourages Early Disposition. Defendants can invoke Wertymer to nip speculative cases in the bud, conserving judicial and party resources.
• Professional Responsibility Note. The court’s footnote referencing prior admonitions (e.g., Guzman v. Walmart) signals potential Rule 11 exposure for repetitive, weak claims.
• Codex & International Standards. Litigants citing foreign or trade guidelines must show applicability to the claim and provide sound scientific context.

Complex Concepts Simplified

Conclusion

Wertymer v. Walmart is more than another skirmish in the “raw honey wars.” It sharpens the plausibility blade for all consumer-fraud complaints that rest on surrogate testing or indirect scientific inferences. By demanding that plaintiffs plead facts eliminating alternative, innocent causes of laboratory results, the Seventh Circuit shields businesses from speculative litigation while preserving room for well-grounded suits rooted in robust science and concrete allegations. Future litigants—and their counsel—must treat Wertymer as a cautionary beacon: before filing, verify that proxy data necessarily points to deception, or risk swift dismissal and possible sanctions.