The opinion of the court was delivered by: James Robertson United States District Judge
Defendant Yum! Brands, Inc. (parent company of KFC) moves to dismiss the complaint of Arthur Hoyte, M.D., , which alleges that KFC failed to disclose the presence of trans fat in its food and made misleading statements to the public concerning the content of its food. For the reasons set forth below, that motion will be granted.
Trans fat is a "major cause of heart disease [that] should be phased out of the food supply as rapidly as possible,"*fn2 since "the only safe level of trans fat in the diet is zero."*fn3  ¶ 21, 20. Dr. Hoyte alleges that "[a]ll KFC locations in the District of Columbia, both company-owned and franchised, use partially hydrogenated oil, which is very high in trans fat."  ¶¶ 18, 19 (noting that 80% of the trans fat in the American diet comes from partially hydrogenated oil), 22 (listing certain items from KFC's menu and their corresponding trans fat content). KFC's use of partially hydrogenated oil is "unnecessary," because healthier oils are available.  ¶¶ 23, 24, 25. KFC advertises on its website and in its restaurants that it sells the "best food," and that KFC products are part of a nutritionally healthy lifestyle.  ¶ 28. The advertisements do not reveal the use of trans fats.
In 2004 and 2005, aware that the FDA had cautioned against the consumption of trans fat, plaintiff was trying to avoid products containing such fat.  ¶ 33. When he purchased food at the KFC in Northeast Washington, D.C., he was unaware that some of it was prepared with trans fat. KFC did not display any warning or disclaimer informing customers of the presence of trans fat in its food.  ¶¶ 31, 32.
These are the essential allegations of plaintiff's suit, filed June 13, 2006 in the Superior Court of the District of Columbia, claiming violations of the D.C. Code §§ 28:2-314 and the common law implied warranty of merchantability (Count I), violations of the D.C. Consumer Protection Procedures Act, D.C. Code § 28-3904 and 28-3905(K)(1) (Count II), and negligent misrepresentation (Count III). Plaintiff seeks economic damages, disgorgement of monies derived from unlawful trade practices, injunctive relief,*fn4 attorneys' fees and costs. Defendant removed the case to this court on June 21, 2006.
In its motion to dismiss, defendant Yum!/KFC (hereinafter, "KFC") invokes Rules 12(b)(6) and 9(b)*fn5 of the Federal Rules of Civil Procedure. A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A court should not dismiss for failure to state a claim unless the defendant can show beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Warren v. District of Columbia, 353 F.3d 36, 37 (D.C. Cir. 2004). In resolving a Rule 12(b)(6) motion, the court must treat the complaint's factual allegations, including mixed questions of law and fact, as true, drawing all reasonable inferences in the plaintiff's favor. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C. Cir. 2003), cert. denied, 540 U.S. 1149 (2004). However, the court may reject "inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint," or "legal conclusions cast in the form of factual allegations." Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
Count I: The Implied Warranty of Merchantability
Dr. Hoyte's first claim is that KFC committed a breach of both the statutory and common law implied warranty of merchantability.  ¶¶ 35-41. As defendant rightly notes, it is the court's responsibility to determine what duties, if any, defendant owes plaintiff in the circumstances presented.  at 10, citing Settles v. Redstone Dev. Corp., 797 A.2d 692, 695 (D.C. 2002).
It has been true since as early as 1886 that "goods sold by a manufacturer, in the absence of an express contract, are impliedly warranted as merchantable, or as suited to the known purpose of the buyer." De Witt v. Berry, 134 U.S. 306, 313 (1890), citing Dushane v. Benedict, 120 U.S. 630, 636 (1886). The D.C. Code codifies this long-standing doctrine in § 28:2-101 et. seq., which recognizes an "implied warranty that food sold and consumed on a premises or elsewhere is 'fit for the ordinary purposes for which such goods are used.'" Hochberg v. O'Donnell's Restaurant, Inc., 272 A.2d 846 (D.C. 1971), quoting D.C. Code § 28:2-314. Even before the implied warranty of merchantability was incorporated into the D.C. Code, the implied warranty of merchantability applied to the sale of food in the District, requiring packaged and restaurant food to be "wholesome and fit for human consumption, and contain no foreign or deleterious substance." Id., citing Cushing v. Rodman, 82 F.2d 864 (D.C. Cir. 1936); Benjamin v. Hot Shoppes, Inc., D.C. Mun. App., 185 A.2d 512 (1962); Lohse v. Coffey, D.C. Mun. App., 32 A.2d 258 (1943).
Plaintiff acknowledges that in order to state a claim of breach of the implied warranty of merchantability, the plaintiff must demonstrate that the offensive "object" or "substance" in the purchased food is not one that a "consumer would reasonably expect to find . . . in the particular type of dish or style of food served." Hochburg, 272 A2d. at 849, quoting Betehia v. Cape Cod Corp., 10 Wis.2d 323, 328 (1960);  at 27. This determination of reasonableness, plaintiff maintains, is a question of fact that should be answered by a jury. While it might be appropriate for this court to find, as a matter of law, that the consumption of fat -- including trans fat -- is indeed within the reasonable expectations of the consumers of fried chicken and French fries prepared in fast food kitchens, it is not necessary for me to reach that question. A more fundamental problem is fatal to Count I -- the absence of any allegation of injury.
Dr. Hoyte does not "allege that the food he ordered was in any way unpalatable or that he suffered any immediate ill effects after he ate his order."  at 27. He claims no emotional harm, pain or suffering. He does mention "economic injuries,"  ¶ 47, but he does not specify what "economic injury" he has suffered, and none is ...