Case 8:22-cv-01562-JWH-KES Document 1 Filed 08/23/22 Page 1 of 43 Page ID #:1
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`Adam E. Polk (SBN 273000)
`Jordan Elias (SBN 228731)
`Simon Grille (SBN 294914)
`Jordan Isern (SBN 343159)
`GIRARD SHARP LLP
`601 California Street, Suite 1400
`San Francisco, CA 94108
`Telephone: (415) 981-4800
`apolk@girardsharp.com
`jelias@girardsharp.com
`sgrille@girardsharp.com
`jisern@girardsharp.com
`
`Paige M. Tomaselli (SBN 237737)
`Dylan D. Grimes (SBN 302981)
`GRIME LAW LLP
`730 Arizona Avenue
`Santa Monica, CA 90401
`Telephone: (310) 747-5095
`ptomaselli@grimelaw.com
`dgrimes@grimelaw.com
`
`Attorneys for Plaintiffs
`
`Gretchen Elsner (pro hac vice forthcoming)
`ELSNER LAW & POLICY, LLC
`314 South Guadalupe Street, Suite 123
`Santa Fe, NM 87501
`Telephone: (505) 303-0980
`gretchen@elsnerlaw.org
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`SOUTHERN DIVISION
`
`Case No. 8:22-CV-01562
`
`CLASS ACTION COMPLAINT
`
`JURY TRIAL DEMANDED
`
`SARA SAFARI, PEYMON
`KHAGHANI, and JASON ROSE, on
`behalf of themselves and all others
`similarly situated, and FARM
`FORWARD, on behalf of the general
`public,
`
`Plaintiffs,
`
`v.
`WHOLE FOODS MARKET, INC., a
`Texas corporation,
`Defendant.
`
`CLASS ACTION COMPLAINT – 1
`
`

`

`Case 8:22-cv-01562-JWH-KES Document 1 Filed 08/23/22 Page 2 of 43 Page ID #:2
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`Plaintiffs Sara Safari, Peymon Khaghani, and Jason Rose (“Consumer Plaintiffs”),
`on behalf of themselves and all others similarly situated, and nonprofit organization
`Plaintiff Farm Forward (collectively, “Plaintiffs”) file this Class Action Complaint against
`Whole Foods Market, Inc. (“Whole Foods”) and allege as follows:
`NATURE OF THE ACTION
`1.
`consumer
`fraud
`action
`concerns Whole Foods’ material
`This
`misrepresentations and omissions about the use of antibiotics in the beef it sells. Whole
`Foods markets its beef with the slogan, “No Antibiotics, Ever” and reinforces this
`promotional message that its beef is antibiotic-free with other similar representations at
`retail stores, in online marketing, and on product packaging. But, as independent testing
`has shown, Whole Foods’ claim that it sells only antibiotic-free beef is false. Plaintiffs
`bring this action to stop Whole Foods’ misleading promotion and sale of beef, including
`the products listed in paragraph 40 below (“Beef Products” or the “Products”), and the
`Consumer Plaintiffs seek to recover damages for themselves and other purchasers of these
`Products in California.
`2.
`Plaintiff Farm Forward—a nonprofit organization seeking to end factory
`farming—recently found that beef sold by Whole Foods contained antibiotic and other
`pharmaceutical residue. The presence of this residue demonstrates the cattle were treated
`with antibiotics or other pharmaceuticals while being raised. Farm Forward seeks
`injunctive relief through this action.
`3. Whole Foods’ internal emails show that its executives rejected the
`opportunity to investigate the accuracy of its “No Antibiotics, Ever” claims, in part
`because “the repercussions for having a positive result were beyond ridiculous[.]”
`Unreceptive to testing cattle in its supply chain, Whole Foods continued promoting its
`beef products as antibiotic-free.
`4.
`Administering routine or subtherapeutic antibiotics to farmed animals creates
`serious health risks. It contributes to the development of antibiotic-resistant bacteria in the
`
`
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`CLASS ACTION COMPLAINT – 2
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`

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`Case 8:22-cv-01562-JWH-KES Document 1 Filed 08/23/22 Page 3 of 43 Page ID #:3
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`animals—bacteria that consumers of the meat eventually ingest.1 Once in the human
`system, these bacteria can cause infections that cannot be treated with existing antibiotics
`because the bacteria is antibiotic-resistant.2
`5.
`Consumers overpaid for and were economically harmed as a result of Whole
`Foods’ misleading promotion of its Beef Products. Whole Foods charges—and
`consumers pay—a substantial price premium for Beef Products based on the claim that
`the cattle that become these Products were not given any antibiotics. For instance, Whole
`Foods charges $31.99 per pound for beef tenderloin steak filet mignon. A traditional
`retailer charges only $24.99 per pound for the same cut of beef. Thus, Whole Foods
`marks up the price of this Beef Product by 28% in connection with its antibiotic-free
`representations. Consumer Plaintiffs would not have purchased Beef Products, or would
`not have paid the prices they did, had they had known the truth that cattle used in the
`Products were raised with antibiotics.
`6.
`Plaintiffs seek an injunction requiring Whole Foods to correct and clarify its
`past and ongoing misrepresentations and omissions, and to remove the misrepresentations
`or, in the alternative, to ensure that Whole Foods’ Beef Products conform with how it
`markets them. Consumer Plaintiffs, on behalf of the Class, further seek to recover their
`overpayments for Beef Products due to Whole Foods’ false advertising.
`PARTIES
`
`A.
`
`Plaintiffs
`
`Sara Safari
`Plaintiff Sara Safari is a citizen and resident of Tustin, California.
`
`7.
`
`
`1 Lisa L. Gill, Is Our Meat Safe to Eat?, 87 Consumer Rep. 31, 36 (2022).
`2 Lesley Stahl, Is overuse of antibiotics on farms worsening the spread of antibiotic-
`resistant bacteria?, CBS News (Jan. 5, 2020), https://www.cbsnews.com/news/is-
`overuse-of-antibiotics-on-farms-worsening-the-spread-of-antibiotic-resistant-bacteria-
`60-minutes-2020-01-05/.
`
`
`
`CLASS ACTION COMPLAINT – 3
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`

`

`Case 8:22-cv-01562-JWH-KES Document 1 Filed 08/23/22 Page 4 of 43 Page ID #:4
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`8.
`Since approximately 2010 and within the applicable limitations period, Ms.
`Safari has purchased Beef Products at Whole Foods on numerous occasions. She mostly
`recently purchased Beef Products from Whole Foods in or around June 2022.
`9. Ms. Safari purchased the Products at Whole Foods’ retail stores, including
`its store located at 2847 Park Avenue in Tustin, California.
`10. Ms. Safari saw and relied on Whole Foods representations concerning its
`Beef Products in-store, on its website, in its listings on Amazon, and on the Products’
`packaging. Ms. Safari saw and relied on Whole Foods’ “No Antibiotics, Ever” and “No
`antibiotics or added growth hormones, ever” slogans prior to purchasing the Beef
`Products.
`11. Ms. Safari purchased the Beef Products at a premium price because, based
`on Whole Foods’ representations, she believed all Whole Foods Beef Products derived
`from cattle raised without antibiotics or pharmaceuticals. Choosing antibiotic-free meat
`is important to Ms. Safari because she does not want to fund or support a farming model
`that uses pharmaceuticals as part of raising the animals in crowded, unsanitary
`conditions. Ms. Safari also does not want to fund or support this farming model because
`it contributes to the rise of antibiotic-resistant bacteria and may leave pharmaceutical
`residue in the meat.
`12. Whole Foods never disclosed to Ms. Safari that the cattle used in its Beef
`Products may be raised with antibiotics or that it does not take the necessary steps to
`ensure that all Beef Products it sells are antibiotic-free.
`13. Had Ms. Safari known that cattle used in Whole Foods Beef Products were
`raised with antibiotics, she would not have purchased the Products or would not have
`paid what she did for them.
`
`Peymon Khaghani
`14. Plaintiff Peymon Khaghani is a citizen and resident of Tustin, California.
`15. Since approximately 2010 and within the applicable limitations period, Mr.
`
`
`
`CLASS ACTION COMPLAINT – 4
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`

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`Case 8:22-cv-01562-JWH-KES Document 1 Filed 08/23/22 Page 5 of 43 Page ID #:5
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`Khaghani has purchased Beef Products at Whole Foods on numerous occasions. He
`mostly recently purchased Beef Products from Whole Foods in or around June 2022.
`16. Mr. Khaghani purchased the Products at Whole Foods’ retail stores,
`including its store located at 2847 Park Avenue in Tustin, California.
`17. Mr. Khaghani saw and relied on Whole Foods representations concerning
`its Beef Products in-store, on its website, in its listings on Amazon, in emails from
`Whole Foods, and on the Products’ packaging. Mr. Khaghani saw and relied on Whole
`Foods’ “No Antibiotics, Ever” and “No antibiotics or added growth hormones, ever”
`slogans prior to purchasing the Beef Products..
`18. Mr. Khaghani purchased the Beef Products at a premium price because,
`based on Whole Foods’ representations, he believed all Whole Foods Beef Products
`derived from cattle raised without antibiotics or pharmaceuticals. Choosing antibiotic-
`free meat is important to Mr. Khaghani because he does not want to fund or support a
`farming model that uses pharmaceuticals as part of raising the animals in crowded,
`unsanitary conditions. Mr. Khaghani also does not want to fund or support this farming
`model because it contributes to the rise of antibiotic-resistant bacteria and may leave
`pharmaceutical residue in the meat.
`19. Whole Foods never disclosed to Mr. Khaghani that the cattle used in its
`Beef Products may be raised with antibiotics or that it does not take the necessary steps
`to ensure that all Beef Products it sells are antibiotic-free.
`20. Had Mr. Khaghani known that cattle used in Whole Foods Beef Products
`were raised with antibiotics, he would not have purchased the Products or would not
`have paid what he did for them.
`
`Jason Rose
`21. Plaintiff Jason Rose is a citizen and resident of Moorpark, California.
`22. Since 2005 and within the applicable limitations period, Mr. Rose has
`purchased Beef Products at Whole Foods on numerous occasions. He most recently
`
`
`
`CLASS ACTION COMPLAINT – 5
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`

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`Case 8:22-cv-01562-JWH-KES Document 1 Filed 08/23/22 Page 6 of 43 Page ID #:6
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`purchased Beef Products from Whole Foods in or around June 2022.
`23. Mr. Rose purchased the Products at Whole Foods’ retail stores, including its
`store located at 740 N. Moorpark Road in Thousand Oaks, California.
`24. Mr. Rose saw and relied on Whole Foods representations concerning its
`Beef Products in-store and on the Products’ packaging. Mr. Rose saw and relied on
`Whole Foods’ “No Antibiotics, Ever” slogan prior to purchasing the Beef Products.
`25. Mr. Rose purchased the Beef Products at a premium price because, based
`on Whole Foods’ representations, he believed all Whole Foods Beef Products derived
`from cattle raised without antibiotics or pharmaceuticals. Choosing antibiotic-free meat
`is important to Mr. Rose because he does not want to fund or support a farming model
`that uses pharmaceuticals as part of raising the animals in crowded, unsanitary
`conditions. Mr. Rose also does not want to fund or support this farming model because it
`contributes to the rise of antibiotic-resistant bacteria and may leave pharmaceutical
`residue in the meat.
`26. Whole Foods never disclosed to Mr. Rose that the cattle used in its Beef
`Products are raised with antibiotics or that it does not take the necessary steps to ensure
`that all Beef Products it sells are antibiotic-free.
`27. Had Mr. Rose known that cattle used in Whole Foods Beef Products were
`raised with antibiotics, he would not have purchased the Products or would not have
`paid what he did for them.
`
`Farm Forward
`28. Plaintiff Farm Forward is a national public interest animal protection
`organization founded in 2007 and recognized by the IRS as a § 501(c)(3) tax-exempt
`entity. Farm Forward’s principal place of business is in Portland, Oregon. It has more
`than 60,000 supporters across the world, with over 33,000 followers on social media.
`29. Farm Forward’s mission is to end factory farming. It has approximately 75
`to 150 supporters and followers in Orange County.
`
`
`
`CLASS ACTION COMPLAINT – 6
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`

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`Case 8:22-cv-01562-JWH-KES Document 1 Filed 08/23/22 Page 7 of 43 Page ID #:7
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`B. Defendant
`30. Defendant Whole Foods Market, Inc. is a corporation organized and
`existing under the laws of the state of Texas. Its principal place of business and
`headquarters is maintained at 550 Bowie Street, in Austin, Texas.
`31. Whole Foods sells the Products in its retail stores throughout California.
`JURISDICTION AND VENUE
`32. This Court has jurisdiction over this lawsuit under the Class Action Fairness
`Act, 28 U.S.C. § 1332, because this is a proposed class action in which: (1) there are at
`least 100 class members; (2) the combined claims of class members exceed $5,000,000,
`exclusive of interest, attorneys’ fees, and costs; and (3) Plaintiffs and Defendant Whole
`Foods are domiciled in different states.
`33. This Court has personal jurisdiction over Whole Foods because the relevant
`transactions with Whole Foods giving rise to Plaintiffs’ claims occurred in California,
`and Whole Foods has sufficient minimum contacts in California to render the exercise of
`jurisdiction by this Court proper. Additionally, the representations and omissions at issue
`were directed to California residents. Many of the relevant representations and
`omissions—and the transactions made based on those representations and omissions—
`occurred in Whole Foods’ California stores, were made directly to California residents
`via online marketing, and involved Beef Products purchases in California.
`34. Venue is proper in this District under 28 U.S.C. § 1391(b) because a
`substantial part of the events or omissions giving rise to the claims occurred in this
`District.
`
`FACTUAL ALLEGATIONS
`A. Consumer Demand for Antibiotic-Free Meat
`35.
`In recent years, transparency about animal welfare and the administration of
`antibiotics to animals has become increasingly important to meat consumers. According
`to a 2018 study by the Food Marketing Institute, “‘[r]aised in the U.S.’ and ‘antibiotic-
`
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`CLASS ACTION COMPLAINT – 7
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`Case 8:22-cv-01562-JWH-KES Document 1 Filed 08/23/22 Page 8 of 43 Page ID #:8
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`free’ are the two most requested items for expanded assortment at the primary meat
`store.”3 The same study found that, at the same time that conventional meat sales had
`decreased, “meat with special production claims, such as organic, grass-fed or antibiotic-
`free, had dollar gains of 25.9 percent and volume growth of 38.3 percent over 2017.4
`Nearly two-thirds of shoppers who have seen a claim of “antibiotic-free,” “hormone-
`free” or “humanely-raised” are more likely to buy the advertised item instead of a
`conventional counterpart.5
`36. The use of antibiotics in animal farming contributes to the development of
`antibiotic-resistant bacteria, which can infect humans.6 Infection can occur in several
`ways,7 but most relevant here, it can happen by consuming or handling meat.8 Giving
`animals antibiotics contributes to the development of antibiotic-resistant bacteria. People
`then ingest the bacteria along with the meat, and the bacteria can cause infections. Many
`of these infections cannot be effectively treated with existing antibiotics because the
`
`
`3 Power of Meat, Food Marketing Institute, 2018, at 5.
`4 Id.
`5 Id. at 5, 48.
`6 See Antibiotic Resistance: Understanding the Connection to Antibiotic Use In Animals
`Raised for Food, Mayoclinic.org, https://www.mayoclinic.org/diseases-
`conditions/infectious-diseases/in-depth/antibiotic-resistance/art-
`20135516#:~:text=cause%20untreatable%20infections.-
`,Antibiotic%20resistance%3A%20Understanding%20the%20connection%20to%20antib
`iotic%20use%20in%20animals,These%20may%20cause%20untreatable%20infections
`(last visited Aug. 9, 2022); Christy Manyi-Loh et al., Antibiotic Use in Agriculture and
`Its Consequential Resistance in Environmental Sources: Potential Public Health
`Implications, 233 Molecules 795, 796 (2018), available at
`https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6017557/.
`7 Gill, supra note 1, at 36 (noting antibiotic-resistant bacteria can also spread through the
`air, water, insects, farmworkers, and soil).
`8 Vangelis Economou, & Panagiota Gousia, Agriculture and Food Animals as a Source
`of Antimicrobial-Resistant Bacteria, 8 Infect Drug Resist 49-61 (2015), available at
`https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4388096/.
`
`
`
`CLASS ACTION COMPLAINT – 8
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`

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`Case 8:22-cv-01562-JWH-KES Document 1 Filed 08/23/22 Page 9 of 43 Page ID #:9
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`bacteria are already antibiotic-resistant.9
`37. The use of antibiotics is also indicative of animal mistreatment. As Farm
`Forward has noted elsewhere, “[d]ue to their poor genetic health and the crowded
`conditions in which they’re confined, animals on factory farms are often given drugs in
`subtherapeutic doses to promote growth and keep them alive in conditions that would
`otherwise stunt their growth and even kill them.”10 Therefore, the use of antibiotics in
`meat goes hand-in-hand with poor animal welfare standards. And animal welfare, too, is
`of increasing importance to meat consumers. According to a 2017 Hartman’s Group
`survey, 71% of respondents agreed that “when making purchasing decisions, it’s
`important the company avoids inhumane treatment of animals,” and one of the top
`animal welfare practices that increase the likelihood of purchases is that the “animals
`[are] not given antibiotics/hormones.”11 In 2018, another survey found that “[t]hree-
`fourths of consumers say that they would be likely to switch to meat, eggs and dairy
`products with labels that guarantee that the products came from farm animals who were
`raised according to higher animal welfare standards. This finding extends across
`demographics, including gender, age, and race.”12 In 2020, a public opinion poll found
`
`
`
`9 Stahl, supra note 2.
`10 Ben Goldsmith, The Drugs Farm Forward Found Hiding in Your Meat, Farm Forward
`(April 13, 2022), https://www.farmforward.com/#!/blog?blogid=the-drugs-farm-
`forward-found-hiding-in-your-meat; see also Stacy Sneeringer et al., Economics of
`Antibiotic Use in U.S. Livestock Production 31–36 (2015), available at
`https://www.ers.usda.gov/webdocs/publications/45485/err-200.pdf?v=0.
`11 Ginger Schleuter, 2017 Study Finds Consumer Familiarity With Sustainability
`Reached All-Time High, Natural Products Insider,
`https://www.naturalproductsinsider.com/sustainability/2017-study-finds-consumer-
`familiarity-sustainability-reached-all-time-high (last visited Aug. 3, 2022).
`12 Lake Research Partners, Results from a Survey of American Consumers, ASPCA,
`https://www.aspca.org/sites/default/files/aspca-
`2018_animal_welfare_labelling_and_consumer_concern_survey.pdf (last visited Aug. 9,
`2022).
`
`
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`CLASS ACTION COMPLAINT – 9
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`Case 8:22-cv-01562-JWH-KES Document 1 Filed 08/23/22 Page 10 of 43 Page ID #:10
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`that “[t]he vast majority (89%) of Americans are concerned about industrial animal
`agriculture, citing animal welfare, worker safety or public health risks as a concern.”13
`38. Buying antibiotic-free meat and meat derived from appropriately treated
`animals is sufficiently important to American consumers that they are willing to pay a
`premium price for it. One study, for example, concluded that the price premium is 20%
`or more for meat raised without antibiotics than conventional counterparts.14
`39. Beginning in 2002, Whole Foods launched a promotional campaign
`marketing its beef as having “No Antibiotics, Ever.”15 The reality is starkly different:
`Whole Foods sold Beef Products without taking effective measures to ensure that they
`came from cattle raised without antibiotics.16
`B. Whole Foods’ Beef Products
`40. Whole Foods’ Beef Products—all of which are marketed with the prominent
`slogans “[n]o antibiotics or added growth hormones, ever” or “No Antibiotics, Ever”—
`include, but are not limited to, the following:17
`•
`Beef Ribeye Steak
`•
`Boneless Beef New York Strip Steak
`
`
`13 Email from Bob Meadow & Meryl O’Bryan, Lake Rsch. Partners (Feb. 1, 2019),
`available at
`https://www.aspca.org/sites/default/files/impact_on_public_attitudes_toward_industrial_
`animal_agriculture-final-111120.pdf.
`14 Lance Price et al., Policy Reforms for Antibiotic Use Claims In Livestock, 376 Science
`130 (Supp. 2022), available at https://www.science.org/doi/10.1126/science.abj1823.
`15 See Whole Foods Market Quality Standards: Select Milestones, Whole Foods Market,
`https://d39w7f4ix9f5s9.cloudfront.net/ea/2d/171463694419b8abc050017e4255/wfm-
`timeline-4.pdf (last visited July 12, 2022).
`16 See Andrew deCoriolis, Farm Forward Finds Drugs in Certified Meat at Whole
`Foods, Farm Forward (Apr. 4, 2022), https://www.farmforward.com/#!/blog/farm-
`forward-finds-drugs-in-certified-meat-at-whole-foods/farm-forward.
`17 See Beef, Whole Foods Market,
`https://www.wholefoodsmarket.com/products/meat/beef, (last visited July 12, 2022).
`
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`CLASS ACTION COMPLAINT – 10
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`Beef Tenderloin Steak (Filet Mignon)
`Ground Beef 90% Lean / 10% Fat
`Boneless Beef Chuck Roast
`Ground Beef 80% Lean / 20% Fat
`Beef Top Sirloin Steak
`Lean Beef Chuck Stew Meat
`Bone-In Beef Short Ribs
`Boneless Ribeye Steak
`Organic Ground Beef 85% Lean / 15% Fat
`Beef Flank Steak
`Organic Boneless Beef Ribeye Steak
`Beef Sirloin Flap Steak
`Beef Tri Tip Roast
`Bone In Flanken Style Beef Short Ribs
`Beef Porterhouse Steak
`Packaged Sliced Lunchmeat, Bologna – Beef Uncured
`Plain Roast Beef
`Bone-In Beef Ribeye Steak
`Organic Beef Bones
`Boneless Beef Chuck Steak
`Eel River Organic Ground Beef 85% Lean/15% Fat
`Country Natural Beef Ground Beef
`Eel River Organic Beef Organic Grass-fed Ground Beef 93/7
`Country Natural Beef Ground Beef 80% Lean/ 20% Fat
`Honest Dogs with Pasture-Raised Beef
`Herb Crusted Roast Beef
`Rao’s Meatballs & Sauce
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`CLASS ACTION COMPLAINT – 11
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`Case 8:22-cv-01562-JWH-KES Document 1 Filed 08/23/22 Page 12 of 43 Page ID #:12
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`•
`•
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`Eel River Organic Beef Ribeye Steak Bnls Retail Grs Organic S4
`365 by Whole Foods Market Packaged Sliced Lunchmeat, Bologna –
`Beef Uncured
`•
`Beef Oxtail
`•
`365 by Whole Foods Market Sliced Roast Beef
`•
`Diestel Turkey Ranch Beef Pastrami
`•
`Diestel Turkey Ranch Seasoned Uncured Beef Pastrami
`• Wellshire Farms Beef Bologna
`•
`Diestel Turkey Ranch Roast Beef
`• Wild Planet Organic No Salt Added Shredded Beef Pouch
`•
`Organic Meat Co. Organic Burgers
`•
`Country Natural Beef Ground Beef 90% Lean / 10% Fat
`•
`Applegate Organics the Great Organic Uncured Beef Hot Dog
`•
`Panorama Organic Grass-Fed & Finished Ground Beef
`41. Whole Foods sells and has sold, during the applicable statute of limitations,
`its Beef Products in California. The Products are available for purchase at Whole Foods
`stores in California and in most other states.
`42. Whole Foods markets and advertises its Products in California and
`nationwide. It reaches consumers through, among other marketing channels, in-store
`signage, television advertising, print advertising, email marketing, and online marketing
`including on Google, Facebook, YouTube, Twitter, Amazon Prime, and its own website
`and blog.
`
`
`
`CLASS ACTION COMPLAINT – 12
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`Case 8:22-cv-01562-JWH-KES Document 1 Filed 08/23/22 Page 13 of 43 Page ID #:13
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`C. Whole Foods’ “No Antibiotics, Ever” Advertising Misleadingly
`Communicates That Its Beef Products Come from Cattle Raised
`Without Antibiotics or Other Pharmaceuticals
`43. Whole Foods has had a formal policy of “[n]o antibiotics ever and animal
`welfare standards in [its] meat department” since 2002. 18 Since 1981, no “antibiotics
`[were] allowed for [its] meat department.”19
`44. Whole Foods promotes “No Antibiotics, Ever” through a widespread
`campaign in stores and online shopping outlets, as well as on its website, blog,
`packaging, and online and television advertisements. “No Antibiotics, Ever” is
`prominently displayed in Whole Foods stores throughout California. “No Antibiotics,
`Ever” appears, for example, on in-store signage above or near Whole Foods meat
`departments as well as on the packaging for certain Products and napkins given out to
`customers:
`
`
`18 See Whole Foods Market Quality Standards: Select Milestones, supra note 15.
`19 See id.
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`CLASS ACTION COMPLAINT – 13
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`Case 8:22-cv-01562-JWH-KES Document 1 Filed 08/23/22 Page 14 of 43 Page ID #:14
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`45. A similar slogan appears on Whole Foods’ Amazon listings. As shown
`below, next to each Beef Product on the Amazon website, the prospective purchaser
`sees: “No added growth hormones or antibiotics, ever.”
`
`46. Similarly, on its own website, Whole Foods states that a “baseline
`standard[]” for the meat it sells is “[n]o antibiotics ever. If an animal needs antibiotic
`
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`CLASS ACTION COMPLAINT – 14
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`Case 8:22-cv-01562-JWH-KES Document 1 Filed 08/23/22 Page 15 of 43 Page ID #:15
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`treatment, it is separated from those bought by [its] meat department.”20
`47. On its blog, Whole Foods promotes “No Antibiotics, Ever” in its meat with
`posts entitled, for instance, “Our Meat: No Antibiotics Ever[,]” “Our Meat: No
`Antibiotics, Ever[,]” “What Makes Our Meat Different[,]” and “Whole Foods Market:
`no antibiotics in meat departments[.]”21 These blog posts specifically mention Whole
`Foods’ Beef Products. For example, the “Our Meat: No Antibiotics Ever” post depicts
`cattle underneath the emphatic caption, “At Whole Foods Market: No Antibiotics EVER
`is our standard[,]” and proceeds to tout “the best-tasting beef, pork and poultry you’ll
`find in a grocery store and no antibiotics, EVER!”22
`
`
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`20 See Meat Department Quality Standards, Whole Foods Market,
`https://www.wholefoodsmarket.com/quality-standards/meat-standards, (last visited July
`12, 2022).
`21 See A.C. Gallo, Our Meat: No Antibiotics, Ever, Whole Foods Market (Jun. 25, 2012),
`https://www.wholefoodsmarket.com/tips-and-ideas/archive/our-meat-no-antibiotics-
`ever-0; Liz Fry, Our Meat: No Antibiotics, Ever, Whole Foods Market (Apr. 29, 2015),
`https://www.wholefoodsmarket.com/tips-and-ideas/archive/our-meat-no-antibiotics-
`ever; Theo Weening, What Makes Our Meat Different, Whole Foods Market (Feb. 10,
`2011), https://www.wholefoodsmarket.com/tips-and-ideas/archive/what-makes-our-
`meat-different; Whole Foods Market: no antibiotics in meat departments, Whole Foods
`Market (Apr. 18, 2011), https://media.wholefoodsmarket.com/whole-foods-market-no-
`antibiotics-in-meat-departments.
`22 See Gallo, supra note 21 (emphasis in original).
`
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`CLASS ACTION COMPLAINT – 15
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`Case 8:22-cv-01562-JWH-KES Document 1 Filed 08/23/22 Page 16 of 43 Page ID #:16
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`48. Whole Foods’ “No Antibiotics, Ever” promotional campaign also appears
`in television and online video advertisements. For instance, in one television
`advertisement, Whole Foods prominently displays imagery of beef and cattle and its “No
`Antibiotics, Ever” slogan, while the viewer hears a rhyming slogan: “[a]t Whole Foods
`
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`CLASS ACTION COMPLAINT – 16
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`Case 8:22-cv-01562-JWH-KES Document 1 Filed 08/23/22 Page 17 of 43 Page ID #:17
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`Market, we raise our meat right with show-stopping taste in every bite.”23
`
`
`49. Whole Foods’ dissemination of “No Antibiotics, Ever” and related
`advertisements gives reasonable consumers the false impression that the Beef Products
`were raised without antibiotics.
`50. Consumers understand antibiotic-free labeling to mean that the cattle used
`in the meat were raised without antibiotics or other pharmaceuticals. In a 2018
`Consumer Reports study of 1,014 Americans, “when given a list of criteria for a label
`claim referencing ‘no antibiotics’ on meat or poultry,” over three-quarters said “no
`antibiotics” should mean “no antibiotics were administered to a healthy animal” and
`two-thirds said it should mean “no antibiotics were administered to the animal under any
`circumstances.”24
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`23 Whole Foods Market TV Spot, ‘Where it Starts,’ ispot.tv (Aug. 17, 2020),
`https://www.ispot.tv/ad/nxX8/whole-foods-market-where-it-starts.
`24 Consumer Reports Survey Group, Natural and Antibiotics Labels Survey 8 (2018),
`available at https://advocacy.consumerreports.org/wp-content/uploads/2018/10/2018-
`Natural-and-Antibiotics-Labels-Survey-Public-Report-1.pdf.
`
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`CLASS ACTION COMPLAINT – 17
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`Case 8:22-cv-01562-JWH-KES Document 1 Filed 08/23/22 Page 18 of 43 Page ID #:18
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`D. Whole Foods’ “Animal Welfare Certified” Representation on Beef
`Product Packaging Reinforces Its “No Antibiotics, Ever” Promotional
`Campaign
`51. Whole Foods also represents that its Beef Products are “Animal Welfare
`Certified” on the Products themselves, as at the bottom of the following ribeye steak
`label:25
`
`52.
`“Animal welfare certified” is a label developed by the Global Animal
`Partnership (“GAP”), a standards-setting group for farmed animals. While GAP
`recognizes different tiers of certification,26 any GAP certification is supposed to mean
`the animals were “raised without the use of antibiotics[.]”27 Given this standard and the
`common understanding of “animal welfare,” Whole Foods’ “Animal Welfare Certified”
`
`
`25 Meat Department Quality Standards, supra note 20.
`26 See id.
`27 See Global Animal Partnership Homepage, https://globalanimalpartnership.org/ (last
`visited July 12, 2022).
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`CLASS ACTION COMPLAINT – 18
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`Case 8:22-cv-01562-JWH-KES Document 1 Filed 08/23/22 Page 19 of 43 Page ID #:19
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`label reinforces to reasonable consumers that the Beef Product was raised with higher
`animal welfare standards, without antibiotics or other pharmaceuticals.
`53.
`In approximately 2007, Whole Foods’ CEO formed GAP. Farm Forward’s
`Board Chair28 joined GAP’s founding Board of Directors, and Farm Forward
`representatives continued to serve on GAP’s Board until 2020. During that decade, Farm
`Forward worked with GAP, and by extension Whole Foods, in an effort to improve
`animal welfare standards through multi-level standards development, standards
`application, and standards verification across the meat supply chain.
`54. Whole Foods was integral to creating GAP and its standards: Whole Foods
`employees provided staff support to GAP, and Whole Foods employees served on
`GAP’s Board. Whole Foods thus influenced the GAP standards that would be used to
`certify meat sold by Whole Foods. Whole Foods maintains close control over GAP to
`this day: GAP’s executive director is Whole Foods’ Executive Leader of Meat and
`Poultry.
`55. GAP developed a six-tier rating system (1, 2, 3, 4, 5 and 5+ ratings), with a
`“1” rating denoting “No Cages, No Crates, No Crowding” and each step up from there
`denoting additional animal welfare measures. Products certified to meet GAP standards
`are often marketed as “Animal Welfare Certified”—bra