Case 1:22-cv-06913 Document 1 Filed 11/04/22 Page 1 of 28
`
`
`
`BURSOR & FISHER, P.A.
`L. Timothy Fisher (State Bar No. 191626)
`Sean L. Litteral (State Bar No. 331985)
`1990 North California Blvd., Suite 940
`Walnut Creek, CA 94596
`Telephone: (925) 300-4455
`Facsimile: (925) 407-2700
`E-mail: ltfisher@bursor.com
`
` slitteral@bursor.com
`
`BURSOR & FISHER, P.A.
`Jonathan L. Wolloch (pro hac vice forthcoming)
`701 Brickell Ave., Suite 1420
`Miami, FL 33131
`Telephone: (305) 330-5512
`Facsimile: (305) 676-9006
`Email: jwolloch@bursor.com
`
`Attorneys for Plaintiff
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`
`
`
`
`Case No.
`
`
`CLASS ACTION COMPLAINT
`
`
`JURY TRIAL DEMANDED
`
`
`
`ROBIN HUMPHREY, individually and on
`behalf of all others similarly situated,
`
`
`
`
`THE J.M. SMUCKER COMPANY,
`
`
`
`v.
`
`Plaintiff,
`
` Defendant.
`
`
`
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 1:22-cv-06913 Document 1 Filed 11/04/22 Page 2 of 28
`
`
`
`Plaintiff Robin Humphrey (“Plaintiff”) brings this action on behalf of herself, and all others
`similarly situated against The J.M. Smucker Company (“Defendant” or “Smucker”). Plaintiff makes
`the following allegations pursuant to the investigation of her counsel and based upon information
`and belief, except as to the allegations specifically pertaining to herself, which are based on personal
`knowledge.
`
`NATURE OF THE ACTION
`1.
`Plaintiff brings this Class action lawsuit on behalf of herself and similarly situated
`consumers (“Class Members”) who purchased 9Lives-branded pet food,1 Kibbles ‘n Bits-branded
`pet food,2 and Meow Mix-branded pet food3 (the “Products”), which are misleading labeled as
`healthful despite containing titanium dioxide (“TiO2” or the “Additive”). Worse, the packaging of
`Defendant’s products—which is essential and integral to delivering the food to consuming pets—
`also contain per-and polyfluoroalkyl substances (“PFAS”), which are synthetical chemicals that pose
`undue health risks further rendering Defendant’s healthful representations false and misleading.
`2.
`Defendant has known of the health problems posed by TiO2 since at least February
`2014 when big players in the food market publicly announced they would no longer use the additive
`in products due to health concerns. These announcements have been widely reported on by several
`news outlets, including Time Magazine, CNN, The Guardian, and the Los Angeles Times.
`3.
`Major retailers of pet food, including retailers that at one time offered brands by
`Defendant, also announced that they would not sell pet food containing TiO2.
`4.
`The industry announcements were informed by scientific research concluding that
`TiO2 is unhealthy and unsafe for consumption.
`5.
`Similarly, in light of the growing scientific research, several nations have banned
`TiO2 because of its toxicity. For example, in 2019, TiO2 was banned in France for human
`
`1 Those products include, but are not limited to, all flavors of 9 Lives: Daily Essentials, Indoor
`Complete, Seafood & Poultry Favorites, Plus Care.
`2 Those products include, but are not limited, all flavors of Kibbles ‘n Bits: Original, Bacon and
`Steak, Bistro, Mini Bits, Complete and Balanced, and Homestyle.
`3 Those products include, but are not limited to, all flavors of Meow Mix: Original Choice, Tender
`Centers, Irresistible, Indoor Health, Seafood Medley, Bistro Recipes, and Ocean Explosion,
`amongst others.
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`1
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 1:22-cv-06913 Document 1 Filed 11/04/22 Page 3 of 28
`
`
`
`consumption. In May 2021, the European Food Safety Authority (“EFSA”) released its report on
`the health concerns associated with TiO2, determining that TiO2 could not be considered safe for
`consumption for humans or animals.
`6.
`Professor Maged Younes, Chair of EFSA’s expert Panel on Food Additives and
`Flavourings (“FAF”) underscored these findings, stating that: “Taking into account all available
`scientific studies and data, the Panel concluded that titanium dioxide can no longer be considered
`safe as a food additive. A critical element in reaching this conclusion is that we could not exclude
`genotoxicity concerns after consumption of titanium dioxide particles.”
`7.
`Building on EFSA’s research, the European Commission (“EC”) announced that it
`too would adopt a ban on the use of TiO2 as a food additive. The EC additionally announced it
`would adopt a ban on the use of TiO2 as a food additive for all animal species.
`8.
`Similarly, Defendant has long known of the health problems posed by PFAS, which
`persist and accumulate and are harmful even at very low levels. PFAS have been shown to have a
`number of toxicological effects in laboratory studies as PFAS exposure raises a host of health effects,
`including but not limited to various cancers, liver damage, and immunotoxic effects.
`9.
`Defendant employs food scientists who focus on food safety and nutrition specifically
`for pet food products, including tracking industry developments concerning ingredients and
`additives. Defendant also employs packaging engineers, scientists, and managers who focus on pet
`food products, including assessing suitability for direct food contact applications.
`10.
`Defendant nonetheless consistently makes various misrepresentations concerning the
`Products to convince consumers that the Products are healthful for consumption and do not expose
`pets to heightened risk of a host of health effects from consuming Defendant’s Products.
`11.
`Defendant knew or should have known that titanium dioxide is unhealthy and raises
`health risks from various sources, including but not limited to information provided by certain of its
`major retailers and its food scientists.
`12.
`Nonetheless Defendant sells pet food containing TiO2 and PFAS, abusing the
`Public’s trust and failing to inform consumers of the implications of consuming the toxins. Instead,
`Defendant relies on the ingredient list, which is provided in tightly woven, miniscule block print on
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`2
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 1:22-cv-06913 Document 1 Filed 11/04/22 Page 4 of 28
`
`
`
`the back of the Products, which consumers are unlikely to notice. Defendant nowhere informs
`consumers that the Products also contain PFAS.
`13.
`The inadequate labeling means that consumers who purchase Defendant’s Products
`are unaware that they are at heightened risk of a host of health effects stemming from TiO2 and
`PFAS.
`
`14.
`Based on Defendant’s omissions, a reasonable consumer would expect that the
`Products are healthful and can be purchased and consumed as marketed and sold. However, the
`Products are not healthful and pose a significant health risk. Yet, neither before nor at the time of
`purchase does Defendant notify consumers like Plaintiff that the Products are not healthful, pose
`health risks, and should otherwise be approached with caution.
`15.
`Accordingly, Plaintiff brings her claims against Defendant individually and on behalf
`of a class of all others similarly situated for (1) violation of California’s Unfair Competition Law,
`Cal. Bus. & Prof. Code § 17200, et seq.; (2) violation of the Consumers Legal Remedies Act, Cal.
`Civ. Code § 1750, et seq.; (3) violation of California’s False Advertising Law, Cal. Bus. & Prof.
`Code § 17200, et seq.; (4) Fraud; (5) Constructive Fraud; (6) Fraudulent Inducement; (7) Fraudulent
`Omission or Concealment; (8) Fraudulent Misrepresentation; (9) Negligent Misrepresentation; and
`(10) Quasi-Contract / Unjust Enrichment.
`
`PARTIES
`16.
`Plaintiff Robin Humphrey is a natural person and citizen of California who resides in
`Clearlake, California. Ms. Humphrey has purchased the Products numerous times from her local
`Walmart, including as recently as July 2022. Prior to her purchase, Ms. Keene reviewed the labeling,
`packaging, and marketing materials of the products and saw the false and misleading claims that,
`among other things, the Products are healthful for animal consumption. Ms. Humphrey understood
`these claims to be representations and warranties by Defendant, that the Products are free from
`harmful ingredients. Ms. Humphrey reasonably relied on these representations and warranties in
`deciding to purchase the Products, and these representations were part of the basis of the bargain in
`that she would not have purchased the Products or would not have purchased them on the same terms,
`if the true facts about their contents had been known. As a direct result of Defendant’s material
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`3
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 1:22-cv-06913 Document 1 Filed 11/04/22 Page 5 of 28
`
`
`
`misrepresentations and omissions, Ms. Humphrey suffered, and continues to suffer, economic
`injuries.
`17. Ms. Humphrey remains interested in purchasing pet food made by Defendant that is
`safe for consumption. However, Plaintiff Humphrey is unable to determine if the Products are
`actually healthful for consumption. Plaintiff understands that the composition of the Products may
`change over time. But so long as Defendant may market the Products as healthful for consumption
`when the Products are not healthful and pose health risks, then when presented with false or
`misleading information when shopping, she will be unable to make informed decisions about
`whether to purchase Defendant’s Products and will be unable to evaluate the different prices between
`Defendant’s Products and competitor’s Products. Plaintiff is further likely to be repeatedly misled
`by Defendant’s conduct, unless and until Defendant is compelled to ensure that Products marketed
`and labeled as healthful for consumption, are, in fact, healthful for consumption.
`18.
`Defendant The J.M. Smucker Co., d/b/a 9Lives, Kibbles ‘n Bits, and Meow Mix, is a
`corporation with its headquarters located at 4400 Easton Commons Way, Suite 125, Columbus, Ohio
`43219. Relevant to Plaintiff’s claim herein, Defendant is a leading manufacturer, packager, and
`distributor of pet food. Defendant has done business throughout California and the United States at
`all times during the Class Period. At all relevant times, Defendant has advertised, marketed,
`manufactured, distributed, and/or sold pet food, including the Products at issue, to consumers in and
`throughout California and the United States. At all relevant times, Defendant formulated, directed,
`controlled, had the authority to control, and/or participated in the acts and practices set forth in this
`Complaint.
`19.
`Plaintiff reserves the right to amend this Complaint and add different products and
`additional defendants, including without limitation and officer, director, employee, supplier, or
`distributor of Defendant who has knowingly and willfully aided, abetted, and/or conspired in the
`false and deceptive conduct alleged herein.
`JURISDICTION AND VENUE
`20.
`This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(d)(2)(A), as
`amended by the Class Action Fairness Act of 2005 (“CAFA”), because this case is a class action
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`4
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 1:22-cv-06913 Document 1 Filed 11/04/22 Page 6 of 28
`
`
`
`where the aggregate claims of all members of the proposed class are in excess of $5,000,000.00,
`exclusive of interest and costs, there are over 100 members of the putative class, and Plaintiff, as
`well as most members of the proposed class, are citizens of different states than Defendant. This
`Court also has supplemental jurisdiction over state law claims pursuant to 28 U.S.C. § 1367.
`21.
`This Court has personal jurisdiction over Defendant because Defendant purposefully
`availed itself of this forum by conducting substantial business within California such that Defendant
`has significant, continuous, and pervasive contacts with the State of California.
`22.
`Venue is proper in this District pursuant to 28 U.S.C. § 1391 because Defendant does
`substantial business in this District and a substantial part of the events giving rise to Plaintiff’s claims
`took place within this District and Plaintiff saw and heard Defendant’s advertisements in this District.
`FACTUAL ALLEGATIONS
`The Presence of TiO2 Renders Healthful Representations Misleading
`A.
`23.
`Titanium dioxide (“TiO2”) is an inorganic compound that is easily powdered and pure
`white in color. Because of this property, it is relied upon heavily as a pigment in a variety of
`applications including paint, sunscreen, and food coloring. When used as a food colorant it is known
`as E171.
`24.
`The food industry used TiO2 ubiquitously for over 30 years, but in the last decade
`research began to call its fitness for consumption into serious question, and responsible food makers
`have reacted accordingly.
`25.
`As early as 2014, big players in the food and confections market began to alert the
`public of their intention to remove TiO2 from its confectionary products for consumption. For
`example, in response to one company’s announcement that it would remove TiO2 from its products,
`Jaydee Hanson, Senior Policy Analyst at Center for Food Safety, stated that “Studies have shown
`that the human health risks associated with ingesting nanoparticles of many common food additives
`far outweigh any utility for producers. There are plenty of non-toxic alternatives available and we
`urge [] others to commit to not using any engineered nanomaterials in human and animal food
`products.”
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`5
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 1:22-cv-06913 Document 1 Filed 11/04/22 Page 7 of 28
`
`
`
`26.
`The reason for eliminating titanium dioxide is simple: research has shown that TiO2
`can pass through biological membranes, circulate through the body, and enter cells. These properties
`mean it can have seriously detrimental health effects including DNA and chromosomal damage,
`organ damage, inflammation, brain damage, genital malformations, lesions in the liver and kidneys,
`and cell neurosis. Titanium dioxide also builds up in the body’s intestinal tract. Ordinarily, the
`intestinal track is where nutrients are absorbed into the bloodstream. However, titanium dioxide
`cannot be absorbed. When this occurs, the body’s M-Cells absorb these particles and bring them to
`the innate immune system. Over time, the titanium dioxide particles are incorporated by the innate
`immune system cells where they will remain without being degraded or dissolved.
`27.
`In 2019, the French government responded to these troubling findings by banning all
`foods containing titanium dioxide. In October 2020, the European Parliament removed titanium
`dioxide from the list of food additives authorized by the European Union for human consumption.
`European researchers studying titanium dioxide noted that the long half-lives of titanium dioxide
`nanoparticles created the potential for the particles to accumulate inside human organs and tissue.
`European researchers also determined that titanium dioxide nanoparticles could cause DNA strands
`to break, leading to chromosomal damage.
`28.
`These health concerns and government actions are not limited to human foods. In
`November 2018, Petco—North America’s second-largest pet supplies chain—announced its
`intention to pull all dog and cat food and treats that contain harmful artificial ingredients, including
`TiO2. This decision, to remove harmful foods and treat from store shelves and ecommerce, was
`completed by May 2019. Petco explained its decision reflects veterinarian recommendations and
`consumer preferences. Petco cited a survey that shows a majority of veterinarians agree that pet
`owners should actively seek out foods with no artificial flavors, no artificial colors, and no artificial
`preservatives. The same survey showed that a noteworthy 87% of pet owners believe it is important
`to their pets’ health and well-being to serve food to their pets that is free of harmful ingredients.
`29.
`Titanium dioxide creates risks due to genotoxicity, the ability of a substance to
`damage DNA, the genetic material of cells. When orally ingested, TiO2 particles can accumulate in
`the body.
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`6
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 1:22-cv-06913 Document 1 Filed 11/04/22 Page 8 of 28
`
`
`
`30. More recently, in 2021, the European Food Safety Authority (“EFSA”) announced
`that TiO2 can no longer be considered safe for consumers or animals when used as an additive in
`animal feed. The EFSA specifically raised concerns about genotoxicity.
`31.
`Accordingly, in November 2021, the European Commission banned the use of TiO2
`as an additive in animal food.
`B.
`The Presence of PFAS Renders Healthful Representations Misleading
`32.
`Research by the Environmental Working Group (“EWG”) showed that Defendant’s
`Products contain heightened levels of organic fluorine indicative of PFAS (measure in parts per
`million), as well as various named PFAS (measured in parts per billion).
`33.
`EWG commissioned an independent laboratory to conduct total fluorine tests, as well
`as tests for specific PFAS. EWG tested various pet food products, including two of Defendant’s
`Products.4 A total fluorine test presents a scientifically valid method of testing for PFAS used by
`both the food industry and researchers.
`34.
`All PFAS contain organic fluorine and there are few other sources of the compound.
`Accordingly, the packaging industry has adopted total fluorine tests to assess a material’s total PFAS
`content. For example, the Biodegradable Products Institute (“BPI”) has adopted 100ppm as a
`threshold. Amounts over 100 ppm are considered indicative of intentional use of PFAS.
`35.
`Scientists have also acknowledged that total fluorine test represent a scientifically
`valid method of testing for PFAS. Indeed, Rainier Lohmann, Director of University of Rhode
`Island’s Lohmann Lab has explained that “[i]f a product is showing really high fluorine levels,
`companies really can’t claim they didn’t use PFAS.”
`36.
`The laboratory results showed that Meow Mix Tender Centers contained 630 ppm
`and named PFAS in the amount of 5 ppb and that Kibbles ‘n Bits Bacon & Steak contained 590 ppm
`and named PFAS in the amount of 14.3 ppb.
`
`4 Defendant relies on many of the same suppliers for each of the Products’ packaging and has not
`substantially or meaningfully altered its suppliers for the Products’ packaging for several years. In
`addition, Defendant has not substantially or meaningfully altered the components comprising the
`Products’ packaging within the past several years. Because the packaging for the Products is
`comprised of similar and unaltered components, some has tested for PFAS it is highly likely that the
`packaging of each of Defendant’s Products are also comprised of certain named PFAS.
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`7
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 1:22-cv-06913 Document 1 Filed 11/04/22 Page 9 of 28
`
`
`
`37.
`Unlike the products offered by Defendant’s competitors, Defendant’s Products
`contained the highest levels of total fluorine indicating PFAS. With the exception of a single product,
`each of the other competitor products tested by the laboratory showed amounts of fluorine below the
`threshold for intentional use of fluorine, which is 100 ppm.
`38.
`Researchers have established with certainty that chemicals migrate from food contact
`articles onto food. Scientists have studies this phenomenon for decades and describe it as
`“migration.” Because PFAS are incredibly mobile, they readily migrate into food.
`39.
`Scientists are incredibly concerned about the health risks raised by PFAS. All PFAS
`share a concerning structural feature, specifically the presence of perfluoralkyl moieties, which
`results in their shared resistance to metabolic degradation. As PFAS persist and mix with other
`substances, there is an increased exposure for health effects.
`40.
`Indeed, animal studies have found that PFAS can cause, among other serious health
`effects, damage to the liver and immune system, various cancers, such as kidney and testicular
`concerns, and increased cholesterol levels.
`41.
`Research shows that there is a reduced latency period for pets and such health risks
`may materialize in a matter of a few years given pets’ shorter lifespan.
`C.
`Defendant’s Misrepresentations and Omissions are Actionable
`42.
`Defendant has endangered consumers’ pets, exposing them to TiO2 and PFAS, which
`Defendant knows carries significant health concerns. Despite the fact that the Products contain the
`harmful ingredient, Defendant represents that the Products are healthful for animals.
`43.
`On the 9Lives cat food packaging, Defendant represents that it has been “caring for
`cats since 1959.” Specifically, Defendant represents that the Product provides “Daily Essentials”
`with “balanced nourishment in each tasty bite!” Defendant represents that the pet food will build
`“strong muscles,” enable “healthy heart and vision,” and produce “healthy skin & coat.”
`
`
`
`
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`8
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 1:22-cv-06913 Document 1 Filed 11/04/22 Page 10 of 28
`
`
`
`
`
`
`
`
`
`
`
`
`
`44.
`On the Kibbles ‘n Bits dog food packaging, Defendant represents that the food is
`“100% Complete and Balanced Nutrition for Adult Dogs.” Defendant ensures that there is “balanced
`nourishment in every bite!”
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`45.
`On the Meow Mix cat food packaging, Defendant represents that it is intended for
`cats’ “indoor health.” Defendant further represents that the Product is “100% complete and balanced
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`9
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 1:22-cv-06913 Document 1 Filed 11/04/22 Page 11 of 28
`
`
`
`nutrition for adult cats,” it has “all essential vitamins & minerals” and it “helps maintain healthy
`weight.”
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`46.
`Each of these statements represent pure and partial omissions as well as
`misrepresentations regarding the Product’s healthfulness to pets. As a result, Plaintiff and the Class
`were injured by the full purchase price of the Products because the Products are worthless, as they
`are marketed as healthful for animal consumption.
`47.
`Plaintiff and Class Members bargained for products that are healthful for consumption
`and were deprived of the basis of their bargain when Defendant sold them Products in packaging
`containing substances heightening the risks of serious negative health effects.
`48.
`No reasonable consumer would expect that the Products marketed as healthful for
`animal consumption would pose a risk to their pets’ health, safety, and well-being, or that they would
`contain TiO2 or PFAS, both of which are linked to harmful health effects. Accordingly, Plaintiff
`and Class Members suffered economic injuries as a result of purchasing the Products.
`49. Moreover, because these facts relate to a critical safety-related deficiency in the
`Products, Defendant was under a continuous duty to disclose to Plaintiff and Class Members the true
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`10
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 1:22-cv-06913 Document 1 Filed 11/04/22 Page 12 of 28
`
`
`
`standard, quality, and grade of the Products and to disclose that the Products contained substances
`known to have adverse health effects. Defendant also had a duty to disclose because of its exclusive
`and/or superior knowledge concerning the true nature of the Products. Nonetheless, Defendant
`concealed and misrepresented this information, as discussed herein.
`50.
`Although Defendant is in the best position to know what content it placed on its
`packaging during the relevant timeframe, and the knowledge that Defendant had regarding the
`presence of TiO2 and PFAS that rendered its representations misleading, to the extent necessary,
`Plaintiff satisfies the requirements of Rule 9(b) by alleging the following facts with particularity:
`51. WHO: Defendant made material misrepresentations and omissions of fact about the
`Products through its labeling which shows that the Products are healthful. These representations
`constitute omitted material information regarding harmful chemicals.
`52. WHAT: Defendant’s conduct here was, and continues to be, fraudulent because it
`omitted and concealed that the Products contain TiO2 and PFAS—which are widely known to have
`significant health repercussions. Thus, Defendant’s conduct deceived Plaintiff and Class Members
`into believing that the Products are healthful for animal consumption when they are not. Defendant
`knew or should have known that this information is material to reasonable consumers, including
`Plaintiff and Class Members in making their purchasing decisions, yet they continued to pervasively
`market the Product in this manner in the U.S. market to convince consumers the Products are
`healthful for pets.
`53. WHEN: Defendant made material misrepresentations and omissions during the
`putative class periods, including prior to and at the time Plaintiff and Class Members purchased the
`Products, despite its knowledge that the Products’ packaging contained TiO2 and PFAS, harmful
`substances with known adverse health effects.
`54. WHERE: Defendant’s marketing message was uniform and pervasive, carried
`through material misrepresentations and omissions on the labeling of the Product’s packaging,
`website, and through marketing materials.
`55. HOW: Defendant made material misrepresentations and omissions of fact regarding
`the Products, including the presence of TiO2 and PFAS in the Products.
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`11
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 1:22-cv-06913 Document 1 Filed 11/04/22 Page 13 of 28
`
`
`
`56. WHY: Defendant made the material misrepresentations and omissions detailed
`herein for the express purpose of inducing Plaintiff, Class Members, and all reasonable consumers
`to purchase and/or pay for the Products, the effect of which was that Defendant profited by selling
`the Products to hundreds of thousands of consumers.
`INJURY: Plaintiff and Class Members purchased, paid a premium (up to the full-
`57.
`price), or otherwise paid more for the Products when they otherwise would not have absent
`Defendant’s misrepresentations and omissions.
`CLASS ALLEGATIONS
`Class Definition. Plaintiff brings this action on behalf of a class of similarly situated
`58.
`individuals, defined as all persons in the United States who, within the applicable statute of
`limitations period, up to and including the date of final judgement in this action, purchased any of
`Defendant’s Products at issue (the “Class”).
`(a) California Subclass. Plaintiff Humphrey also seeks to represent a subclass of all
`Class members who within the applicable statutes of limitations period, up to and
`including the date of final judgement in this action, purchased any of the Products
`at issue in California (the “California Subclass”).
`59.
`Excluded from the Class and Subclasses are persons who made such purchase for
`purpose of resale, Defendant and any entities in which Defendant has a controlling interest,
`Defendant’s agents and employees, the judge to whom this action is assigned, and members of the
`judge’s staff, and the judge’s immediate family.
`60.
`Plaintiff reserves the right to amend the definition of the Class and Subclass if
`discovery or further investigation reveals that the Class or Subclass should be expanded or otherwise
`modified.
`61.
`Numerosity. Members of the Class and Subclass are so numerous that their
`individual joinder herein is impracticable. On information and belief, members of the Class and
`Subclass number in the millions. The precise number of Class members and their identities are
`unknown to Plaintiff at this time but may be determined though discovery. Class members may be
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`12
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 1:22-cv-06913 Document 1 Filed 11/04/22 Page 14 of 28
`
`
`
`notified of the pendency of this action by mail and/or publications through the distribution records
`of Defendant and third-party retailers and vendors.
`62.
`Commonality and Predominance. Common questions of law and fact exist as to all
`Class members and predominate over questions affecting only individual Class members. Common
`legal and factual questions include but are not limited to: whether Defendant warranted the Products
`as “Safe for Animal Consumption”; whether the Products contain Titanium Dioxide; whether
`Defendant breached these warranties; and whether Defendant committed the statutory and common
`law violations alleged against them herein by doing so.
`63.
`Typicality. Plaintiff Humphrey’s claims are typical of the claims of the Class in that
`Plaintiff purchased one of Defendant’s Products in reliance on the presentations and warranties
`described above and suffered a loss as a result of that purchase.
`64.
`Adequacy. Plaintiff Humphrey is an adequate representative of the Class and
`respective Subclass because her interest does not conflict with the interests of the Class and Subclass
`members she seeks to represent, she has retained competent counsel experienced in prosecuting class
`actions, and they intend to prosecute this action vigorously. The interests of the Class and Subclass
`members will be fairly and adequately protected by Plaintiff and her counsel.
`65.
`Superiority. The class mechanism is superior to other available means for the fair
`and efficient adjudication of the claims of Class members. Individually, the Class member may lack
`the resources to undergo the burden and expense of individual prosecution of the complex and
`extensive litigation necessary to establish Defendant’s liability. Individualized litigation increases
`the delay and expense of all parties and multiplies the burden on the judicial system presented by the
`complex legal and factual issues of the case. Individualized litigation also presents a potential for
`inconsistent or contradictory judgments. In contrast, the class action device presents far fewer
`management difficulties and provides the benefits of single adjudication, economy of scale, and
`comprehensive supervision by a single court on the issue of Defendant’s liability. Class treatment
`of the liability issue will ensure that all claims and claimants are before this Court for consistent
`adjudication of liability issues.
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`13
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 1:22-cv-06913 Document 1 Filed 11/04/22 Page 15 of 28
`
`
`
`66.
`Defendant has acted or failed to act on grounds generally applicable to the Class,
`thereby making appropriate final injunctive relief with respect to the Class and Subclass as a whole.
`67. Without a class action, Defendant will continue a course of action that will result in
`further damages to Plaintiff and members of the Class and Subclass and will likely retain the benefits
`of its wrongdoing.
`68.
`Based on the foregoing allegations, Plaintiff’s claims for relief include those set forth
`below.
`
`COUNT I
`(Violation of California’s Unfair Competition Law,
`Ca