Case 3:20-cv-06533-RS Document 42 Filed 04/23/21 Page 1 of 27
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`BORISON FIRM, LLC.
`Scott C. Borison (State Bar No. 289456)
`scott@borisonfirm.com
`
`
`1900 S. Norfolk St Ste 350
`
`
`San Mateo CA 94403
`
`Telephone: (301) 620-1016
`Facsimile: (301) 620-1018
`
`SHEEHAN & ASSOCIATES, P.C.
`Spencer Sheehan (Pro Hac Vice)
`spencer@spencersheehan.com
`60 Cuttermill Rd Ste 409
`Great Neck, NY 11021
`Telephone: (516) 303-0552
`Facsimile: (516) 234-7800
`Counsel for Plaintiff and the Proposed Class
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`Eugina Harris, individually, and on behalf
`of those similarly situated,
`Plaintiff,
`
`v.
`McDonald’s Corporation,
`Defendant.
`
`
`
`CASE NO. 3:20-cv-06533-RS
`FIRST AMENDED CLASS ACTION
`COMPLAINT
`Demand for Jury Trial
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`CLASS ACTION COMPLAINT
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`Case No. 3:20-cv-06533-RS
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`Case 3:20-cv-06533-RS Document 42 Filed 04/23/21 Page 2 of 27
`
`Plaintiff Eugina Harris (“Plaintiff”), on behalf of herself and others similarly situated
`brings this Class Action Complaint against McDonald’s Corporation (“Defendant” or
`“McDonald’s”), and on the basis of personal knowledge, information and belief, and investigation
`of counsel, allege as follows:
`
`INTRODUCTION
`1.
`Defendant manufactures distributes, markets, labels and sells “soft serve” ice
`cream or reduced fat ice cream purporting to be flavored by real vanilla under their
`“McDonald’s” brand (“Product, ”“Products,” or “Vanilla Soft Serve Ice Cream”).
`2.
`During the Class Period (as defined below), Plaintiff Eugina Harris purchased the
`Products in California.
`
`3.
`McDonald’s falsely and misleadingly markets the Products to consumers as being
`flavored predominantly with real vanilla - derived from vanilla beans - through representations of
`its soft serve ice cream as “Vanilla Cone.”
`
`
`
`
`
`
`4.
`McDonald’s vanilla representations lead a significant number of consumers to
`believe that real vanilla is the primary ingredient that flavors the Products.
`5.
`This belief is consistent not only with the studies referenced herein but also with
`the strict federal regulations concerning vanilla which were passed to protect vanilla consumers
`from being deceived about the ingredients which flavor consumer products.
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`CLASS ACTION COMPLAINT
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`Case 3:20-cv-06533-RS Document 42 Filed 04/23/21 Page 3 of 27
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`6.
`Rather, in stark contrast to Defendant’s representations and reasonable consumers’
`reliance, the Product contains non-vanilla, artificial flavors, not disclosed to consumers and far
`less vanilla than consumers expect.
`7.
`McDonald’s menu boards in its restaurants, drive through displays, self-service
`kiosks, website, conventional and digital advertising, social media marketing and point-of-sale
`displays identify the Product as “Vanilla.”
`8.
`The Product’s representation of “Vanilla” “leads consumers to believe that it is
`flavored primarily with real vanilla.1
`9.
`McDonald’s markets its company as a values based company focused on “quality
`food.”2
`
`10.
`For example, in its most SEC filing, McDonald’s puts a great emphasis on its
`“quality ingredients.” In fact, it is mentioned multiple times as being part of the company’s
`purpose:3
`
`a.
`
`b.
`
`“The safety and quality of our food is a top priority and we are constantly
`innovating to strive to meet and exceed our customers’ expectations. This
`also includes sourcing quality ingredients in responsible ways, supporting
`farming communities and evolving the Happy Meal to make balanced
`meals more accessible to families around the globe.”
`McDonald’s partners with a global network of suppliers and farmers to
`provide quality ingredients and packaging materials. By engaging our
`supply chain, we have greater visibility and together work toward
`commitments that support more sustainable production, so we can continue
`to serve our customers delicious meals they know and love.
`
`
`1 Hallagan and Drake at 54; See also 21 U.S.C. §343(g) (requiring ingredients to be listed with
`“the name of the food specified in the definition and standard”); 21 C.F.R. § 101.4(a)(1)
`(requiring ingredients “be listed by common or usual name”).
`2 https://www.mcdonalds.com/us/en-us/about-us/values-in-action.html
`3 McDonald’s 2021 Notice of Annual Shareholders’ Meeting and Proxy Statement, “Our Impact
`and Brand Purpose” at 10.
`https://www.sec.gov/Archives/edgar/data/63908/000120677421001039/mcd_courtesy-pdf.pdf
`(filed April 8, 2021).
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`Case 3:20-cv-06533-RS Document 42 Filed 04/23/21 Page 4 of 27
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`This message is a core theme disseminated by Defendant’s executives to the
`
`11.
`public.
`12.
`For example, Alistair Macrow, McDonald’s Global Chief Marketing Officer
`makes “quality ingredients” his mantra which he projects to the public at almost every
`opportunity:
`
`a.
`
`“We want people to leave our restaurants feeling good about eating our
`food – not just because it’s delicious, but also we source quality
`ingredients and give customers options.”4
`“…to the farmers who supply quality ingredients for our menu.”5
`b.
`13.
`Rather than delivering quality, authentic vanilla ice cream in each Product,
`
`Defendant delivers an artificially boosted flavor purporting to be primarily sourced from real
`vanilla.
`14.
`By deceptively representing the source of its vanilla flavoring, Defendant is able to
`generate a greater number of sales and produce a larger profit than it would if it didn’t make its
`deceptive vanilla representations.
`15.
`Plaintiff seeks damages and an injunction to stop Defendant’s false and misleading
`marketing practices with regards to its Vanilla Soft Serve Ice Cream.
`
`
`
`4 McDonald’s website, “Food Quality and Sourcing,”
`https://corporate.mcdonalds.com/corpmcd/our-purpose-and-impact/food-quality-and-
`sourcing.html (emphasis added).
`5 Little Black Book News, “Leo Burnett Pays Tribute to the Green Guardians of the Farm in New
`McDonald's Spot,” August 18, 2014, https://www.lbbonline.com/news/leo-burnett-pays-tribute-
`to-the-green-guardians-of-the-farm-in-new-mcdonalds-spot (emphasis added).
`- 4-
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`Case 3:20-cv-06533-RS Document 42 Filed 04/23/21 Page 5 of 27
`
`JURISDICTION
`16.
`This Court has jurisdiction over this action under the Class Action Fairness Act,
`28 U.S.C. § 1332(d).
`17.
`The amount in controversy exceeds the sum or value of $5,000,000, exclusive of
`interest and costs, and the parties are citizens of different states.
`18.
`Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because a substantial
`part of the events and misrepresentations giving rise to Plaintiff's claims occurred in this District,
`and Defendant (1) is authorized to conduct business in this District and has intentionally availed
`itself of the laws and markets of this District through the promotion, marketing, distribution and
`sale of its products here, (2) resides in this District, and (3) is subject to personal jurisdiction in
`
`this District.
`
`PARTIES
`19.
`Plaintiff Eugina Harris is a resident of the City of Oakland and County of
`Alameda, California. During the Class Period (as defined below), in California, she purchased
`the Product for personal, family, or household consumption and/or use regularly and consistently
`during at least 2019 and 2020.
`20.
`Plaintiff Eugina Harris purchased the Product at McDonald’s locations including
`but not necessarily limited to the location at 6300 E 14th St, Oakland, CA 94621.
`21.
`Plaintiff would not have purchased - or would have paid less for - the Product had
`Plaintiff realized that much of the vanilla flavor came from non-vanilla plant sources.
`22.
`Defendant advertised the Product as “Vanilla.”
`23.
`Plaintiff relied upon these representations when she purchased the Product. She
`believed that the vanilla flavor in the Product was primarily sourced from real vanilla (i.e.
`primarily from vanilla beans and the vanilla plant). Plaintiff would not have purchased the
`Product had Plaintiff understood the true flavor composition of the Product. Plaintiff would
`purchase the Product again in the future if the Product were remedied to reflect Defendant’s
`labeling and marketing claims for it.
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`24.
`Defendant McDonald’s Corporation is a Delaware corporation, with its principal
`place of business in Chicago, Illinois.
`
`
`
`
`BACKGROUND
`
`25.
`According to recent industry reports, “Food companies are dropping artificial
`flavors, coloring, preservatives and other additives with scary names and focusing more on
`natural, wholesome and fresh ingredients.”6
`26.
`Nielsen has reported that 62% of consumers say they try to avoid artificial
`flavors.7
`
`27.
`New Hope Network concluded that “71% of consumers today are avoiding
`artificial flavors.”8
`28.
`Label Insight determined that 76% of consumers avoid artificial flavors.9
`29.
`Consumers are seeking products which obtain their flavor from their
`characterizing food ingredients, i.e., strawberry shortcake which contains sufficient strawberries
`to provide flavor to the food or flavor obtained from the characterizing food ingredient, i.e.,
`strawberry flavor from strawberries as opposed to strawberry flavor synthesized from cherries.10
`30.
`As “natural, organic and better-for-you trends proliferate, demand has flourished
`for naturally sourced vanilla.”11
`31. Manufacturers have responded, “by transitioning from artificial to natural
`ingredients,” including “natural vanilla ingredients.”12
`
`
`
`6 Jeff Daniels, Why your favorite foods may be getting new recipes, CNBC, September 19, 2016
`7 Nielsen, Reaching For Real Ingredients: Avoiding The Artificial, Sept. 6, 2016.
`8 Alex Smolokoff, Natural color and flavor trends in food and beverage, Natural Products Insider,
`Oct. 11, 2019.
`9 Thea Bourianne, Exploring today’s top ingredient trends and how they fit into our health-
`conscious world, March 26-28, 2018.
`10 David Andrews, Synthetic ingredients in Natural Flavors and Natural Flavors in Artificial
`flavors, Environmental Working Group (EWG).
`11 Amanda Del Buono, Suppliers utilize cost-effective vanilla ingredient solutions, Beverage
`Industry (last updated Oct. 14, 2016).
`12 Id.
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`Case 3:20-cv-06533-RS Document 42 Filed 04/23/21 Page 7 of 27
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`SPECIFIC MISREPRESENTATIONS,
`MATERIAL OMISSIONS, AND DECEPTIVE ACTS
`
`Misleading and Deceptive Flavor Designation and Product Name
`
`
`Vanilla Marketplace
`A.
`32.
`Global climate disruptions resulting in natural disasters befalling the primary
`vanilla producing country of Madagascar, have caused vanilla shortages.
`33.
`This disruption in available vanilla has caused companies to cut corners when it
`comes to their premium vanilla ice cream products.
`
`34.
`The approximate cost of using real vanilla to flavor an ice cream cone is 7 cents
`per unit. In contrast, a similar amount of synthetic vanilla costs about 1.5 cents per unit.
`35.
`Because reasonable consumers do not follow the commodities markets – nor are
`they expected to follow – they are unaware of the shifting price of vanilla and cost-cutting
`company shortcuts which provide an inferior vanilla experience for customers.13
`36.
`As one vanilla expert summarizes:14
`
`The problem of adulteration of vanilla with vanillin and a few other components has
`always plagued the vanilla market and the pricing. After 35 years of work and study
`of natural products, I am convinced that we are not yet able to do a better job than
`Nature. There is really nothing like the pure unadulterated vanilla extract or various
`folded and concentrated vanilla extracts that are available. It is always a shame when
`users try to stretch the use and performance of vanilla with the adulteration by
`vanillin or other mixtures to make an economic price point or performance point.
`When this happens, it affects the overall market by introducing unfair competitive
`pricing that can drive honest growers and manufacturers of vanilla extracts to their
`breaking points, or at worst put them out of business permanently. The supply is
`then cut, the prices go up and the demand for good quality extracts goes down, thus
`creating a spiral downwards in supply and upwards in pricing of good quality
`material.
`
`
`
`13 Further, even if a reasonable consumer was required to have an intimate knowledge of the
`vanilla market, the reasonable consumer would have no idea what amount of real vanilla is
`required to flavor a vanilla cone.
`14Buccellato, Felix, Daphna Havkin-Frenkel & Faith C. Belanger (Eds.). (2019). Handbook of
`Vanilla Science and Technology (2nd Ed) (p. 373). Wiley (emphasis added).
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`Case 3:20-cv-06533-RS Document 42 Filed 04/23/21 Page 8 of 27
`
`Regulatory Guidance
`B.
`37.
`Because of the high demand for real vanilla and the likelihood of confusion
`concerning vanilla representations made by companies, vanilla is one of the most regulated
`flavors in the marketplace.
`38.
`These regulations provide guidance on consumer expectations for “vanilla”
`products and the necessary boundaries required to ensure that products are properly represented to
`satisfy these expectations.
`39.
`Vanilla flavors are the only flavorings subject to a standard of identity. See 21
`C.F.R. § 169.
`40.
`These standards were promulgated to end practices which “deprive the consumer
`
`of value the product is represented to have, and for which the consumer pays,” such as “the
`widespread and exceedingly serious adulteration of vanilla extracts that are now labeled ‘pure.’”15
`41.
`Industry leaders supported vanilla standards to “insure, for the protection of both
`the consumers and our industry, that all vanilla products are correctly labeled and meet at least
`minimum standards.”16
`42.
`To correctly label foods with a characterizing flavor of vanilla, Hallagan and
`Drake stress two key points:
`1.
`“The federal standards of identity for vanilla flavorings at 21 CFR Section
`
`169 and ice cream at 21 CFR Section 135, and their labeling requirements,
`
`take precedence over the general flavor and food labeling regulations at 21
`
`CFR Section 101.22;” and
`
`2.
`
`“The federal standard of identity for vanilla flavorings at 21 CFR Section
`
`169 applies to both the flavorings sold directly to consumers and to food
`
`manufacturers [for use in finished food products].”17
`
`
`
`
`15 Letter from McCormick & Company Inc. to HEW Secretary, January 15, 1960.
`16 Letter from McCormick & Company Inc. to HEW Secretary, January 15, 1960.
`17 Hallagan at 35.
`
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`Case 3:20-cv-06533-RS Document 42 Filed 04/23/21 Page 9 of 27
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`43.
`Ice cream flavor regulations distinguish between three categories, with Category 1
`referring to ice cream which gets its flavor only from its natural characterizing flavor – i.e.,
`vanilla from vanilla beans, strawberry from strawberries, etc. See 21 C.F.R. §135.110(f)(2)(i) (“If
`the food contains no artificial flavor, the name on the principal display panel or panels of the label
`shall be accompanied by the common or usual name of the characterizing flavor, e.g., ‘vanilla’”).
`44.
`All flavors from sources other than a natural characterizing flavor are considered
`“artificial flavors” in the context of ice cream, according to the International Dairy Foods
`Association (“IDFA”) (describing artificial flavors as “derived from natural sources other than the
`characterizing flavor and simulate, resemble or reinforce the characterizing flavor”).18
`45.
`According to John B. Hallagan and Joanna Drake, the former and current legal
`
`advisors for The Flavor and Extract Manufacturers Association of the United States (“FEMA”):
`
`When consumers purchase ice cream labeled as “vanilla ice cream” they expect it
`to be flavored with vanilla flavoring derived from vanilla beans unless labeled
`otherwise. As we shall see, this expectation is codified in two U.S. federal standards
`of identity, one for vanilla flavorings and one for ice cream.19 (emphasis added).
`
`
`
`46.
`The IDFA, Hallagan and Drake and FEMA point out that the regulations for
`vanilla products and ice cream “are supplemented by a formal FDA Advisory Opinion, and a
`collection of FDA-issued regulatory correspondence,” which support this conclusion.20
`47.
`That the ice cream regulations are meant to be read “together with the vanilla
`standard of identity means that the characterizing flavor for this [Category 1] ice cream must be
`provided only by vanilla extract complying with the standard at 21 CFR Section 169.175, or
`another standardized vanilla flavoring derived solely from vanilla beans.”21
`
`
`18 IDFA, Ice Cream & Frozen Desserts Labeling Manual, 2019 Ed.
`19 John B. Hallagan and Joanna Drake, The Flavor and Extract Manufacturers Association of the
`United States, “Labeling Vanilla Flavorings and Vanilla-Flavored Foods in the U.S.,” Perfumer &
`Flavorist, Apr. 25, 2018.
`20 Hallagan, endnote 7, FDA, 1983. Letter dated 9 February 1983 from FDA to FEMA
`constituting an FDA Advisory Opinion (21 C.F.R. § 135.110(f) “makes no provision for any
`natural flavors other than natural characterizing flavors” which means the “FDA must treat all
`natural flavors that simulate the characterizing flavor as artificial flavors when deciding what
`name should appear on the principal display panel.”).
`21 Hallagan at p. 11.
`
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`Case 3:20-cv-06533-RS Document 42 Filed 04/23/21 Page 10 of 27
`
` McDonald’s “Quality Food”
`C.
`48. McDonald’s represents the company as a values based restaurant that provides
`“quality food” at a value price.22
`49.
`The company states on its website: “We are helping to create a future of quality,
`secure and sustainable food because how our food is produced and where it comes from matter
`to our customers, communities and the environment. This includes sourcing quality
`ingredients in responsible ways and supporting farming communities.23
`50.
`Alistair Macrow, McDonald’s Global Chief Marketing Officer describes the
`company’s focus:24
`
`We want people to leave our restaurants feeling good about eating our food –
`
`not just because it’s delicious, but also we source quality ingredients and give
`customers options. We will continue to invest in strong partnerships with suppliers
`and farmers around the world and deliver on customer expectations by evolving our
`menu and offering balanced, wholesome options the whole family can enjoy.
`51.
`This focus is not new. Rather, it was Ray Kroc’s original vision “to build a
`restaurant system known for consistently high-quality food and uniformity in its preparation
`methods” which would “enable the company to consistently offer its customers safe, high-quality
`food at an affordable price.”25
`52.
`Studies show that these marketing efforts have been successful because loyal
`McDonald’s customers tend to have “higher perceptions of health and nutrition and quality of
`McDonald’s food than they [do] of value perceptions.”26
`
`
`
`22 McDonald’s Website, “Values in Action,” available at https://www.mcdonalds.com/us/en-
`us/about-us/values-in-action.html.
`23 McDonald’s website, “Food Quality & Sourcing.” available at
`https://corporate.mcdonalds.com/corpmcd/our-purpose-and-impact/food-quality-and-
`sourcing.html (emphasis added).
`24 Id.
`25 Purdue University Center for Food and Agricultural Business, “Case Study: McDonald’s
`Corporation” (2011) at 4, 9. Prepared by McDonald’s Corporation and Kenneth McCorckle of
`Wells Fargo Bank. https://agribusiness.purdue.edu/wp-content/uploads/2019/08/mcdonalds-
`case-study-2011.pdf
`26 Adams, Claire, "Mcdonald’s Users’ Perceptions Of Health And Nutrition, Quality, And Value
`On Visit Frequency" (2018). Electronic Theses and Dissertations. 594.
`https://egrove.olemiss.edu/etd/594
`
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`Case 3:20-cv-06533-RS Document 42 Filed 04/23/21 Page 11 of 27
`
` McDonald’s “Vanilla”
`D.
`53.
`Defendant knows that customers seek high quality, authentic vanilla ice cream
`because it emphasizes this on its website:
`
`
`
`54. McDonald’s emphasizes that its vanilla ice cream is devoid of artificial flavors,
`colors, and preservatives.
`
`55.
`In other words, its vanilla flavor only comes from real vanilla rather than synthetic
`non-vanilla ingredients.
`56. McDonald’s representations, through its menu boards, kiosks, website and
`advertising of the Products – “Vanilla Soft Serve” and “Vanilla Cone,” and all other dessert
`products which incorporate the vanilla soft serve ice cream – are false, misleading and unlawful
`because the vanilla soft serve ice cream is flavored by artificial vanilla in the form of vanillin, and
`contains less real vanilla than consumers expect.
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`Case 3:20-cv-06533-RS Document 42 Filed 04/23/21 Page 12 of 27
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`57.
`Several reasons support the allegations that McDonald’s Vanilla Soft Serve Ice
`Cream is not flavored primarily by real vanilla ingredients.
`58.
`First, the use of non-vanilla flavoring is revealed through the ingredient list
`designation of “Natural Flavor” instead of an exclusively vanilla ingredient like “vanilla extract”
`or “vanilla flavoring.” See 21 C.F.R. § 169.175 (b)(1) (“The specified name of the food is ‘Vanilla
`extract’ or ‘Extract of vanilla’”); see also 21 U.S.C. §343(g) (requiring ingredients to be listed with
`“the name of the food specified in the definition and standard”).
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`Case 3:20-cv-06533-RS Document 42 Filed 04/23/21 Page 13 of 27
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`Ingredients: Milk, Sugar, Cream, Corn Syrup, Natural Flavor, Mono and Diglycerides,
`Cellulose Gum, Guar Gum, Carrageenan, Vitamin A Palmitate.
`59.
`In vanilla ice cream, the designation of an ingredient as “natural flavor” means it is
`a combination of vanilla and non-vanilla flavor.
`60.
`Second, this conclusion is confirmed by gas chromatography-mass spectrometry
`(“GC-MS”) analysis, a method that laboratories typically rely on to authenticate whether a
`product contains vanilla from vanilla beans or synthetic compounds designed to mimic the taste
`provided by vanilla.
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`Case 3:20-cv-06533-RS Document 42 Filed 04/23/21 Page 14 of 27
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`61.
`GC-MS analysis can detect the presence of the numerous trace compounds which
`contribute to the flavor profile from vanilla.
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`Case 3:20-cv-06533-RS Document 42 Filed 04/23/21 Page 15 of 27
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`62.
`The analysis reveals between 10 and 12 other chemicals that are common to
`vanilla but are also part of a standard compounded vanilla flavor, such as maltol, guiaicol,
`vanillyl ethel ether, cyclotene acetol, acetoin, furfural and benzaldehyde.
`63.
`The results show the Product contains “an abnormal excess of vanillin (MS Scan #
`1019, 49.765 PPM) relative to the profile of minor components in a vanilla preparation,” which is
`a strong indicator it contains vanillin from non-vanilla sources.27
`64.
`In a sample of vanilla extract subjected to the same GC-MS analysis, the ratio of
`vanillin to p-hydroxybenzoic acid is 270 (vanillin, MS Scan # 759, 77.4301 divided by p-
`hydroxybenzoic acid, MS Scan # 832, 0.2867).
`65.
`P-hydroxybenzoic acid is one of the compounds used to evaluate the authenticity
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`of vanilla ingredients.28
`66.
`If all vanillin in the Vanilla Soft Serve came from vanilla beans, it would be
`expected to contain p-hydroxybenzoic acid at 0.184 PPM.
`67.
`Vanillyl ethyl ether is a benzyl ether which is closely associated with vanilla
`authenticity.
`68.
`The ratio of vanillin to vanillyl ethyl ether in the Product is 1105.89 (vanillin, MS
`Scan # 1019, 49.765 PPM divided by vanillyl ethel ether, MS Scan # 1043, 0.045).
`69.
`In the same sample of vanilla extract, the ratio of vanillin to vanillyl ethyl ether is
`27.2 (vanillin, MS Scan # 759, 77.4301 divided by vanillyl ethel ether, MS Scan # 809, 2.8421).
`70.
`The non-detection of p-hydroxybenzoic acid and the disparate ratio of vanillin to
`vanillyl ethel ether in the Product means the Product contains less real vanilla and contains added
`vanillin.
`71.
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`This added vanillin is from non-vanilla sources, such as rice bran or wood pulp.
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`27 Arun K. Sinha et al., “A comprehensive review on vanilla flavor: extraction, isolation and
`quantification of vanillin and other constituents,” International Journal of Food Sciences and
`Nutrition 59.4 (2008): 299-326.
`28 K. Gassenmeier and E. Binggeli, Vanilla Bean Quality – A Flavour Industry View, Expression
`of Multidisciplinary Flavour Science, Givaudan Schweiz AG, Ueberlandstrasse 138, CH-8600
`Switzerland.
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`Case 3:20-cv-06533-RS Document 42 Filed 04/23/21 Page 16 of 27
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`72.
`This type of vanillin, when made through a natural process like fermentation, can
`be labeled a “natural flavor” only when used in foods where the characterizing flavor is not
`vanilla.
`73.
`Defendant’s Product, “containing vanillin derived from a non-vanilla bean source
`needs to be labeled as artificially flavored [because] the food is characterized/labeled as vanilla
`flavored.”29
`74.
`The Vanilla Soft Serve “contains natural flavor compounds that simulate vanilla
`but are not derived from vanilla beans,” and are therefore considered artificial flavors.30
`75.
`The GC-MS analysis also reveals propylene glycol (MS Scan # 266, 4.953 PPM)
`in relatively significant levels.
`76.
`Propylene glycol is commonly used as a solvent carrier for a flavor.
`77.
`In contrast, the solvent carrier for vanilla extract is ethyl alcohol.
`78.
`The presence of propylene glycol supports the allegations that the Vanilla Soft
`Serve contains non-vanilla flavors.
`79.
`The representations for the Vanilla Soft Serve Ice Cream are misleading because
`this gives consumers the impression that all of the vanilla taste is from vanilla beans, when this is
`not true and misleads consumers.
`80.
`Representing the Product as “Vanilla” instead of “Artificial Vanilla” or
`“Artificially Flavored Vanilla” is deceptive and misleading to consumers. See 21 C.F.R.
`§135.110(f)(2)(iii) (“If the food contains both a natural characterizing flavor and an artificial
`flavor simulating it, and if the artificial flavor predominates”).
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`Reliance and Economic Injury
`81. When purchasing the Product, Plaintiff sought a product with a materially greater
`amount of vanilla than it actually contained.
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`29 Hallagan and Drake.
`30 Hallagan and Drake, p. 48.
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`Case 3:20-cv-06533-RS Document 42 Filed 04/23/21 Page 17 of 27
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`82. When purchasing the Product, Plaintiff sought a product that was natural, in that
`its vanilla flavor was provided primarily by vanilla beans from the vanilla plant.
`83.
`Plaintiff read and relied on Defendant’s false and misleading product name, menu
`board, kiosk description and misleading claims in its labeling and advertising of the product.
`84.
`Plaintiff saw and relied on statements on the Product’s advertising, which
`misleadingly reference only “vanilla” even though much, if not all, of the vanilla flavoring comes
`from non-vanilla sources.
`85.
`The vanilla representations made by Defendant throughout its marketing efforts -
`including but not limited to its menu boards, kiosks, website and advertising - however, are
`misleading, and had the capacity, tendency, and likelihood to confuse or confound Ms. Harris and
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`other consumers acting reasonably (including the putative Class) because, as described in detail
`herein, the products are not sourced primarily from real vanilla but instead their flavor comes
`from the inclusion of synthetic, artificial flavor “boosting” ingredients.
`86. Ms. Harris is not a nutritionist or food scientist, but rather a lay consumer who did
`not have the specialized knowledge that Defendant had regarding the ingredients present in the
`Products. At the time of purchase, Ms. Harris was unaware of the amount of the high
`concentration of artificial vanilla present in the Product and the minimal - at best - amount of real
`vanilla.
`87. Ms. Harris acted reasonably in relying on Defendant’s marketing, which
`Defendant intentionally placed on the menu board and kiosks - as well as all other marketing
`efforts concerning the Products - with the intent to induce average consumers into purchasing the
`Products.
`88. Ms. Harris would not have purchased the Products if she knew that the
`representations were false and misleading in that the Products were not primarily flavored by real
`vanilla.
`89.
`The Product costs more than similar products without misleading representations,
`and would have cost less absent the misleading vanilla representations. If Defendant were
`enjoined from making the misleading claims, the market demand and price for its Product would
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`Case 3:20-cv-06533-RS Document 42 Filed 04/23/21 Page 18 of 27
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`drop, as it has been artificially and fraudulently inflated due to Defendant’s use of deceptive
`ingredient representations.
`90. Ms. Harris paid more for the Product, and would only have been willing to pay
`less, or unwilling to purchase them at all, absent the misleading representations complained of
`herein.
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`91.
`For these reasons, the Product was worth less than what Ms. Harris paid for it, and
`may have been worth nothing at all.
`92.
`Instead of receiving products that were primarily flavored with real vanilla, the
`products Ms. Harris received were not primarily flavored with real vanilla, but rather their flavor
`comes from non-vanilla, artificial ingredients.
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`93. Ms. Harris lost money as a result of Defendant’s deceptive claims and practices in