Case 3:21-cv-02437-RS Document 24 Filed 07/09/21 Page 1 of 13
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`BURSOR & FISHER, P.A.
`L. Timothy Fisher (State Bar No. 191626)
`1990 North California Boulevard, Suite 940
`Walnut Creek, CA 94596
`Telephone: (925) 300-4455
`Facsimile: (925) 407-2700
`E-Mail: ltfisher@bursor.com
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`AARON CLARKE and MICHELLE DEVERA,
`individually and on behalf of all others similarly
`situated,
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`
`
`v.
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`
`THE KRAFT HEINZ COMPANY,
`
` Defendant.
`
`
`
`Plaintiffs,
`
`
`Case No. 3:21-cv-02437-RS
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`FIRST AMENDED CLASS ACTION
`COMPLAINT
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`JURY TRIAL DEMANDED
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`FIRST AMENDED CLASS ACTION COMPLAINT
`CASE NO. 3:21-CV-02437-RS
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`Case 3:21-cv-02437-RS Document 24 Filed 07/09/21 Page 2 of 13
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`Plaintiffs Aaron Clarke and Michelle deVera (“Plaintiffs”) bring this action on behalf of
`themselves and all others similarly situated against Defendant The Kraft Heinz Company (“Kraft”
`or “Defendant”) for making, marketing, and distributing its Kraft® Macaroni & Cheese products
`(hereinafter, the “Products”). Plaintiffs make the following allegations pursuant to the
`investigation of their counsel and based upon information and belief, except as to the allegations
`specifically pertaining to themselves, which are based on personal knowledge.
`NATURE OF ACTION
`1.
`This is a class action lawsuit concerning the presence of harmful chemicals known
`as ortho-phthalates (“phthalates”) in Defendant’s popular Macaroni & Cheese products (the
`“Products”). For years, Defendant has been aware that its Products contain phthalates but has
`refused to take steps to remove these chemicals from the Products. Instead, Defendant has chosen
`to prioritize profits over the safety of the consuming public.
`2.
`Plaintiffs bring claims individually and on behalf of a class of all other similarly
`situated California purchasers of the Products for breach of implied warranty, fraudulent, and
`unjust enrichment.
`
`PARTIES
`3.
`Plaintiff Aaron Clarke is, and at all times relevant to this action has been, a resident
`of San Francisco, California. Within the last four months, Mr. Clarke purchased Kraft Macaroni &
`Cheese from a Safeway store located in San Francisco, California. Had Defendant disclosed on the
`label that the Product contained phthalates, and the harms that phthalates can cause, Mr. Clarke
`would have been aware of those facts and would not have purchased the products, or at the very
`least, would have paid significantly less for them. After learning of the presence of phthalates in
`the Product, Mr. Clarke stopped purchasing the Product. However, Mr. Clarke regularly visits
`stores where Defendant’s products are sold and remains interested in purchasing safe macaroni and
`cheese products. He would consider purchasing Defendant’s Product in the future if Defendant
`removed the phthalates.
`4.
`Plaintiff Michelle deVera, is, and at all times relevant to this action has been, a
`resident of Fremont, California. Within the last six months, Ms. deVera purchased Kraft Macaroni
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`FIRST AMENDED CLASS ACTION COMPLAINT
`CASE NO. 3:21-CV-02437-RS
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`Case 3:21-cv-02437-RS Document 24 Filed 07/09/21 Page 3 of 13
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`& Cheese from Walmart and Safeway stores located in Union City and Fremont, California. Had
`Defendant disclosed on the label that the Product contained phthalates, and the harms that
`phthalates can cause, Ms. deVera would have been aware of those facts and would not have
`purchased the products, or at the very least, would have paid significantly less for them. After
`learning of the presence of phthalates in the Product, Ms. deVera stopped purchasing the Product.
`However, Ms. deVera regularly visits stores where Defendant’s products are sold and remains
`interested in purchasing safe macaroni and cheese products. She would consider purchasing
`Defendant’s Product in the future if Defendant removed the phthalates.
`5.
`Defendant The Kraft Heinz Company is a Pennsylvania corporation with its
`principal place of 1 PPG Place, Suite 3400, Pittsburgh, PA. Defendant manufactures, markets, and
`distributes the Products throughout the United States.
`JURISDICTION AND VENUE
`6.
`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §
`1332(d) because there are more than 100 class members and the aggregate amount in controversy
`exceeds $5,000,000, exclusive of interest, fees, and costs, and at least one Class member is a
`citizen of a state different from Defendant.
`7.
`This Court has personal jurisdiction over Defendant because Defendant conducts
`substantial business within California such that Defendant has significant, continuous, and
`pervasive contacts with the State of California.
`8.
`Venue is proper in this District pursuant to 28 U.S.C. § 1391 because Defendant
`does substantial business in this District, a substantial part of the events giving rise to Plaintiffs’
`claims took place within this District because Plaintiffs purchased the Products in this District and
`were therefore injured in this District.
`COMMON FACTUAL ALLEGATIONS
`
`A.
`Background on Phthalates
`9.
`Phthalates are synthetic chemicals used to make plastics flexible. Phthalates have
`powerful defenders, including Exxon Mobil, a leading producer of the chemical.
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`FIRST AMENDED CLASS ACTION COMPLAINT
`CASE NO. 3:21-CV-02437-RS
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`Case 3:21-cv-02437-RS Document 24 Filed 07/09/21 Page 4 of 13
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`10.
`Phthalates can migrate into food products during processing, packaging, and
`preparation. Although not intentionally added to food, phthalates are “indirect” food additives
`because they escape from food contact materials, including processing equipment, such as plastic
`tubing, conveyor belts or gloves, as well as food packaging materials. When added to these
`materials as plasticizers, phthalates make up 30-50% of the composite material, but they
`continually shed onto anything that they touch, such as food products because they are not
`chemically bound to the plastics and vinyl.
`11.
`Because phthalates bind with fats, they tend to be found at higher levels in highly
`processed or fatty foods, such as the Products.
`12.
` Within the scientific community, phthalates are called “endocrine disruptors”
`because they affect the body’s hormones by mimicking them or blocking them. Specifically, they
`interfere with the body’s natural levels of estrogen, testosterone, and other hormones, which is why
`they are called “disruptors.”
`13.
` Unfortunately, researchers have proved that, unlike other chemicals, phthalates
`appear to have more serious effects at lower levels than at higher levels. Although it is typically
`assumed that the higher the dose or exposure, the greater the harm, endocrine disruptors play by
`different rules.
`14.
`Indeed, the director of the National Institute of Environmental Health Sciences,
`Linda Birnbaum, stated that chemical manufacturers are asking “old questions” when they test for
`safety even though “science has moved on.”
`15.
`The problem posed by phthalates is that hormones can increase the risk of some
`cancers, regardless of whether those hormones are natural or synthetic. Too much or too little of a
`hormone can be harmful. By way of example, research shows that animals exposed to phthalates
`are more likely to develop liver cancer, kidney cancer, and male reproductive organ damage.
`Studies also show associations between children’s exposure to phthalates and the risk of asthma,
`allergies and bronchial obstruction.
`16.
`Researchers at Mount Sinai also found a link between obesity and phthalates. They
`found that among overweight girls ages 6 to 8, the higher the concentration of certain phthalates in
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`Case 3:21-cv-02437-RS Document 24 Filed 07/09/21 Page 5 of 13
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`their urine, the higher their body mass index (BMI). A study among Danish children ages 4 to 9
`found that the higher the concentration of phthalates, the shorter the child.
`17.
`Even short-term exposure to phthalates has now been linked to developmental
`deficits. Researchers found that children in intensive care units who were exposed to the phthalates
`through plastic tubing and catheters had 18 times as much of the chemicals in their blood compared
`to children who had not spent time in the ICU. Four years later, the children who had been
`exposed to the phthalates had more problems with attention and motor coordination. The
`researchers found that the phthalates caused these problems regardless of medical complications or
`treatments.
`18.
`Parents must also be wary of prenatal exposure to phthalates. Several studies that
`have tested phthalate levels in women in their third trimester of pregnancy have found health
`effects in the infants, toddlers, and older children of the mothers with the highest levels. A 2011
`study found that six-month-old boys whose mothers had the highest phthalate levels scored lower
`on brain and motor development tests.
`19.
`Research suggests that boys exposed to phthalates while in the womb may be more
`likely to develop smaller genitals and incomplete descent of the testicles. Boys who are born with
`undescended testicles are 2-8 times more likely to develop testicular cancer later on than men born
`with both testicles descended. Studies by Harvard researchers have shown phthalates may alter
`human sperm DNA and semen quality.
`20.
`Columbia University researchers discovered that three-year-olds with high prenatal
`exposure to two types of phthalates were more likely to have motor delays. They also reported that
`three phthalates were linked to certain behavior problems in three-year-olds. One phthalate in the
`study was linked to lower mental development in girls.
`21.
`It therefore comes as no surprise that, as of February 2009, children’s toys and child
`care products sold in the U.S (such as teething rings and plastic books) cannot contain certain
`phthalates. The ban on those phthalates is the result of a law passed in 2008, the Consumer
`Product Safety Improvement Act. The law permanently banned these phthalates.
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`FIRST AMENDED CLASS ACTION COMPLAINT
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`Case 3:21-cv-02437-RS Document 24 Filed 07/09/21 Page 6 of 13
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`22.
`A few months before the 2008 bill passed, major retailers such as Wal-Mart, Target,
`and Babies “R” Us promised to remove or severely restrict children’s products containing
`phthalates by the end of 2008. That provided added incentives for major companies making
`teething rings and other soft plastic products to stop using phthalates.
`23.
`The ban in the U.S. followed similar bans in other countries. In 2006, the European
`Union banned the use of certain phthalates in toys that may be placed in the mouth by children
`younger than 3 years old. Fourteen other countries, including Japan, Argentina, and Mexico, had
`also banned phthalates from children’s toys prior to the U.S.
`24.
`According to scientists, “[t]here is strong evidence that phthalates block the
`production of the hormone testosterone. ‘That means there is less testosterone available to the
`developing male fetus, and since testosterone is absolutely vital to build his reproductive organs,
`the worry is that you will get malformations and other kinds of problems that translate to health
`effects later,’ Dr. Patisaul said. Those include ‘infertility, low sperm counts, altered male
`reproductive behavior and changes in the area of the brain that are important for sex differences
`between men and women,’ as well as a heightened risk of testicular cancer later on, she said.” Id.
`25.
`“‘If you asked most scientists about the top 10 or 20 endocrine-disrupting chemicals
`they worry about, phthalates would be on that list,’ Dr. Patisaul said. ‘We have an enormous
`amount of data.’” Id.
`B.
`Defendant’s Macaroni & Cheese Products Contain Phthalates
` Independent testing commissioned by the Coalition for Safer Food Processing &
`26.
`Packaging showed that, among 30 total products tested, 29 out of the 30 cheese products contained
`a form of phthalates— and that eight of the nine Kraft Macaroni & Cheese products tested
`contained phthalates.
`27.
`In particular, average phthalate levels were more than four times higher in macaroni
`and cheese powder samples than in hard blocks and other natural cheese. DEHP, the most widely
`restricted phthalate, was found more often and at a much higher average concentration than any
`other phthalate, among all the cheese products tested.
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`FIRST AMENDED CLASS ACTION COMPLAINT
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`Case 3:21-cv-02437-RS Document 24 Filed 07/09/21 Page 7 of 13
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`28.
`According to Environmental Health News (ehn.org), “Phthalate concentrations in
`Kraft products like mac and cheese powder and processed cheese range from 0.2 mg/kg (or parts
`per million, ppm) to 2.5 ppm. The US Environmental Protection Agency estimates that a safe dose
`for phthalates is between 0.1 and 0.01 ppm…”1
`29.
`For years, Kraft has known about the presence of phthalates in its Products. Since
`at least 2017, consumer advocacy groups have called on Kraft to take steps to remove these
`chemicals from its Products, yet Kraft has steadfastly refused to do so.
`30.
`Instead, in 2017, Kraft responded that it does not purposely add phthalates to the
`Products and that any phthalates found in its Macaroni & Cheese is merely present in “trace”
`amounts. These comments, while inaccurately downplaying the significance of the phthalates
`found in the Products, demonstrate that, at minimum, Kraft has known about this issue since 2017.
`31.
`Acknowledging the harmfulness of phthalates, one of Defendant’s main competitors
`in the Macaroni & Cheese industry—Annie’s—has pledged to take steps to remove these harmful
`chemicals from its macaroni & cheese products.2 In other words, the inclusion of phthalates in the
`products is entirely preventable. And yet, putting its profits above the health of its customers,
`Defendant has refused to take steps to prevent the adulteration of its products with phthalates.
`32.
` Throughout the relevant time period, Defendant knew that Kraft Mac & Cheese
`Products may contain phthalates and that the inclusion of phthalates in those products would be
`material to consumers. As such, it had a duty to disclose this information to consumers. Despite
`this, Defendant failed to disclose to consumers on its packaging that Kraft Mac & Cheese Products
`may contain phthalates. Defendant intentionally failed to disclose this information in order to
`induce and mislead reasonable consumers to purchase its Kraft Mac & Cheese Products and to pay
`more for them than they would otherwise.
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`1 https://www.ehn.org/phthalates-in-macaroni-and-cheese-2640037202.html
`2 https://www.nytimes.com/2021/02/19/business/annies-mac-cheese-plastic-phthalates.html
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`FIRST AMENDED CLASS ACTION COMPLAINT
`CASE NO. 3:21-CV-02437-RS
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`Case 3:21-cv-02437-RS Document 24 Filed 07/09/21 Page 8 of 13
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`C.
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`Consumer Survey Findings Show That The Presence of Ortho-Phthalates Is
`Material To Consumers
`33.
`In order to confirm the materiality and misleading nature of Defendant’s omission
`concerning ortho-phthalates, Plaintiffs’ counsel commissioned a consumer survey which found that
`an overwhelming majority of consumers stated that the presence or risk of presence of ortho-
`phthalates was “important” or “very important” to their purchasing decisions with respect to boxed
`macaroni and cheese.
`34.
`Specifically, the survey polled 400 U.S. adult consumers who had purchased boxed
`macaroni and cheese within the last six months.
`35.
`Unsurprisingly, 89.5% of the surveyed consumers stated that the presence or risk of
`presence of ortho-phthalates within boxed macaroni and cheese was “important” or “very
`important” to their purchasing decisions.
`CLASS REPRESENTATION ALLEGATIONS
`36.
`Plaintiffs seek to represent a class defined as all persons in California who
`purchased the Products (the “Class”). Excluded from the Class are persons who made such
`purchases for purpose of resale.
`37.
`At this time, Plaintiffs do not know the exact number of members of the
`aforementioned Class (“Class Members”); however, given the nature of the claims and the number
`of retail stores in the United States selling the Products, Plaintiffs believe that Class members are
`so numerous that joinder of all members is impracticable.
`38.
`There is a well-defined community of interest in the questions of law and fact
`involved in this case. Questions of law and fact common to the members of the Class that
`predominate over questions that may affect individual Class members include:
`(a)
`whether Defendant failed to disclose material facts concerning the Products;
`(b)
`whether Defendant breached implied warranties to Plaintiffs and the Class;
`(c)
`whether Plaintiffs and the Class have sustained damages with respect to the
`common law claims asserted, and if so, the proper measure of their damages.
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`FIRST AMENDED CLASS ACTION COMPLAINT
`CASE NO. 3:21-CV-02437-RS
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`39.
`Plaintiffs’ claims are typical of those of the Class because Plaintiffs, like all
`members of the Class, purchased, in a typical consumer setting, Defendant’s Products, and
`Plaintiffs sustained damages from Defendant’s wrongful conduct.
`40.
`Plaintiffs will fairly and adequately protect the interests of the Class and have
`retained counsel that is experienced in litigating complex class actions. Plaintiffs have no interests
`which conflict with those of the Class.
`41.
`A class action is superior to other available methods for the fair and efficient
`adjudication of this controversy.
`42.
`The prosecution of separate actions by members of the Class would create a risk of
`establishing inconsistent rulings and/or incompatible standards of conduct for Defendant. For
`example, one court might enjoin Defendant from performing the challenged acts, whereas another
`might not. Additionally, individual actions could be dispositive of the interests of the Class where
`certain Class members are not parties to such actions.
`COUNT I
`(Breach of Implied Warranty Under the Song-Beverly Act, Cal. Civ. Code
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`§ 1790 et seq. and California Commercial Code § 2314)
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`Plaintiffs incorporate by reference the foregoing paragraphs of Complaint as if fully
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`43.
`stated herein.
`44.
`Plaintiffs bring this claim individually and on behalf of the members of the
`proposed Class against Defendant.
`45.
`Under the Song-Beverly Consumer Warranty Act, Cal. Civ. Code § 1790, et seq.,
`and California Commercial Code § 2314, every sale of consumer goods in this State is
`accompanied by both a manufacturer’s and retail seller’s implied warranty that the goods are
`merchantable, as defined in that Act. In addition, every sale of consumer goods in this State is
`accompanied by both a manufacturer’s and retail seller’s implied warranty of fitness when the
`manufacturer or retailer has reason to know that the goods as represented have a particular purpose
`and that the buyer is relying on the manufacturer’s or retailer’s skill or judgment to furnish suitable
`goods consistent with that represented purpose.
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`FIRST AMENDED CLASS ACTION COMPLAINT
`CASE NO. 3:21-CV-02437-RS
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`46.
`The Products at issue here are “consumer goods” within the meaning of Cal. Civ.
`Code § 1791(a).
`47.
`Plaintiffs and the Class members who purchased one or more of the Products are
`“retail buyers” within the meaning of Cal. Civ. Code § 1791.
`48.
`Defendant is in the business of manufacturing, assembling, producing and/or selling
`the Products to retail buyers, and is therefore a “manufacturer” and “seller” within the meaning of
`Cal. Civ. Code § 1791.
`49.
`Defendant impliedly warranted to retail buyers that the Products were merchantable
`in that they would: (a) pass without objection in the trade or industry under the contract
`description, and (b) were fit for the ordinary purposes for which the Products are used. For a
`consumer good to be “merchantable” under the Act, it must satisfy both of those elements.
`Defendant breached the implied warranties because the Products were unsafe and defective.
`Therefore, the Products would not pass without objection in the trade or industry and were not fit
`for the ordinary purpose for which they are used.
`50.
`Plaintiffs and Class members purchased the Products in reliance upon Defendant’s
`skill and judgment in properly packaging and labeling the Products.
`51.
`The Products were not altered by Plaintiff or Class members.
`52.
`The Products were defective at the time of sale when they left the exclusive control
`of Defendant. The defect described in this complaint was latent in the product and not
`discoverable at the time of sale.
`53.
`Defendant knew that the Product would be purchased and used without additional
`testing by Plaintiffs and Class members.
`54.
`As a direct and proximate cause of Defendant’s breach of the implied warranty,
`Plaintiffs and Class members have been injured and harmed because they would not have
`purchased the Products if they knew the truth about the products, namely, that they contained
`harmful chemicals known as phthalates.
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`FIRST AMENDED CLASS ACTION COMPLAINT
`CASE NO. 3:21-CV-02437-RS
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`COUNT II
`(Fraudulent Omission)
`Plaintiffs incorporate by reference the foregoing paragraphs of Complaint as if fully
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`55.
`stated herein.
`56.
`Plaintiffs bring this claim individually and on behalf of the members of the
`proposed Class against Defendant.
`57.
`As discussed above, Defendant failed to disclose material facts about the Products,
`including but not limited to the fact that the Products may contain harmful chemicals known as
`phthalates.
`58.
`Defendant had a duty to disclose these materials facts because it had exclusive
`knowledge of material facts not known to the plaintiffs or other consumers, it actively concealed
`material facts from the plaintiff and other consumers, and it made partial representations while also
`suppressing some material facts.
`59.
`The omissions made by Defendant, upon which Plaintiffs and Class members
`reasonably and justifiably relied, were intended to induce and actually induced Plaintiffs and Class
`members to purchase the Products.
`60.
`The fraudulent actions of Defendant caused damage to Plaintiffs and Class
`members, who are entitled to damages and other legal and equitable relief as a result.
`COUNT III
`(Unjust Enrichment)
`Plaintiffs incorporate by reference the foregoing paragraphs of Complaint as if fully
`
`61.
`stated herein.
`62.
`Plaintiffs bring this claim individually and on behalf of the members of the
`proposed Class against Defendant.
`63.
`Plaintiffs and Class members conferred a monetary benefit on Defendant.
`Specifically, they purchased Kraft Mac & Cheese Products from Defendant and provided
`Defendant with their monetary payment. In exchange, Plaintiffs and Class members should have
`received from Defendant goods that were healthy and nutritious and did not contain (or risk
`containing) dangerous phthalates.
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`FIRST AMENDED CLASS ACTION COMPLAINT
`CASE NO. 3:21-CV-02437-RS
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`64.
` Defendant knew that Plaintiffs and Class members conferred a benefit on them
`and accepted or retained that benefit. Defendant profited from Plaintiffs’ purchases and used
`Plaintiffs and Class members’ monetary payments for business purposes.
`65.
`Defendant failed to disclose to Plaintiffs and Class members that its Kraft Mac
`& Cheese Products were unhealthy and contained (or risk containing) dangerous phthalates and did
`not provide product that Plaintiffs and Class members were promised.
`66.
`If Plaintiffs and Class members knew that Defendant’s Kraft Mac & Cheese
`Products were (or risked being) toxic as alleged herein, they would not have purchased
`Defendant’s Kraft Mac & Cheese Products. Plaintiffs and Class members have no adequate
`remedy at law.
`67.
`Under the circumstances, it would be unjust for Defendant to be permitted to retain
`any of the benefits that Plaintiffs and Class members conferred on it.
`68.
`Defendant should be compelled to disgorge, for the benefit of Plaintiffs and Class
`members, proceeds that Defendant unjustly received from Plaintiffs and Class members. In the
`alternative, Defendant should be compelled to refund the amounts that Plaintiffs and Class
`members overpaid.
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`b.
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`PRAYER FOR RELIEF
`WHEREFORE, Plaintiffs, individually and on behalf of all others similarly situated, seek
`judgment against Defendant, as follows:
`a.
`For an order certifying the California Class under Rule 23 of the Federal Rules of
`Civil Procedure and naming Plaintiffs as representatives of the Class and Plaintiffs’
`attorneys as Class Counsel to represent the Class members;
`For an order declaring the Defendant’s conduct violates the statutes referenced
`herein;
`For an order finding in favor of Plaintiffs and the California Class on all counts
`asserted herein;
`For compensatory, statutory, and punitive damages in amounts to be determined by
`the Court and/or jury;
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`c.
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`d.
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`FIRST AMENDED CLASS ACTION COMPLAINT
`CASE NO. 3:21-CV-02437-RS
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`Case 3:21-cv-02437-RS Document 24 Filed 07/09/21 Page 13 of 13
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`e.
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`For prejudgment interest on all amounts awarded;
`For an order of restitution and all other forms of equitable monetary relief;
`For an order requiring Defendant to undertake a corrective advertising campaign;
`For injunctive relief as pleaded or as the Court may deem proper; and
`For an order awarding Plaintiffs and the Class their reasonable attorneys’ fees and
`expenses and costs of suit.
`DEMAND FOR TRIAL BY JURY
`Plaintiffs demand a trial by jury of all issues so triable.
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`Dated: July 9, 2021
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`Respectfully submitted,
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`BURSOR & FISHER, P.A.
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`By:
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` /s/ L. Timothy Fisher
` L. Timothy Fisher
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`L. Timothy Fisher (State Bar No. 191626)
`1990 North California Blvd., Suite 940
`Walnut Creek, CA 94596
`Telephone: (925) 300-4455
`Facsimile: (925) 407-2700
`Email: ltfisher@bursor.com
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`Counsel for Plaintiffs
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`FIRST AMENDED CLASS ACTION COMPLAINT
`CASE NO. 3:21-CV-02437-RS
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