Case 4:21-cv-00913-YGR Document 1 Filed 02/05/21 Page 1 of 32
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`LOCKRIDGE GRINDAL NAUEN P.L.L.P.
`REBECCA A. PETERSON (241858)
`ROBERT K. SHELQUIST
`100 Washington Avenue South, Suite 2200
`Minneapolis, MN 55401
`Telephone: (612) 339-6900
`Facsimile: (612) 339-0981
`E-mail: rapeterson@locklaw.com
` rkshelquist@locklaw.com
`
`Attorneys for Plaintiff
`[Additional Counsel on Signature Page]
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`OAKLAND DIVISION
`
`Case No. ___________________
`
`
`
`CLASS ACTION COMPLAINT FOR:
`
`(1) NEGLIGENT
`MISREPRESENTATION;
`(2) VIOLATIONS OF THE
`CALIFORNIA CONSUMER LEGAL
`REMEDIES ACT;
`(3) VIOLATIONS OF THE
`CALIFORNIA FALSE ADVERTISING
`LAW;
`(4) VIOLATIONS OF THE
`CALIFORNIA UNFAIR COMPETITION
`LAW;
`(5) BREACH OF EXPRESS
`WARRANTY; AND
`(6) BREACH OF IMPLIED
`WARRANTY;
`
`DEMAND FOR JURY TRIAL
`
`))
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`Ludmila Gulkarov, Individually and on
`Behalf of All Others Similarly Situated,
`
`Plaintiff,
`v.
`
`Plum, PBC, a Delaware corporation,
`
`
`
`Defendant.
`
`857146.1
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`CLASS ACTION COMPLAINT
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`Case 4:21-cv-00913-YGR Document 1 Filed 02/05/21 Page 2 of 32
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`1.
`Plaintiff Ludmila Gulkarov (“Plaintiff”), individually and on behalf of all others
`similarly situated, by and through her undersigned attorneys, brings this Class Action Complaint
`against Defendant Plum, PBC (“Defendant”), for its negligent, reckless, and/or intentional practice
`of misrepresenting and failing to fully disclose the presence of dangerous substances in its baby
`food sold throughout the United States. Plaintiff seeks both injunctive and monetary relief on
`behalf of the proposed Class (as defined herein), including requiring full disclosure of all such
`substances in its marketing, advertising, and labeling and restoring monies to the members of the
`proposed Class. Plaintiff alleges the following based upon personal knowledge as well as
`investigation by her counsel, and as to all other matters, upon information and belief (Plaintiff
`believes that substantial evidentiary support will exist for the allegations set forth herein after a
`reasonable opportunity for discovery).
`NATURE OF THE ACTION
`2.
`Parents like Plaintiff trust manufacturers like Defendant to sell baby food that is
`safe, nutritious, and free from harmful toxins, contaminants, and chemicals. They certainly expect
`the food they feed their infants and toddlers to be free from Heavy Metals, substances known to
`have significant and dangerous health consequences.1
`3.
`Consumers lack the scientific knowledge necessary to determine whether the
`Defendant’s products do in fact contain Heavy Metals or to know or ascertain the true nature of
`the ingredients and quality of the Products. Reasonable consumers therefore must and do rely on
`Defendant to honestly report what its products contain.
`4.
`A recent report by the U.S. House of Representatives’ Subcommittee on Economic
`and Consumer Policy, Committee on Oversight and Reform reveals that parents’ trust has been
`violated. Ex. 1. The Subcommittee’s investigation of the seven largest baby food manufacturers in
`the United States, including Defendant, was spurred by “reports alleging high levels of toxic heavy
`
`
`1 As used herein, the phrase “Heavy Metals” is collectively defined as arsenic, cadmium, lead, and
`mercury.
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`Case 4:21-cv-00913-YGR Document 1 Filed 02/05/21 Page 3 of 32
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`metals in baby foods” and the knowledge that “[e]ven low levels of exposure can cause serious
`and often irreversible damage to brain development.” Ex. 1 at 2.
`5.
`The Subcommittee’s report revealed that “[i]nternal company standards permit
`dangerously high levels of toxic heavy metals, and … that the manufacturers have often sold foods
`that exceeded these levels.” Ex. 1 at 4. Defendant was among the three companies that refused to
`cooperate with the Subcommittee’s investigation, causing “great[] concern that their lack of
`cooperation might obscure the presence of even higher levels of toxic heavy metals in their baby
`food products, compared to their competitors’ products.” Ex. 1 at 5. “[E]ven limited independent
`testing has revealed the presence of toxic heavy metals in [Defendant’s] baby food.” Ex. 1 at 45.
`6.
`Defendant knows that its customers trust the quality of its products and that they
`expect Defendant’s products to be free of Heavy Metals. It also knows that certain consumers seek
`out and wish to purchase premium baby foods that possess high quality ingredients free of toxins,
`contaminants, or chemicals and that these consumers will pay more for baby foods they believe
`possess these qualities than for baby foods they do not believe possess these qualities.
`7.
`As such, Defendant’s promises, warranties, pricing, statements, claims, packaging,
`labeling, marketing, and advertising (hereinafter collectively referred to as “Marketing” or
`“Claims”) center on representations and pictures that are intended to, and do, convey to consumers
`that their baby food, including its Contaminated Baby Foods,2 possess certain qualities and
`characteristics that justify a premium price.
`8.
`No reasonable consumer seeing Defendant’s Marketing would expect the
`Contaminated Baby Foods to contain Heavy Metals or other undesirable toxins or contaminants.
`Furthermore, reasonable consumers, like Plaintiff, would consider the mere inclusion of Heavy
`
`2 The phrase “Contaminated Baby Foods” collectively refers to the following Plum Organics
`products: Just Sweet Potato Organic Baby Food; Just Peaches Organic Baby Food; Just Prunes
`Organic Baby Food; Apple & Carrot Organic Baby Food; Pumpkin, Banana, Papaya, and
`Cardamom Organic Baby Food; Apple, Raisin, & Quinoa Organic Baby Food; Little Teethers
`Organic Multigrain Teething Wafers- Banana with Pumpkin; Mighty Morning Bar- Blueberry
`Lemon. Discovery may reveal additional products that also contain levels of Heavy Metals.
`Plaintiff reserves her right to include any such products in this action.
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`Case 4:21-cv-00913-YGR Document 1 Filed 02/05/21 Page 4 of 32
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`Metals or other undesirable toxins or contaminants a material fact when considering what baby
`food to purchase.
`9.
`Defendant intended for consumers to rely on its Marketing, and reasonable
`consumers did in fact so rely. However, Defendant’s Marketing is deceptive, misleading, unfair,
`and/or false because, among other things, the Contaminated Baby Foods include undisclosed
`Heavy Metals or other undesirable toxins or contaminants.
`10.
`Defendant’s Contaminated Baby Foods do not have a disclaimer regarding the
`presence of Heavy Metals or other undesirable toxins or contaminants that would inform
`consumers that the foods contain Heavy Metals and/or that Heavy Metals can accumulate over
`time in a child’s body to the point where poisoning, injury, and/or disease can occur.
`11.
`Defendant’s wrongful Marketing, which includes misleading, deceptive, unfair,
`and false Marketing and omissions, allowed it to capitalize on, and reap enormous profits from,
`consumers who paid the purchase price or a price premium for Contaminated Baby Food that was
`not sold as advertised. And Defendant continues to wrongfully induce consumers to purchase its
`Contaminated Baby Food that are not as advertised.
`12.
`Plaintiff brings this proposed consumer class action individually and on behalf of
`all other members of the Class (as defined herein), who, from the applicable limitations period up
`to and including the present, purchased for use and not resale any of Defendant’s Contaminated
`Baby Foods.
`
`JURISDICTION AND VENUE
`13.
`This Court has original jurisdiction over all causes of action asserted herein under
`the Class Fairness Act, 28 U.S.C. §1332(d)(2), because the matter in controversy exceeds the sum
`or value or $5,000,000 exclusive of interest and costs and more than two-thirds of the Class resides
`in states other than the state in which Defendant is a citizen and in which this case is filed, and
`therefore any exemptions to jurisdiction under 28 U.S.C. §1332(d)(2) do not apply.
`14.
`Venue is proper in this Court pursuant to 28 U.S.C. §1391, because Plaintiff
`suffered injury as a result of Defendant’s acts in this district, many of the acts and transactions
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`Case 4:21-cv-00913-YGR Document 1 Filed 02/05/21 Page 5 of 32
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`giving rise to this action occurred in this district, and Defendant conducts substantial business in
`this district and is headquartered in this district. Defendant has intentionally availed itself of the
`laws and markets of this district, and Defendant is subject to personal jurisdiction in this district.
`THE PARTIES
`15.
`Plaintiff is, and at all times relevant hereto has been, a citizen of the state of
`California. She purchased the Contaminated Baby Foods, specifically the Plum Organics Sweet
`Potato Baby Food and Plum Organics Apple & Carrot, for all three of her children from Vons and
`Albertsons grocery stores. Plaintiff last purchased the Contaminated Baby Foods for her youngest
`child from July 2014 to 2017.
`16.
`Plaintiff believed she was feeding her children healthy, nutritious food. During the
`time she purchased and fed her children the Contaminated Baby Foods. Due to the false and
`misleading claims and omissions by Defendant, she was unaware the Contaminated Baby Foods
`contained any level of Heavy Metals, and would not have purchased the food if that information
`had been fully disclosed.
`17.
`As the result of Defendant’s negligent, reckless, and/or knowingly deceptive
`conduct as alleged herein, Plaintiff was injured when she paid the purchase price or a price
`premium for the Contaminated Baby Foods that did not deliver what they promised. She paid the
`purchase price on the assumption that the labeling of the Contaminated Baby Foods was accurate
`and that it was free of Heavy Metals and safe to ingest. Plaintiff would not have paid this money
`had she known that the Contaminated Baby Food contained excessive degrees of Heavy Metals.
`Further, should Plaintiff encounter the Contaminated Baby Foods in the future, she could not rely
`on the truthfulness of the Marketing, absent corrective changes to the packaging and advertising
`of the Contaminated Baby Foods. Damages can be calculated through expert testimony at trial.
`18.
`Defendant Plum, PBC was founded in 2007 and is incorporated in Delaware. Its
`headquarters are located at 1485 Park Avenue, Suite 200, Emeryville, California. Defendant
`formulates, develops, manufactures, labels, distributes, markets, advertises, and sells the
`Contaminated Baby Foods under the Plum Organics name throughout the United States. Defendant
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`Case 4:21-cv-00913-YGR Document 1 Filed 02/05/21 Page 6 of 32
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`created, allowed, negligently oversaw, and/or authorized the unlawful, fraudulent, unfair,
`misleading, and/or deceptive labeling and advertising for the Contaminated Baby Foods.
`19.
`The Marketing for the Contaminated Baby Foods, relied upon by Plaintiff, was
`prepared, reviewed, and/or approved by Defendant and its agents at its headquarters in California
`and was disseminated by Defendant and its agents through marketing, advertising, packaging, and
`labeling that contained the misrepresentations alleged herein. The Marketing for the Contaminated
`Baby Foods was designed to encourage consumers to purchase the Contaminated Baby Foods and
`reasonably misled the reasonable consumer, i.e., Plaintiff and the Class members, into purchasing
`the Contaminated Baby Foods.
`20.
`Defendant’s Products are divided into groups according to the targeted infant or
`toddler age and/or type of food product. For example, there are five groups designated for the
`youngest infants: Stage 1 (4+ months old), Stage 2 (6+ months old), Stage 3 (6+ months old),
`Super Puffs®, and Little Teethers.
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`Case 4:21-cv-00913-YGR Document 1 Filed 02/05/21 Page 7 of 32
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`The Contaminated Baby Foods, at a minimum, include:
`
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`a) Just Sweet Potato Organic Baby Food:
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`Case 4:21-cv-00913-YGR Document 1 Filed 02/05/21 Page 8 of 32
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`b) Just Peaches Organic Baby Food:
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`c) Just Prunes Organic Baby Food:
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`d) Apple & Carrot Organic Baby Food:
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`Case 4:21-cv-00913-YGR Document 1 Filed 02/05/21 Page 9 of 32
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`e) Pumpkin, Banana, Papaya, and Cardamom Organic Baby Food:
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`f) Apple, Raisin, & Quinoa Organic Baby Food:
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`g) Little Teethers Organic Multigrain Teething Wafer- Banana with Pumpkin:
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`h) Mighty Morning Bar- Blueberry Lemon
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`FACTUAL ALLEGATIONS
`
`I. A Congressional Investigation Found the Presence Heavy Metals in Baby Foods
`22.
`On February 4, 2021, the U.S. House of Representatives’ Subcommittee on
`Economic and Consumer Policy, Committee on Oversight and Reform, published a report
`detailing its findings that Heavy Metals—including arsenic, cadmium, lead, and mercury—were
`present in “significant levels” in numerous commercial baby food products. Ex. 1.
`23.
`Defendant was one of the baby food manufacturers from whom the Subcommittee
`requested internal documents and test results. However, Defendant “refused to cooperate with the
`Subcommittee’s investigation.” Ex. 1. Defendant refused to produce its testing standards and
`specific test results but instead produced a spreadsheet that “self-declared” that every product met
`criteria for each of the Heavy Metals, while declining to state what the criteria were.
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`24.
`Defendants marked every product that it “meets criteria” without identifying what
`that criteria is. Ex. 1. The Subcommittee found Defendant’s “grading” concerning and misleading
`as it “raises questions about what [Defendant’s] other thresholds actually are, and whether they
`exist.” Ex. 1.
`25.
`The investigation found that, when baby food manufacturers were left to self-
`regulate and establish their own Heavy Metals standards, they routinely failed to abide by their
`own standards. Ex. 1.
`26.
`In its conclusion, the Subcommittee stressed the danger associated with the
`presence of Heavy Metals in baby food: “These toxic heavy metals pose serious health risks to
`babies and toddlers. Manufacturers knowingly sell these products to unsuspecting parents, in spite
`of internal company standards and test results, and without any warning labeling whatsoever.” Ex.
`1.
`
`27.
`In Defendant’s published response to the Subcommittee’s Report, it stated, “We are
`confident in the safety and quality of our products. Our top priority is to serve children healthy,
`nutritious food made from the best ingredients. We want to assure you that Plum’s products are
`safe (and delicious) to eat!”3
`28.
`However, under the FAQs section, Defendant fails to describe its “protocol for
`evaluating heavy metals in products” and simply claims that it looks to guidance from leading
`health and regulatory bodies, while also failing to identify the “healthy and regulatory bodies.”4
`
`
`3 https://www.plumorganics.com/faqs/ (last accessed February 5, 2021).
`
`4 Id.
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`II. Defendant Falsely Marketed Its Contaminated Baby Foods as Healthy While
`Omitting Any Mention of Heavy Metals
`29.
`Defendant packages, labels, markets, advertises, formulates, manufactures,
`distributes, and sells its Contaminated Baby Foods throughout the United States, including
`California.
`30.
`Defendant’s advertised mission is to “nourish little ones with the very best food
`from the very first bite.”5 Defendant repeatedly touts its commitment to and use of organic and
`non-GMO ingredients in its products, including the Contaminated Baby Foods. Defendant claims
`that its “top priority” is “to serve children healthy, nutritious food made from the best ingredients.”6
`31.
`Based on Defendant’s decision to advertise, label, and market its Contaminated
`Baby Foods as healthy, nutritious, “made from the best ingredients,” safe for consumption, and
`including “only” the healthy fruits, vegetables, or grains pictured on the label, it had a duty to
`ensure that these statements and the message portrayed by the labels’ imagery were true and not
`misleading. As such, Defendant knew or should have known the Contaminated Baby Foods
`included nondisclosed levels of Heavy Metals, and that these toxins can accumulate over time.
`32.
`The Contaminated Baby Foods are available at numerous retail and online outlets.
`The Contaminated Baby Foods are widely advertised, and Defendant includes a Vice President of
`Brand and Marketing on its Executive Team.
`33.
`As discussed above, the Marketing of the Contaminated Baby Foods also fails to
`disclose they contain or are at risk or containing any level of Heavy Metals or other undesirable
`toxins or contaminants. Defendant intentionally omitted these contaminants in order to induce and
`mislead reasonable consumers to purchase its Contaminated Baby Foods.
`
`
`at
` Available
`2018.
`Fiscal Year
`5
`Plum Organics Mission Highlights,
`https://www.plumorganics.com/wp-content/uploads/2019/05/Plum_MissionReport2018.pdf (last
`accessed February 4, 2021).
`
`6 https://www.plumorganics.com/faqs/ (last accessed February 4, 2021).
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`34.
`As a result of Defendant’s omissions, a reasonable consumer would have no reason
`to suspect the presence of Heavy Metals in the Contaminated Baby Foods without conducting his
`or her own scientific tests or reviewing third party scientific testing of these products.
`III. Defendant’s Marketing Misled and Deceived Consumers
`35.
`Defendant’s Marketing wrongfully conveys to consumers that its Contaminated
`Baby Foods have certain superior quality and characteristics that they do not actually possess.
`36.
`For instance, although Defendant misleadingly causes consumers to believe its
`Contaminated Baby Foods do not contain Heavy Metals through its Marketing and omissions, the
`Contaminated Baby Foods do in fact contain undisclosed Heavy Metals, which is material
`information to reasonable consumers.
`37.
`For example, the following foods were tested and found to contain undisclosed
`Heavy Metals at the following levels:7
`
`
`Food
`
`Plum Organics Just Sweet
`Potato Organic Baby Food-
`1, 4 months
`
`Plum Organics Just Peaches
`Organic Baby Food (Stage 1)
`
`Plum Organics Just Prunes
`Organic Baby Food- 1, 4
`months & up
`
`Arsenic
`(total,
`ppb)
`
`3.1*8
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`7.2
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`7.6
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`Arsenic
`(inorganic,
`ppb)
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`Lead
`(ppb)
`
`Cadmium
`(ppb)
`
`--
`
`--
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`--
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`5.6
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`2.3
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`0.9*
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`2.5
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`<0.5
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`<0.5
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`Mercury
`(total,
`ppb)
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`<0.142
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`<0.139
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`0.194*
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`7 The following chart represents the levels of Heavy Metals in Defendant’s products included in
`the Healthy Babies Bright Futures Report, dated October 2019.
` Available at:
`https://www.healthybabyfood.org/sites/healthybabyfoods.org/files/2020-
`04/BabyFoodReport_ENGLISH_R6.pdf (last accessed February 4, 2021).
`
`8 An “*” indicates that test results were estimated, between the limit of detection and the limit of
`quantitation.
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`Case 4:21-cv-00913-YGR Document 1 Filed 02/05/21 Page 14 of 32
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`Arsenic
`(total,
`ppb)
`
`2.4*
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`5.6*
`
`49.9
`
`--
`
`--
`
`--
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`Arsenic
`(inorganic,
`ppb)
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`Lead
`(ppb)
`
`Cadmium
`(ppb)
`
`1.4*
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`2.4
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`Mercury
`(total,
`ppb)
`
`<0.139
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`2.2
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`1.9
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`0.145*
`
`1.4*
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`6.3
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`0.726
`
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`Food
`
`Plum Organics Pumpkin
`Banana Papaya Cardamom,
`6 months & up
`
`Plum Organics Apple,
`Raisin, & Quinoa Organic
`Baby Food- 2
`
`Plum Organics Little
`Teethers Organic Multigrain
`Teething Wafers- Banana
`with Pumpkin- Baby Crawler
`
`Plum Organics Mighty
`Morning Bar- Blueberry
`Lemon- Tots, 15 months &
`up
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`1 2 3 4 5 6 7 8 9
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`409
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`39
`
`3.4
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`24.3
`
`<0.137
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`38.
`Defendant’s Marketing wrongfully fails to disclose to consumers the presence of
`Heavy Metals in its Contaminated Baby Foods.
`39.
`Based on Defendant’s Marketing, a reasonable consumer would not suspect the
`presence of Heavy Metals, nor would a reasonable consumer be able to detect the presence of
`Heavy Metals in the Contaminated Baby Foods without conducting his or her own scientific tests
`or reviewing scientific testing conducted on the Products.
`40.
`Reasonable consumers must and do rely on Defendant to honestly report what its
`Contaminated Baby Foods contain.
`41.
`In light of Defendant’s Marketing, including its “comprehensive” quality controls,
`Defendant knew or should have known the Contaminated Baby Foods contained Heavy Metals.
`42.
`Defendant intended for consumers to rely on its Marketing, and reasonable
`consumers did in fact so rely.
`
`9 “This value is the average of 3 tests of total arsenic (44, 37, and 39 ppb). The original
`homogenized bar was tested twice, and homogenate of a second, separate bar from the same box
`was tested once.”
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`43.
`Defendant had a duty to ensure the Contaminated Baby Foods were as they were
`represented and not deceptively, misleadingly, unfairly, and falsely marketed.
`44.
`Pursuant to the foregoing, Defendant’s Marketing is deceptive, misleading, unfair,
`and false to Plaintiff and other consumers, including under the consumer protection laws of
`California.
`45.
`Defendant acted negligently, recklessly, unfairly, and/or intentionally with its
`deceptive, misleading, unfair, and false Marketing and omissions.
`IV. Why Defendant’s Marketing and Omissions are Misleading
`46.
`At all times during the Class Period, Defendant knew or should have known the
`Contaminated Baby Foods contained Heavy Metals and were not sufficiently tested for the
`presence of Heavy Metals.
`47.
`Defendant’s Contaminated Baby Foods had a risk of containing Heavy Metals due
`to Defendant’s failure to monitor for their presence in the ingredients and finished products.
`Defendant was aware of this risk and failed to disclose it to Plaintiff and the Class.
`48.
`Defendant knew that Heavy Metals are a potentially dangerous contaminant that
`poses health risks to humans.
`49.
`Defendant knew or should have known that it owed consumers a duty of care to
`prevent, or at the very least, minimize the presence of Heavy Metals in the Contaminated Baby
`Foods to the extent reasonably possible.
`50.
`Defendant knew or should have known it owed consumers a duty of care to
`adequately test for Heavy Metals in the Contaminated Baby Foods.
`51.
`Defendant knew consumers purchased the Contaminated Baby Foods based on the
`reasonable expectation that Defendant manufactured the Contaminated Baby Foods to the highest
`standards. Based on this expectation, Defendant knew or should have known consumers
`reasonably inferred that Defendant would hold the Contaminated Baby Foods to the highest
`standards for preventing the inclusion of Heavy Metals in the Contaminated Baby Foods and for
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`the Heavy Metals testing of the ingredients in the Contaminated Baby Foods as well as the final
`product.
`52.
`Arsenic is an odorless and tasteless element that does not degrade or disappear.
`Arsenic occurs in the environment and can be found in rocks, soil, water, air, plants, and animals.
`Inorganic arsenic is highly toxic and a known cause of human cancers. Arsenic exposure can also
`cause respiratory, gastrointestinal, hematological, hepatic, renal, skin, neurological and
`immunological effects, and damage children’s central nervous systems and cognitive
`development.10 Based on the risks associated with exposure to higher levels of arsenic, both the
`U.S. Environmental Protection Agency (“EPA”) and U.S. Food and Drug Administration (“FDA”)
`have set limits concerning the allowable limit of arsenic at 10 parts per billion (“ppb”) for human
`consumption in apple juice (regulated by the FDA) and drinking water (regulating by the EPA).
`53.
`Cadmium is associated with decreases in IQ and the development of ADHD. The
`U.S. Department of Health and Human Services has determined that cadmium and cadmium
`compounds are known human carcinogens and the EPA has likewise determined that cadmium is
`a probable human carcinogen. It has been specifically noted that “Kidney and bone effects have
`… been observed in laboratory animals ingesting cadmium.”
`54.
`Lead is a carcinogen and developmental toxin known to cause health problems in
`children such as behavioral problems, decreased cognitive performance, delayed puberty, and
`reduced postnatal growth. Because lead can build up in the body over time as one is exposed to
`and/or ingests it, even a low level of chronic exposure can become toxic and seriously injurious to
`one’s health. The FDA has set standards that regulate the maximum parts per billion of lead
`permissible in water: bottled water cannot contain more than 5 ppb of total lead or 10 ppb of total
`arsenic. See 21 C.F.R. § 165.110(b)(4)(iii)(A).
`
`
`10 U.S. House of Representatives Staff Report by the Subcommittee on Economic and Consumer
`Policy, Committee on Oversight and Reform: “Baby foods are tainted with dangerous levels or
`arsenic,
`lead,
`cadmium,
`and
`mercury.”
`
`Available
`at
`https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2021-02-
`04%20ECP%20Baby%20Food%20Staff%20Report.pdf (last accessed February 4, 2021).
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`55. Mercury is a known toxin, and pre-natal exposure has been associated with affected
`neuro-development, a lowered IQ, and autistic behaviors. The impact of the various ways humans
`and animals are exposed and ingest mercury has been studied for years. In fact, in as early as 1997,
`the EPA issued a report to Congress that detailed the health risks to both humans and animals.
`Based on the toxicity and risks of mercury, regulations have been enacted at both the Federal and
`state level.
`56. While federal regulations regarding levels of Heavy Metals in most baby foods are
`non-existent, it is not due to a lack of risk. According to Linda McCauley, Dean of the Nell
`Hodgson Woodruff School of Nursing at Emory University, who studies environmental health
`effects, stated, “No level of exposure to these [heavy] metals has been shown to be safe in
`vulnerable infants.”11
`57.
`Based on the foregoing, reasonable consumers, like Plaintiff, would consider the
`inclusion of Heavy Metals a material fact when considering what baby food to purchase.
`58.
`Defendant knew that properly and sufficiently monitoring for Heavy Metals in its
`ingredients and Contaminated Baby Foods was not only important but critical.
`59.
`Defendant also knew that monitoring Heavy Metals was likewise important to its
`health-conscious consumers.
`60.
`Finally, Defendant knew or should have known it could control the levels of Heavy
`Metals in the Contaminated Baby Foods by properly monitoring their ingredients for Heavy Metals
`and adjusting any formulation or diet to reduce ingredients that contained higher levels of Heavy
`Metals.
`61.
`However, Defendant also knew it was not properly and sufficiently testing for
`Heavy Metals in the Contaminated Baby Foods. Defendant knew its failure to properly and
`sufficiently test for Heavy Metals in the Contaminated Baby Foods continued throughout the Class
`Period.
`
`11 https://www.nytimes.com/2021/02/04/health/baby-food-metals-arsenic.html (last accessed
`February 5, 2021).
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`62.
`Defendant’s Marketing was misleading due to its failure to properly and sufficiently
`monitor for and to disclose the risk of the presence of Heavy Metals in the Contaminated Baby
`Foods.
`
`63.
`Defendant knew or should have known consumers paid premium prices and
`expected Defendant to regularly test for Heavy Metals and sufficiently monitor the presence of
`Heavy Metals in the Contaminated Baby Foods and ingredients.
`64.
`At all times during the Class Period, Defendant did not consistently monitor or test
`for Heavy Metals in the Contaminated Baby Foods and ingredients.
`65.
`Defendant knew or should have known that consumers reasonably expected it to
`test for and monitor the presence of Heavy Metals in the Contaminated Baby Foods and
`ingredients.
`66.
`Defendant knew or should have known the Contaminated Baby Foods contained
`unmonitored levels of Heavy Metals that were inconsistent with their Marketing.
`67.
`Defendant knew or should have known that consumers expected it to ensure the
`Contaminated Baby Foods were monitored and tested for Heavy Metals to ensure compliance with
`their Marketing.
`68.
`Defendant knew, yet failed to disclose, its lack of regular testing and knowledge of
`the risk or presence of Heavy Metals in the Contaminated Baby Foods and ingredients.
`69.
`Defendant’s above-referenced statements, representations, partial disclosures, and
`omissions are false, misleading, and crafted to deceive the public as they create an image that the
`Contaminated Baby Foods are healthy, nutritious, and made from the best ingredients, are subject
`to stringent quality control, and are free of Heavy Metals.
`70. Moreover, reasonable consumers, such as Plaintiff and the Class members, would
`have no reason to doubt Defendant’s statements regarding the quality of the Contaminated Baby
`Foods. Defendant’s nondisclosure and/or concealment of the toxins in the Contaminated Baby
`Foods coupled with the misrepresentations alleged herein that were intended to and did, in fact,
`cause consumers like Plaintiff and the members of the Class, to purchase products they would not
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`have if the true quality and ingredients were disclosed or would not have paid a premium price for
`such baby food.
`71.
`As a result of Defendant’s wrongful Marketing, which