Case 4:22-cv-04145-LB Document 1 Filed 07/14/22 Page 1 of 25
`
`
`
`BURSOR & FISHER, P.A.
`L. Timothy Fisher (State Bar No. 191626)
`Sean L. Litteral (State Bar No. 331985)
`Elvia M. Lopez (State Bar No. 331986)
`1990 North California Blvd., Suite 940
`Walnut Creek, CA 94596
`Telephone: (925) 300-4455
`Facsimile: (925) 407-2700
`E-mail: ltfisher@bursor.com
`
` slitteral@bursor.com
`
` elopez@bursor.com
`
`Attorneys for Plaintiff
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`
`
`
`JENILE THAMES, individually and on behalf of
`all others similarly situated,
`
` Plaintiff,
`
`v.
`
`MARS INC.,
`
`
`Case No.
`
`
`CLASS ACTION COMPLAINT
`
`
`JURY TRIAL DEMANDED
`
`
`
` Defendant.
`
`
`
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 4:22-cv-04145-LB Document 1 Filed 07/14/22 Page 2 of 25
`
`
`
`Plaintiff Jenile Thames (“Plaintiff”) brings this action on behalf of himself, and all others
`
`similarly situated against Mars, Inc. (“Defendant”). Plaintiff makes the following allegations
`
`pursuant to the investigation of his counsel and based upon information and belief, except as to the
`
`allegations specifically pertaining to himself, which are based on personal knowledge.
`
`NATURE OF THE ACTION
`
`1.
`
`Plaintiff brings this Class action lawsuit on behalf of himself and similarly situated
`
`consumers (“Class Members”) who purchased for personal, family, or household consumption,
`
`Defendant’s candies sold under the brand name “Skittles” (the “Products”),1 which are unfit for
`
`human consumption because they contain titanium dioxide (“TiO2”), a known toxin. Defendant has
`
`long known of the health problems posed by TiO2. In fact, in February 2016, Defendant publicly
`
`committed to phasing out TiO2. But Defendant has flouted its own promise to consumers. More
`
`than six years later, Defendant continues to sell the Products with TiO2, unbeknownst to reasonable
`
`consumers who purchase the Products.
`
`2.
`
`Interestingly, in its February 2016 press release, Defendant blew smoke, suggesting
`
`that its planned phase out of TiO2 was called for simply because “consumers today are calling on
`
`food manufacturers to use more natural ingredients in their products.” Incredibly, Defendant even
`
`claimed that “[a]rtificial colors pose no known risks to human health or safety.” In doing so,
`
`Defendant concealed from consumers material information it knew. Namely, that numerous of its
`
`competitors and other food manufacturers had long removed the toxin from their product lines
`
`because of scientific research showing that the toxin is unsafe for consumption.
`
`3.
`
`Several nations have banned the harmful toxin. For example, in 2019, the toxin was
`
`banned in France, where Defendant maintains offices and announced that it could and would comply
`
`with France’s law.
`
`4.
`
`In May 2021, the European Food Safety Authority (“EFSA”) released its report on
`
`the health concerns associated with TiO2, determining that TiO2 could not be considered safe for
`
`consumption. Professor Maged Younes, Chair of EFSA’s expert Panel on Food Additives and
`
`
`1 This includes Skittles Original, Skittles Wild Berry, Sour Skittles, Tropical Skittles, and
`Smoothies Skittles, among others.
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`1
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 4:22-cv-04145-LB Document 1 Filed 07/14/22 Page 3 of 25
`
`
`
`Flavourings (“FAF”) underscored these findings, stating that: “Taking into account all available
`
`scientific studies and data, the Panel concluded that titanium dioxide can no longer be considered
`
`safe as a food additive. A critical element in reaching this conclusion is that we could not exclude
`
`genotoxicity concerns after consumption of titanium dioxide particles.”2
`
`5.
`
`Building on EFSA’s research, the European Commission (“EC”) announced that it
`
`too would adopt a ban on the use of TiO2 as a food additive. Under that plan, the ban would apply
`
`following a six-month transition period, and beginning summer 2022, the additive should no longer
`
`be added to food products. That plan was adopted unanimously by Member States.
`
`6.
`
`Defendant—with offices in Netherland, Denmark, Ireland, Italy, Portugal, Germany,
`
`Norway, Czech Republic, Romania, Belgium Switzerland, Austria, Slovakia, Hungary, France,
`
`Greece, and Spain3—and with sales in each of those Member States was reminded of the scientific
`
`findings concerning TiO2 and was required to comply with the EC’s ban.
`
`7.
`
`Nonetheless, in the United States, Defendant maintains sales with TiO2 as an additive,
`
`failing to inform consumers of the implications of consuming the toxin. Instead, Defendant relies
`
`on the ingredient list which is provided in miniscule print on the back of the Products, the reading of
`
`which is made even more challenging by the lack of contrast in color between the font and packaging,
`
`as set out below in a manner in which consumers would normally view the product in the store.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`2 EFSA, “Titanium dioxide: E171 no longer considered safe when used as a food additive,” (May
`6, 2021), https://www.efsa.europa.eu/en/news/titanium-dioxide-e171-no-longer-considered-safe-
`when-used-food-additive.
`3 MARS, “Our Locations,” https://cze.mars.com/en/locations?language_content_entity=en.
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`2
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 4:22-cv-04145-LB Document 1 Filed 07/14/22 Page 4 of 25
`
`
`
`8.
`
`Consequently, consumers who purchase Defendant’s Products are at heightened risk
`
`of a host of health effects for which they were unaware stemming from genotoxicity—the ability of
`
`a chemical substance to change DNA.
`
`9.
`
`Based on Defendant’s omissions, a reasonable consumer would expect that the
`
`Product can be safely purchased and consumed as marketed and sold. However, the Products are not
`
`safe and pose a significant health risk to unsuspecting consumers. Yet, neither before nor at the time
`
`of purchase does Defendant notify consumers like Plaintiff that the Products are unsafe to consumers,
`
`contain heightened levels of titanium dioxide, and should otherwise be approached with caution.
`
`10.
`
`Accordingly, Plaintiff brings his claims against Defendant individually and on behalf
`
`of a class of all others similarly situated for (1) violation of California’s Unfair Competition Law,
`
`Cal. Bus. & Prof. Code § 17200, et seq.; (2) violation of the Consumers Legal Remedies Act, Cal.
`
`Civ. Code § 1750, et seq.; (3) breach of the Implied Warranty under Song-Beverly Consumer
`
`Warranty Act, Cal. Civ. Code § 1792, et seq.; and California Commercial Code § 2314; (4) violation
`
`of California’s False Advertising Law, Cal. Bus. & Prof. Code § 17200, et seq.; (5) Fraud; (6)
`
`Fraudulent Inducement; (7) Fraudulent Omission or Concealment; and (8) Quasi-Contract / Unjust
`
`Enrichment.
`
`PARTIES
`
`11.
`
`Plaintiff Jenile Thames is a natural person and citizen of California who resides in
`
`San Leandro, California. In or around April 11, 2022, Mr. Thames purchased Original Skittles from
`
`a brick-and-mortar QuikStop in San Leandro, California. Prior to his purchase, Mr. Thames
`
`reviewed the labeling, packaging, and marketing materials of the products and saw the false and
`
`misleading claims that, among other things, the Products are safe for human consumption. Mr.
`
`Thames understood these claims to be representations and warranties by Mars, Inc., that the Products
`
`are free from all traces of harmful ingredients. Mr. Thames reasonably relied on these
`
`representations and warranties in deciding to purchase the Products, and these representations were
`
`part of the basis of the bargain in that he would not have purchased the Products or would not have
`
`purchased them on the same terms, if the true facts about its contents had been known. As a direct
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`3
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 4:22-cv-04145-LB Document 1 Filed 07/14/22 Page 5 of 25
`
`
`
`result of Mars Inc.’s material misrepresentations and omissions, Mr. Thames suffered, and continues
`
`to suffer, economic injuries.
`
`12. Mr. Thames remains interested in purchasing candies from Defendant that are safe
`
`for consumption. However, Plaintiff is unable to determine if the Products are actually safe for
`
`consumption. Plaintiff understands that the composition of the Products may change over time. But
`
`as long as Defendant may market the Products as safe for consumption when the Products are not
`
`safe consumption, then when presented with false or misleading information when shopping, he will
`
`be unable to make informed decisions about whether to purchase Defendant’s Products and will be
`
`unable to evaluate the different prices between Defendant’s Products and competitor’s Products.
`
`Plaintiff is further likely to be repeatedly misled by Defendant’s conduct, unless and until Defendant
`
`is compelled to ensure that Products marketed and labeled as safe for consumption, are, in fact, safe
`
`for consumption.
`
`13.
`
`Defendant Mars Inc. is a foreign corporation with its domestic headquarters located
`
`at 9885 Elm Street, McLean, Virginia 22101. Relevant to Plaintiff’s claim herein, Mars is a leading
`
`manufacturer, packager, and distributor of, among other products, candy, and confectionery. Mars
`
`Inc. has done business throughout California and the United States at all times during the Class
`
`Period. At all relevant times, Mars Inc., has advertised, marketed, manufactured, distributed, and/or
`
`sold candy and confectionery, including the Products at issue, to consumers in and throughout
`
`California and the United States. At all relevant times, Mars Inc., formulated, directed, controlled,
`
`had the authority to control, and/or participated in the acts and practices set fourth in this Complaint.
`
`14.
`
`Plaintiffs reserve the right to amend this Complaint and add different products and
`
`additional defendants, including without limitation and officer, director, employee, supplier, or
`
`distributor of Defendant who has knowingly and willfully aided, abetted, and/or conspired in the
`
`false and deceptive conduct alleged herein.
`
`JURISDICTION AND VENUE
`
`15.
`
`This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(d)(2)(A), as
`
`amended by the Class Action Fairness Act of 2005 (“CAFA”), because this case is a class action
`
`where the aggregate claims of all members of the proposed class are in excess of $5,000,000.00,
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`4
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 4:22-cv-04145-LB Document 1 Filed 07/14/22 Page 6 of 25
`
`
`
`exclusive of interest and costs, there are over 100 members of the putative class, and Plaintiffs, as
`
`well as most members of the proposed class, are citizens of different states than Defendant. This
`
`Court has personal jurisdiction over Defendant because it is licensed to do business in California,
`
`has designated an agent for services of process in California, and otherwise conducts substantial
`
`business in California.
`
`16.
`
`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.
`
`17.
`
`Venue is proper in this District pursuant to 28 U.S.C. § 1391 because Defendant does
`
`substantial business in this District and a substantial part of the events giving rise to Plaintiff’s claims
`
`took place within this District and Plaintiff saw and heard Defendant’s advertisements in this District.
`
`FACTUAL ALLEGATIONS
`
`A. Mars’ Candy Skittles
`
`18.
`
`Skittles candy are manufactured, marketed, and sold by Mars Wrigley. The candy is
`
`well-known by its colorful array, which Mars has dubbed “the rainbow” for marketing purposes to
`
`great success. For example, Skittles was “America’s favorite non-chocolate chewy candy in 2017,
`
`with sales in excess of $185 million U.S. dollars.”4
`
`19.
`
`20.
`
`21.
`
`The color of Defendant’s rainbow, however, is due to its use of TiO2.
`
`Significantly, Defendant need not rely on the use of TiO2 to achieve this result.
`
`Numerous of Defendant’s competitors do not use TiO2 in their Products and yet are
`
`able to maintain the colorful impression Defendant hopes to achieve with its Products.
`
`22.
`
`For example, Swedish Fish Soft & Chewy Candy does not rely on TiO2 and yet
`
`achieves a bright red color.
`
`23.
`
`Likewise, Black Forest Gummy Bears does not rely on TiO2 and still strikes an
`
`assortment of colors, including orange, red, yellow, and green.
`
`
`4 Nils-Gerrit Wunsch, Sales of Leading Non-Chocolate Chewy Candy Brands of the United States
`in 2017, STATISTA (Nov. 25, 2020) available at https://www.statista.com/statistics/190409/top-non-
`chocolate-chewy-candy-brands-in-the-united-states/ (last visited June 10, 2022).
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`5
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 4:22-cv-04145-LB Document 1 Filed 07/14/22 Page 7 of 25
`
`
`
`24.
`
`Similarly, Sour Patch Kids does not make use of TiO2 and accomplishes vivid colors
`
`like lime green, yellow, orange, and redberry.
`
`25.
`
`Nerds also achieves bright colors including blue, green, red, and orange without the
`
`use of TiO2.
`
`26.
`
`Indeed, even Defendant has colorful confectionary goods such as its M&Ms product
`
`line that do not rely on TiO2.
`
`B.
`
`27.
`
`Titanium Dioxide is Harmful to Human Health
`
` In February 2016, Defendant alerted the public of its intention to remove TiO2 from
`
`its confectionary products.
`
`28.
`
`Following that announcement, Jaydee Hanson, Senior Policy Analyst at Center for
`
`Food Safety, stated that “We are pleased to see that MARS has taken a positive step toward
`
`eliminating toxic, unnecessary nanomaterials from its line of food products. We urge the company
`
`to speed up the removal of these additives, especially given the grave health concerns associated with
`
`titanium dioxide and other nanoparticles.”
`
`29. Mr. Hanson further stated that “Studies have shown that the human health risks
`
`associated with ingesting nanoparticles of many common food additives far outweigh any utility for
`
`producers. There are plenty of non-toxic alternatives available and we urge MARS and others to
`
`commit to not using any engineered nanomaterials in human and animal food products.”
`
`30.
`
`Defendant’s public statements built on efforts by other large food companies to
`
`remove TiO2 from their products. In March 2015, for example, Dunkin Donuts announced that it
`
`would no longer use TiO2.
`
`31.
`
`The reason for eliminating titanium dioxide is simple: TiO2—which is used in paints,
`
`coatings, adhesives, plastics, printing inks, and roofing materials—has demonstrated an ability to
`
`pass through biological membranes, circulate through the body, and enter cells. Research shows that
`
`the effects are serious, including DNA and chromosomal damage, organ damage, inflammation,
`
`brain damage, genital malformations, lesions in the liver and kidneys, and cell neurosis.
`
`32.
`
`Titanium dioxide also builds up in the body’s intestinal tract. Ordinarily, the intestinal
`
`track serves to absorb nutrients for the body. However, titanium dioxide cannot be absorbed. When
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`6
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 4:22-cv-04145-LB Document 1 Filed 07/14/22 Page 8 of 25
`
`
`
`this occurs, the body’s M-Cells absorb these particles and bring them to the innate immune system.
`
`Overtime, the titanium dioxide particles are incorporated by the innate immune system cells where
`
`they will remain without being degraded or dissolved.
`
`33.
`
`In 2019, the French government responded to these troubling findings by banning all
`
`foods containing titanium dioxide. This ban took effect in January 2020.
`
`34.
`
`At that time, Defendant’s subsidiary, Mars Wrigley Confectionary France, confirmed
`
`that it could and would comply with the law.
`
`35.
`
` Later that year, in October 2020, the European Parliament removed titanium dioxide
`
`from the list of food additives authorized by the European Union for human consumption. European
`
`researchers studying titanium dioxide noted that the long half-lives of titanium dioxide nanoparticles
`
`created the potential for the particles to accumulate inside human organs and tissue. European
`
`researchers also determined that titanium dioxide nanoparticles could cause DNA strands to break,
`
`leading to chromosomal damage.
`
`C.
`
`36.
`
`Defendant’s Omissions Concerning TiO2 is Actionable
`
`Despite its February 2016 commitment to U.S. consumers and its apparent
`
`compliance with the laws of the European Commission, Defendant has endangered U.S. consumers,
`
`exposing them to TiO2, which Defendant knows carries significant health concerns. It also failed to
`
`tell consumers that contrary to its earlier representations, it did not remove TiO2.
`
`37.
`
`As a result, Plaintiff and the Class were injured by the full purchase price of the
`
`Products because the Products are worthless, as they are marketed as safe for human consumption
`
`when they are not in fact safe for human consumption.
`
`38.
`
`Plaintiff and Class Members bargained for products that are safe for consumption and
`
`were deprived of the basis of their bargain when Defendant sold them Products in packaging
`
`containing dangerous substances with serious health consequences.
`
`39.
`
`No reasonable consumer would expect that the Products marketed as safe for human
`
`consumption would pose a risk to their health, safety, and well-being, or that it would contain TiO2,
`
`which is linked to harmful health effects in humans. Accordingly, Plaintiff and Class Members
`
`suffered economic injuries as a result of purchasing the Products.
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`7
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 4:22-cv-04145-LB Document 1 Filed 07/14/22 Page 9 of 25
`
`
`
`40.
`
`As the Products expose consumers to a substance that pose a risk to consumers’
`
`health, the Products are not fit for consumption by humans. Plaintiff and the Class are further entitled
`
`to damages for the injury sustained in being exposed to TiO2, damages related to Defendant’s
`
`conduct, and injunctive relief.
`
`41. Moreover, because these facts relate to a critical safety-related deficiency in the
`
`Products, Defendant was under a continuous duty to disclose to Plaintiff and Class Members the true
`
`standard, quality, and grade of the Products and to disclose that the Products contained substances
`
`known to have adverse health effects. Nonetheless, Defendant concealed and misrepresented this
`
`information, as discussed herein.
`
`42.
`
`Although Defendant is in the best position to know what content it placed on its
`
`packaging during the relevant timeframe, and the knowledge that Defendant had regarding the
`
`presence of TiO2, and its failure to warn consumers that the Products contained TiO2, to the extent
`
`necessary, Plaintiff satisfies the requirements of Rule 9(b) by alleging the following facts with
`
`particularity:
`
`43. WHO: Defendant made material omissions of fact about the Products through its
`
`labeling which shows that the Products are safe for human consumption. These representations
`
`constitute omitted material information regarding harmful chemicals.
`
`44. WHAT: Defendant’s conduct here was, and continues to be, fraudulent because it
`
`omitted and concealed that the Products contain a substance—TiO2—that is widely known to have
`
`significant health repercussions. Thus, Defendant’s conduct deceived Plaintiff and Class Members
`
`into believing that the Products are safe for human consumption when they are not. Defendant knew
`
`or should have known that this information is material to reasonable consumers, including Plaintiff
`
`and Class Members in making their purchasing decisions, yet they continued to pervasively market
`
`the Product in this manner in the U.S. market.
`
`45. WHEN: Defendant made material omissions during the putative class periods,
`
`including prior to and at the time Plaintiff and Class Members purchased the Products, despite its
`
`knowledge that the Products’ packaging contained TiO2, a harmful substance with known adverse
`
`health effects.
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`8
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 4:22-cv-04145-LB Document 1 Filed 07/14/22 Page 10 of 25
`
`
`
`46. WHERE: Defendant’s marketing message was uniform and pervasive, carried
`
`through material omissions on the labeling of the Product’s packaging, website, and through
`
`marketing materials.
`
`47. HOW: Defendant made material omissions of fact regarding the Products, including
`
`the presence of TiO2 in the Products.
`
`48. WHY: Defendant made the material omissions detailed herein for the express
`
`purpose of inducing Plaintiff, Class Members, and all reasonable consumers to purchase and/or pay
`
`for the Products, the effect of which was that Defendant profited by selling the Products to hundreds
`
`of thousands of consumers.
`
`49.
`
`INJURY: Plaintiff and Class Members purchased, paid a premium (up to the full-
`
`price), or otherwise paid more for the Products when they otherwise would not have absent
`
`Defendant’s omissions.
`
`CLASS ALLEGATIONS
`
`50.
`
`Class Definition.
`
`Plaintiffs bring this action on behalf of a class of similarly
`
`situated individuals, defined as all persons in the United States who, within the applicable statute of
`
`limitations period, up to and including the date of final judgement in this action, purchased any of
`
`Defendant’s Products at issue (the “Class”)
`
`(a)
`
`California Subclass. Plaintiff Jenile Thames also seeks to represent a
`
`subclass of all Class members who within the applicable statutes of limitations period, up to and
`
`including the date of final judgement in this action, purchased any of the Products at issue in
`
`California (the “California Subclass”).
`
`51.
`
`Excluded from the Class and Subclasses are persons who made such purchase for
`
`purpose of resale, Defendant and any entities in which Defendant has a controlling interest,
`
`Defendant’s agents and employees, the judge to whom this action is assigned, and members of the
`
`judge’s staff, and the judge’s immediate family.
`
`52.
`
`Plaintiff reserves the right to amend the definition of the Class and Subclass if
`
`discovery or further investigation reveals that the Class or Subclass should be expanded or otherwise
`
`modified.
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`9
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 4:22-cv-04145-LB Document 1 Filed 07/14/22 Page 11 of 25
`
`
`
`53.
`
`Numerosity. Members of the Class and Subclass are so numerous that their
`
`individual joinder herein is impracticable. On information and belief, members of the Class and
`
`Subclass number in the millions. The precise number of Class members and their identities are
`
`unknown to Plaintiff at this time but may be determined though discovery. Class members may be
`
`notified of the pendency of this action by mail and/or publications through the distribution records
`
`of Defendant and third-party retailers and vendors.
`
`54.
`
`Commonality and Predominance. Common questions of law and fact exist as to all
`
`Class members and predominate over questions affecting only individual Class members. Common
`
`legal and factual questions include but are not limited to: whether Defendant warranted the Products
`
`as “Safe for Human Consumption”; whether the Products contain Titanium Dioxide; whether
`
`Defendant breached these warranties; and whether Defendant committed the statutory and common
`
`law violations alleged against them herein by doing so.
`
`55.
`
`Typicality.
`
`The claims of the named Plaintiff is typical of the claims of the Class
`
`in that Plaintiffs purchased one of Defendant’s Products in reliance on the presentations and
`
`warranties described above and suffered a loss as a result of that purchase.
`
`56.
`
`Adequacy.
`
`Plaintiff is an adequate representative of the Class and respective
`
`Subclass because his interest does not conflict with the interests of the Class and Subclass members
`
`he seeks to represent, he has retained competent counsel experienced in prosecuting class actions,
`
`and they intend to prosecute this action vigorously. The interests of the Class and Subclass members
`
`will be fairly and adequately protected by Plaintiffs and their counsel.
`
`57.
`
`Superiority. The class mechanism is superior to other available means for the fair
`
`and efficient adjudication of the claims of Class members. Each individual Class members may lack
`
`the resources to undergo the burden and expense of individual prosecution of the complex and
`
`extensive litigation necessary to establish Defendant’s liability. Individualized litigation increases
`
`the delay and expense of all parties and multiplies the burden on the judicial system presented by the
`
`complex legal and factual issues of the case. Individualized litigation also presents a potential for
`
`inconsistent or contradictory judgments. In contrast, the class action device presents far fewer
`
`management difficulties and provides the benefits of single adjudication, economy of scale, and
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`10
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 4:22-cv-04145-LB Document 1 Filed 07/14/22 Page 12 of 25
`
`
`
`comprehensive supervision by a single court on the issue of Defendant’s liability. Class treatment
`
`of the liability issue will ensure that all claims and claimants are before this Court for consistent
`
`adjudication of liability issues.
`
`58.
`
`Defendant has acted or failed to act on grounds generally applicable to the Class,
`
`thereby making appropriate final injunctive relief with respect to the Class and Subclass as a whole.
`
`59. Without a class action, Defendant will continue a course of action that will result in
`
`further damages to Plaintiff and members of the Class and Subclass and will likely retain the benefits
`
`of its wrongdoing.
`
`60.
`
`Based on the foregoing allegations, Plaintiff’s claims for relief include those set forth
`
`below.
`
`COUNT I
`Violation of California’s Unfair Competition Law,
`Cal. Bus. & Prof. Code §§ 17200, et seq.
`
`61.
`
`62.
`
`63.
`
`Plaintiff realleges and reincorporates by reference all paragraphs alleged above.
`
`Plaintiff brings this claim individually and on behalf of the Class against Defendant.
`
`California Business and Professions Code § 17200 prohibits “any unlawful, unfair, or
`
`fraudulent business act or practice.” For the reasons discussed above, Defendant has engaged in
`
`unlawful, unfair, and fraudulent business acts or practices in violation of California Business &
`
`Professions Code § 17200.
`
`64.
`
`By committing the acts and practices alleged herein, Defendant has violated
`
`California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200-17210, as to the
`
`Class, by engaging in unlawful, fraudulent, and unfair conduct.
`
`65.
`
`Defendant has violated the UCL’s proscription against engaging in Unlawful
`
`Business Practices as a result of its violations of the CLRA, Cal. Civ. Code § 1770(a)(5), (a)(7), and
`
`(a)(9) as alleged below, violations of California’s Song-Beverly Act, and violations of California’s
`
`False Advertising Law, in addition to breaches of warranty and violations of common law.
`
`66.
`
`As more fully described above, Defendant’s misleading marketing, advertising,
`
`packaging, and labeling of the Product is likely to deceive reasonable consumers. In addition,
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`11
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 4:22-cv-04145-LB Document 1 Filed 07/14/22 Page 13 of 25
`
`
`
`Defendant has committed unlawful business practices by, inter alia, making the omissions of material
`
`facts, as set forth more fully herein, and violating the common law.
`
`67.
`
`Plaintiff and the Class Members reserve the right to allege other violations of law
`
`which constitute other unlawful business acts or practices.
`
`68.
`
`Defendant has also violated the UCL’s proscription against engaging in Unfair
`
`Business Practices. Defendant’s acts, omissions, misrepresentations, practices and non-disclosures
`
`as alleged herein also constitute “unfair” business acts and practices within the meaning of Business
`
`& Professions Code § 17200 et seq. in that its conduct is substantially injurious to consumers, offends
`
`public policy, and is immoral, unethical, oppressive, and unscrupulous as the gravity of the conduct
`
`outweighs any alleged benefits attributable to such conduct.
`
`69.
`
`There were reasonably available alternatives to further Defendant’s legitimate
`
`business interests, other than the conduct described herein.
`
`70.
`
`Defendant has further violated the UCL’s proscription against engaging in
`
`Fraudulent Business Practices. Defendant’s claims, nondisclosures and misleading statements
`
`with respect to the Product, as more fully set forth above, were false, misleading and/or likely to
`
`deceive the consuming public within the meaning of Business & Professions Code § 17200.
`
`71.
`
`Plaintiff and the other Class Members suffered a substantial injury by virtue of buying
`
`the Products that they would not have purchased absent Defendant’s unlawful, fraudulent, and unfair
`
`marketing, advertising, packaging, and omission about the defective nature of the Products.
`
`72.
`
`There is no benefit to consumers or competition from deceptively marketing and
`
`omitting material facts about the true nature of the Products.
`
`73.
`
`Plaintiff and the other Class Members had no way of reasonably knowing that the
`
`Products they purchased were not as marketed, advertised, packaged, or labeled. Thus, they could
`
`not have reasonably avoided the injury each of them suffered.
`
`74.
`
`The gravity of the consequences of Defendant’s conduct as described outweighs any
`
`justification, motive, or reason therefore, particularly considering the available legal alternatives
`
`which exist in the marketplace, and such conduct is immoral, unethical, unscrupulous, offends
`
`established public policy, or is substantially injurious to Plaintiff and the other Class Members.
`
`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`
`
`
`
`12
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 4:22-cv-04145-LB Document 1 Filed 07/14/22 Page 14 of 25
`
`
`
`75.
`
`Pursuant to California Business and Professional Code § 17203, Plaintiff and the
`
`Class seek an order of this Court that includes, but is not limited to, an order requiring Defendant to
`
`(a) provide restitution to Plaintiff and the other Class Members; (b) disgorge all revenues obtained
`
`as a result of violations of the UCL; and (c) pay Plaintiff’s and Class members’ attorneys’ fees and
`
`costs.
`
`76.
`
`Here, equitable relief is appropriate because Plaintiff may lack an adequate remedy at
`
`law, if, for instance damages resulting from his purchase of the Products is determined to be an
`
`amount less than the premium price of the Product. Without compensation for the full premiu