Case 5:21-cv-01202-EJD Document 1 Filed 02/18/21 Page 1 of 28
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`
`
`Jonathan Shub (CA Bar No. 237708)
`Kevin Laukaitis
`SHUB LAW FIRM LLC
`134 Kings Highway East, 2nd Floor
`Haddonfield, NJ 08033
`Tel: 856-772-7200
`jshub@shublawyers.com
`klaukaitis@shublawyers.com
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`Attorneys for Plaintiffs and the Proposed Class
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`[Additional counsel listed on signature page]
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`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`
`ANKUSH PURI, on behalf of themselves and all
`others similarly situated,
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` Case No.
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`Plaintiff,
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` v.
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`COSTCO WHOLESALE CORPORATION,
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`JURY TRIAL DEMANDED
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`CLASS ACTION COMPLAINT
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`Defendant.
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`Case 5:21-cv-01202-EJD Document 1 Filed 02/18/21 Page 2 of 28
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`Plaintiff, by attorneys, alleges upon information and belief, except for allegations
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`pertaining to plaintiff, which are based on personal knowledge:
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`1.
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`Costco Wholesale Corporation (“defendant”) manufactures, distributes, markets,
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`labels and sells ice cream bars purported to be dipped in chocolate and almonds, under the
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`Kirkland Signature brand (“Product”).
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`2.
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`The Product is available to consumers from defendant's retail stores and is sold in
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`boxes of 18 bars (55.8 OZ).
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`3.
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`The relevant representations include “Kirkland Signature,” “Ice Cream Bars,”
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`“Chocolate Almond Dipped Vanilla,” a picture of the product and pieces of chocolate, vanilla
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`beans, a vanilla flower and whole almonds:
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`4.
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`The unqualified, prominent and conspicuous front label representations of the
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`chunks of chocolate, the chocolate almond coating of the Product and the statement “Chocolate
`CLASS ACTION COMPLAINT
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`Case 5:21-cv-01202-EJD Document 1 Filed 02/18/21 Page 3 of 28
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`Almond Dipped” are false, deceptive and misleading because the “chocolate” consists mainly of
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`ingredients consumers do not expect in chocolate – vegetable oils.
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`5.
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`Chocolate is made from cacao beans, which are not consumed by themselves – they
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`are subject to fermentation, drying and roasting, which produces cacao nibs.
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`6.
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`The nibs are then ground to produce cocoa mass or chocolate liquor, which is
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`separated into components of cocoa solids and cocoa butter.
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`7.
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`Consumers want chocolate in chocolate products to come from a real source, i.e.,
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`from cacao beans.
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`8.
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`Chocolate provides greater satiety and a creamy and smooth mouthfeel compared
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`to other ingredients which substitute for chocolate, like vegetable oils.
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`9.
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`Vegetable oils provide less satiety than chocolate, a waxy and oily mouthfeel and
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`leave an aftertaste.
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`10. Cocoa butter makes up about one-fourth of chocolate but costs more than three
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`times as much as vegetable oil.
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`11. However, the taste is not the same since even a small amount of vegetable oil
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`changes the mouthfeel from creamy and smooth to waxy and oily.
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`12. These sensations are the opposite of what consumers associate chocolate’s taste
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`with.
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`13. Numerous studies have indicated that chocolate may be beneficial to the heart and
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`arteries because of flavonoids, plant compounds from the cacao bean that contain antioxidants.
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`14. These flavonoids are activated when the cacao bean is transformed into cocoa
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`butter.
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`15. Additionally, cocoa butter does not raise cholesterol or have any artery-clogging
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`Case 5:21-cv-01202-EJD Document 1 Filed 02/18/21 Page 4 of 28
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`trans-fats which are present in vegetable oils
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`16. Though cocoa butter and vegetable oils both contain fat, the fat in cocoa butter is
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`unsaturated and relatively healthy for the heart, in contrast to saturated fats in vegetable oils.
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`17. Consumption of vegetable oil is known to result in numerous health problems, like
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`increased chances of heart disease.
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`18. Cocoa butter contains antioxidant and its consumption in chocolate does not raise
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`the levels of cholesterol the way vegetable oils do.
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`19.
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`In a chocolate compound, chocolate liquor is replaced with cocoa powder, and
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`cocoa butter with vegetable oil.
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`20. From the time chocolate was first made, companies have adulterated chocolate
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`products with synthetics and substitutes such as cheaper, lower quality vegetable oils.
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`21. According to “Adulteration – The Dark World of ‘Dirty’ Chocolate,” “mixing
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`unnatural ingredients with chocolate – with the intent of extending the quantity of raw product
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`and defrauding customers – has a long history.”1
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`22. As a valuable food, chocolate has always been vulnerable to being “extended” with
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`lower quality components.
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`23. Since consumers were constantly being misled by chocolate products that contained
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`little actual chocolate, Congress directed the Food and Drug Administration (“FDA”) to establish
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`standards and rules to combat the marketing of foods from which traditional constituents are
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`removed or new or different (often cheaper and artificial) ingredients are substituted.
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`1 Chapter 47 in Chocolate – History, Culture, Heritage.
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`Case 5:21-cv-01202-EJD Document 1 Filed 02/18/21 Page 5 of 28
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`24. Chocolate was one of these foods, and the standards effectively stopped companies
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`from substituting lower quality, cheaper ingredients like vegetable oils for chocolate ingredients.
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`See 21 C.F.R. § 163.123 (Sweet chocolate.), 21 C.F.R. § 163.124 (White chocolate), 21 C.F.R.
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`§ 163.130 (“milk chocolate”); 21 C.F.R. § 163.135 (Buttermilk chocolate.)
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`25. For example, the optional ingredients in milk chocolate include cacao fat, nutritive
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`carbohydrate sweeteners, spices, natural and artificial flavorings, dairy ingredients and
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`emulsifying agents but not vegetable oils. 21 C.F.R. § 163.124(b).
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`26. These requirements prevented foods from being labeled with the unqualified
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`designation of “chocolate” if their main ingredients were anything other than chocolate liquor
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`and cocoa butter.
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`27. The chocolate standards have been in place for over fifty (50) years, and
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`companies’ adherence to these regulations have benefitted consumers who otherwise would not
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`be able to rely on a product’s representations.
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`28. These regulations effectively established custom and practice so that consumers’
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`experience with that custom and practice primes them to infer from a product’s labeling whether
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`a product contains chocolate or is a chocolate mixture (compound) which contains vegetable
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`oils.
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`29. Over ten years ago in response to a proposal to modify the chocolate standards to
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`allow vegetable oils, industry leader Mars Wrigley was adamant in its opposition, because it
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`recognized what consumers wanted:
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`Case 5:21-cv-01202-EJD Document 1 Filed 02/18/21 Page 6 of 28
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`At Mars, the consumer is our boss, and American consumers are passionate
`about chocolate. They don’t want anyone to change the chocolate they’ve
`enjoyed for generations…As a privately held company, we have the
`freedom to invest in the highest quality chocolate and deliver what
`consumers want.2
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`30. This opinion is consistent with a consumer survey of over four hundred Americans
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`across demographic groups, in which more than two-thirds of respondents who viewed
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`Defendant’s front label – chocolate pieces, chocolate almond coating and the term “Chocolate
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`Almond Dipped” – expected the Product would only contain chocolate and not contain any
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`vegetable oils.
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`31. These consumers will not feel they need to double check the ingredient list because
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`the lack of any front label qualifying terms gives them the impression that the Product’s coating
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`is a traditional chocolate coating.
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`32. However, the front label representations of solid chunks of chocolate, a chocolate
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`covered ice cream bar and the words “Chocolate Almond Dipped,” are very misleading and at
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`best, a “half-truth,” because the chocolate part of the Product contains ingredients not found in
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`real chocolate – “Coconut Oil” and “Soybean Oil.”:
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`2 Mars US Announces Support for Current Chocolate Standard of Identity, Press Release, September 17, 2007.
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`Case 5:21-cv-01202-EJD Document 1 Filed 02/18/21 Page 7 of 28
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`INGREDIENTS:
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`ICE CREAM: Cream, Milk, Nonfat Milk,
`Sugar, Egg Yolk, Vanilla Extract.
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`FLAVORED
`CHOCOLATE
`MILK
`COATING WITH ALMONDS: Coating
`(Sugar, Coconut Oil, Nonfat Dry Milk,
`Unsweetened Chocolate, Soybean Oil,
`Unsweetened Chocolate Processed With
`Alkali, Soy Lecithin), Roasted Almonds
`(Almonds, Cottonseed Oil).
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`Case 5:21-cv-01202-EJD Document 1 Filed 02/18/21 Page 8 of 28
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`33.
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`In fact, the Product has more vegetable oil than chocolate, based on the listing of
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`ingredients in descending order of predominance by weight on the ingredient list.
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`34. That the Product contains more coconut oil is evident because it is the second most
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`predominant ingredient, ahead of “unsweetened chocolate,” the fourth most predominant.
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`35. The Product contains more soybean oil, the fifth most predominant ingredient, than
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`“unsweetened chocolate processed with alkali,” the sixth most predominant, meaning there is
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`more soybean oil than the second chocolate ingredient.
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`36. The combined total of coconut oil and soybean oil exceeds the amount of the two
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`chocolate ingredients.
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`37. The Product’s ingredient list misidentifies the sixth ingredient, “unsweetened
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`chocolate processed with alkali.”
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`38. While chocolate may be processed with alkali, it is likely that this ingredient
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`actually refers to unsweetened cocoa that is processed with alkali.
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`39. This means that amount of vegetable oil exceeds the amount of chocolate by an
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`even greater amount.
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`40. When compound chocolate, as here, is used, the two main ingredients found in real
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`chocolate are substituted – chocolate liquor with cocoa powder and cocoa butter with vegetable
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`oil.
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`41. Though the ingredient list describes the Product as consisting of a “Milk Chocolate
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`Flavored Coating With Almonds,” this is not stated on the front label where consumers are
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`primed to take note of this.
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`42.
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`In fact, the average consumer spends fifteen seconds deciding to purchase a specific
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`product, which is why the front label is the most significant place to tell consumers what they
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`Case 5:21-cv-01202-EJD Document 1 Filed 02/18/21 Page 9 of 28
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`are buying.
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`43. Moreover, even the name Defendant ascribes to the Product’s coating of “Milk
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`Chocolate Flavored Coating With Almonds,” is false, misleading and inaccurate.
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`44. Calling a product “chocolate flavored” is in error where such a product contains
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`some chocolate, as the Product does here.
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`45. The name of “chocolate flavored” is appropriate where consumers do not expect a
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`product to contain a real chocolate ingredient and where the food is flavored with cocoa.
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`46. For instance, chocolate pudding will not have chocolate, because consumers have
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`long recognized this is a product with a chocolate flavor.
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`47. However, a chocolate bar is expected to be made from chocolate and cannot be
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`made from cocoa without being labeled as a " chocolate flavored" or "chocolate flavored" candy.
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`48. Defendant’s Product’s coating purports to be made from chocolate and only
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`chocolate, so describing it as “milk chocolate flavored” is incorrect but especially misleading.
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`49.
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`It is misleading because “milk chocolate flavored” omits that it contains more
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`vegetable oils than chocolate ingredients.
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`50. The Product’s coating should be identified as “milk chocolate and vegetable oil
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`coating” on the front label and ingredient list, which would tell consumers what they are buying.
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`See 21 C.F.R. § 163.155(c) (“Alternatively, the common or usual name of the vegetable derived
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`fat ingredient may be used in the name of the food, e.g., “milk chocolate and ___ oil coating”,
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`the blank being filled in with the common or usual name of the specific vegetable fat used.”).
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`51. Consumers do not expect to have to resort to the fine print on a product’s ingredient
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`list to find information they are accustomed to seeing on the front label.
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`52. Defendant’s branding and packaging of the Product is designed to – and does –
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`Case 5:21-cv-01202-EJD Document 1 Filed 02/18/21 Page 10 of 28
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`deceive, mislead, and defraud plaintiff and consumers.
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`53. Defendant sold more of the Product and at higher prices than it would have in the
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`absence of this misconduct, resulting in additional profits at the expense of consumers like
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`plaintiff.
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`54. The value of the Product that plaintiff purchased and consumed was materially less
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`than its value as represented by defendant.
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`55. Had plaintiff and class members known the truth, they would not have bought the
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`Product or would have paid less for them.
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`56. As a result of the false and misleading labeling, the Product is sold at a premium
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`price, approximately no less than $10.99 per box of 18 bars, excluding tax, compared to other
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`similar products represented in a non-misleading way.
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`57. Plaintiff seeks damages and an injunction to stop Defendant’s false and misleading
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`marketing practices with regards to the Product.
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`JURISDICTION AND VENUE
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`58.
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`Jurisdiction is proper pursuant to 28 U.S.C. § 1332(d)(2) (Class Action Fairness
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`Act of 2005 or “CAFA”).
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`59. Under CAFA, district courts have original federal jurisdiction over class actions
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`involving (1) an aggregate amount in controversy of at least $5,000,000; and (2) minimal
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`diversity.
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`60. Plaintiff seeks to represent a class of citizens of California. Diversity is established
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`because under CAFA, members of the proposed class are citizens of California, which is a
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`different state than defendant, Washington. 28 U.S.C. § 1332(d)(2)(A).
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`61. Defendant Costco Wholesale Corporation is a Washington corporation with a
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`Case 5:21-cv-01202-EJD Document 1 Filed 02/18/21 Page 11 of 28
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`principal place of business in Issaquah, King County, Washington and is a citizen of
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`Washington.
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`62. This court has personal jurisdiction over defendant because it conducts and
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`transacts business, contracts to supply and supplies goods within California.
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`63. Venue is proper in this judicial district because plaintiff Rhoden (1) purchased the
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`Product, (2) resides in this district, and (3) became aware of the events or omissions giving rise
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`to the claims in this district. See 28 U.S.C. § 1391(b)(2).
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`64. Plaintiff is a resident of the County of Santa Clara, California.
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`PARTIES
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`65. Defendant Costco Wholesale Corporation is a Washington corporation with a
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`principal place of business in Issaquah, Washington, King County.
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`66. During the relevant statutes of limitations, plaintiff purchased the Product within
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`her district and/or State for personal consumption and/or use in reliance on the representations
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`the Product contained chocolate, understood to specifically exclude vegetable oils and vegetable
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`fats.
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`67. Plaintiff bought the Product multiple times over the past three years because she
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`liked the product type for its intended use and expected the coating to contain and be made with
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`only chocolate and not substitute or lower quality ingredients, viz, vegetable oils.
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`68. Plaintiff’s purchases are recorded in Defendant’s database.
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`69. Plaintiff would buy the Product again if assured it only contained a chocolate
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`coating.
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`INTRADISTRICT ASSIGNMENT
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`70. Pursuant to Civil Local Rule 3-2(c-d), a substantial part of the events giving rise to
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`Case 5:21-cv-01202-EJD Document 1 Filed 02/18/21 Page 12 of 28
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`the claims herein arose in Santa Clara County, California, and this action should be assigned to
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`the San Jose Division.
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`CLASS ACTION ALLEGATIONS
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`71. Plaintiff brings this action as a class action pursuant to Rule 23 of the Federal Rules
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`of Civil Procedure.
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`72. The class that Plaintiff seeks to represent (the “Class”) is composed of and defined
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`as follows:
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`73. All persons residing in California who have purchased the Product for their own
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`use (which includes feeding their families), and not for resale during the applicable statute of
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`limitations period. Excluded from the Class are: governmental entities; Defendant; any entity in
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`which Defendant has a controlling interest; Defendant’s officers, directors, affiliates, legal
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`representatives, employees, co-conspirators, successors, subsidiaries, and assigns; and, any
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`judge, justice, or judicial officer presiding over this matter and the members of their immediate
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`families and judicial staff.
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`74. For the purposes of this Complaint, the term “Class Members” refers to all members
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`of the Class, including the Plaintiff.
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`75. Plaintiff reserves the right to redefine the Class, and/or requests for relief.
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`76. This action is maintainable as a class action under Federal Rules of Civil Procedure
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`Rule 23(a), and (b)(2) and (b)(3).
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`77. Numerosity. The Class consists of thousands of persons throughout the State of
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`California. The Class is so numerous that joinder of all members is impracticable, and the
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`disposition of their claims in a class action will benefit the parties and the Court.
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`78. Commonality and Predominance. The questions of law and fact common to the
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`Case 5:21-cv-01202-EJD Document 1 Filed 02/18/21 Page 13 of 28
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`Class have the capacity to generate common answers that will drive resolution of this action.
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`They predominate over any questions affecting only individual class members. Common
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`questions of law and fact include, but are not limited to, the following:
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`79. Whether Defendant contributed to, committed, or is responsible for the conduct
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`alleged herein;
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`80. Whether Defendant’s conduct constitutes the violations of law alleged herein;
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`81. Whether Defendant acted willfully, recklessly, negligently, or with gross
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`negligence in the violations of laws alleged herein;
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`82. Whether Class Members are entitled to injunctive relief; and
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`83. Whether Class Members are entitled to restitution and damages.
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`84. By seeing the name, labeling, display and marketing of the Product, and by
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`purchasing the Product, all Class Members were subject to the same wrongful conduct.
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`85. Absent Defendant’s material deceptions, misstatements and omissions, Plaintiff
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`and other Class members would not have purchased the Product.
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`86. Typicality. Plaintiff’s claims are typical of the claims of the Class, respectively,
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`because she purchased the Product and was injured thereby. The claims of Plaintiff and other
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`Class Members are based on the same legal theories and arise from the same false, misleading
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`and unlawful conduct.
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`87. Adequacy. Plaintiff is an adequate representative of the Class because her interests
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`do not conflict with those of other Class Members. Each Class Member is entitled to damages
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`reflecting a similar and discrete purchase or purchases that each Class Member made. Plaintiff
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`has retained competent and experienced class action counsel, who intend to prosecute this action
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`vigorously. The Class Members’ interests will be fairly and adequately protected by Plaintiff and
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`Case 5:21-cv-01202-EJD Document 1 Filed 02/18/21 Page 14 of 28
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`her counsel.
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`88. Superiority. A class action is superior to other available methods for the fair and
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`efficient adjudication of this controversy, because joinder of all Class Members is impracticable.
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`The amount at stake for each consumer, while significant, is such that individual litigation would
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`be inefficient and cost-prohibitive. Plaintiff anticipates no difficulty in the management of this
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`action as a class action.
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`89. This Court should certify a class under Rule 23(b)(2) and (b)(3) because Defendant
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`has acted or refused to act on grounds that apply generally to the Class, by making illegal, unfair,
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`misleading and deceptive representations and omissions regarding the Product.
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`90. Notice to the Class. Plaintiff anticipates that this Court can direct notice to the
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`Class, to be effectuated by publication in major media outlets and the Internet.
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`FIRST CLAIM
`(ON BEHALF OF THE CALIFORNIA CLASS)
`(Violation of California Business & Professions Code §§ 17200 et seq. –
`Unlawful conduct Prong of the UCL)
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`91. Plaintiff incorporates by reference all allegations contained in the complaint as if
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`fully set forth herein. California Business & Professions Code section 17200 (“UCL”) prohibits
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`any “unlawful, unfair or fraudulent business act or practice.”
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`92. The acts, omissions, misrepresentations, practices, and non-disclosures of
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`Defendant, as alleged herein, constitute “unlawful” business acts and practices in that they
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`violate the Federal Food, Drug, and Cosmetic Act (“FFDCA”) and its implementing regulations,
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`including, at least, the following sections:
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`i. 21 U.S.C. § 343, which deems food misbranded when the label contains a
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`statement that is “false or misleading in any particular,” with “misleading”
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`defined
`to “take[]
`CLASS ACTION COMPLAINT
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`into account (among other
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`Case 5:21-cv-01202-EJD Document 1 Filed 02/18/21 Page 15 of 28
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`representations made or suggested by statement, word, design, device, or
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`any combination thereof, but also the extent to which the labeling or
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`advertising fails to reveal facts material”;
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`ii. 21 U.S.C. § 321(n), which states the nature of a false and misleading
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`advertisement;
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`iii. 21 C.F.R. § 101.18(b), which prohibits true statements about ingredients
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`that are misleading in light of the presence of other ingredients;
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`iv. 21 C.F.R § 101.22(i), which sets forth a framework to truthfully identify the
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`source of a product’s flavor; and
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`v. 21 C.F.R. § 102.5 which prohibits misleading common or usual names.
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`93. Defendant’s conduct is further “unlawful” because it violates the California False
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`Advertising Law (“FAL”) and the Consumer Legal Remedies Act (“CLRA”), as discussed in
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`the claims below.
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`94. Defendant’s conduct also violates the California Sherman Food, Drug, and
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`Cosmetic Law, Cal. Health & Saf. Code section 109875, et seq. (“Sherman Law”), including, at
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`least, the following sections:
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`i. Section 110100 (adopting all FDA regulations as state regulations);
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`ii. Section 110290 (“In determining whether the labeling or advertisement of
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`a food … is misleading, all representations made or suggested by statement,
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`word, design, device, sound, or any combination of these, shall be taken into
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`account. The extent that the labeling or advertising fails to reveal facts
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`concerning the food … or consequences of customary use of the food …
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`shall also be considered.”);
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`Case 5:21-cv-01202-EJD Document 1 Filed 02/18/21 Page 16 of 28
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`iii. Section 110390 (“It is unlawful for any person to disseminate any false
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`advertisement of any food…. An advertisement is false if it is false or
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`misleading in any particular.”);
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`iv. Section 110395 (“It is unlawful for any person to manufacture, sell, deliver,
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`hold, or offer for sale any food … that is falsely advertised.”);
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`v. Section 110398 (“It is unlawful for any person to advertise any food, drug,
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`device or cosmetic that is adulterated or misbranded.”);
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`vi. Section 110400 (“It is unlawful for any person to receive in commerce any
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`food … that is falsely advertised or to deliver or proffer for delivery any
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`such food….”); and
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`vii. Section 110660 (“Any food is misbranded if its labeling is false or
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`misleading in any particular.”).
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`95. Each of the challenged statements made and actions taken by Defendant violates to
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`FFDCA, the CLRA, the FAL, and the Sherman Law, and therefore violates the “unlawful” prong
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`of the UCL.
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`96. Defendant leveraged its deception to induce Plaintiff and members of the Class to
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`purchase products that were of lesser value and quality than advertised. Defendant’s deceptive
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`advertising caused Plaintiff and members of the Class to suffer injury in fact and to lose money
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`or property, as it denied them the benefit of the bargain when they decided to purchase the
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`Product over other products that are less expensive, and contain virtually the same or
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`immaterially different amounts of cocoa and chocolate.
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`97. Had Plaintiff and the members of the Class been aware of Defendant’s false and
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`misleading advertising tactics, they would not have purchased the product at all or would have
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`Case 5:21-cv-01202-EJD Document 1 Filed 02/18/21 Page 17 of 28
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`paid less than what they did for it.
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`98.
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`In accordance with California Business & Professions Code section 17203, Plaintiff
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`seeks an order enjoining Defendant from continuing to conduct business through unlawful,
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`unfair, and/or fraudulent acts and practices and to commence a corrective advertising campaign.
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`99. Plaintiff also seeks an order for the disgorgement and restitution of all monies from
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`the sale of the Product that was unjustly acquired through acts of unlawful, unfair and/or
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`fraudulent competition.
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`SECOND CLAIM
`(ON BEHALF OF THE CALIFORNIA CLASS)
`(Violation of California Business & Professions Code §§ 17200, et seq. –
`Unfair and Fraudulent Conduct Prong of the UCL)
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`100. Plaintiff incorporates by reference all of the allegations of the preceding paragraphs
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`as if fully set forth herein.
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`101. California Business & Professions Code section 17200 prohibits any “unlawful,
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`unfair or fraudulent business act or practice.”
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`102. The false and misleading labeling of the Product, as alleged herein, constitutes
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`“unfair” business acts and practices because such conduct is immoral, unscrupulous, and offends
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`public policy. Further, the gravity of Defendant's conduct outweighs any conceivable benefit of
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`such conduct.
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`103. The acts, omissions, misrepresentations, practices, and non-disclosures of
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`Defendant as alleged herein constitute “fraudulent” business acts and practices, because
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`Defendant's conduct is false and misleading to Plaintiff and members of the Class.
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`104. Defendant's labeling and marketing of the Product is likely to deceive Class
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`Members about the flavoring source and amount of chocolate in the Product.
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`Case 5:21-cv-01202-EJD Document 1 Filed 02/18/21 Page 18 of 28
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`105. Defendant either knew or reasonably should have known that the claims and
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`statements on the labels of the Product were likely to deceive consumers.
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`106. In accordance with California Business & Professions Code section 17203, Plaintiff
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`seeks an order enjoining Defendant from continuing to conduct business through unlawful,
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`unfair, and/or fraudulent acts and practices and to commence a corrective advertising campaign.
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`107. Plaintiff also seeks an order for the disgorgement and restitution of all monies from
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`the sale of the Product that were unjustly acquired through acts of unlawful, unfair and/or
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`fraudulent competition.
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`THIRD CLAIM
`(ON BEHALF OF THE CALIFORNIA CLASS)
`(Violation of California Business & Professions Code §§ 17500, et seq. –
`False and Misleading Advertising)
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`108. Plaintiff incorporates by reference all allegations contained in the complaint as if
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`fully set forth herein.
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`109. California False Advertising Law (Cal. Business & Professions Code sections
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`17500 and 17508) prohibits “mak[ing] any false or misleading advertising claim.”
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`110. As alleged herein, Defendant, in its labeling of the Product, makes “false [and]
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`misleading advertising claim[s],” as it deceives consumers as to the flavor composition and
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`amount of chocolate in the Product.
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`111. In reliance on these false and misleading advertising claims, Plaintiff and members
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`of the Class purchased and consumed, and used the Product without the knowledge that the
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`Product contained artificial flavoring.
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`112. Defendant knew or should have known that its labeling and marketing was likely
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`to deceive consumers.
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`113. As a result, Plaintiff and the Class are entitled to injunctive and equitable relief,
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`CLASS ACTION COMPLAINT
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`Case 5:21-cv-01202-EJD Document 1 Filed 02/18/21 Page 19 of 28
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`restitution, and an order for the disgorgement of the funds by which Defendant was unjustly
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`enriched.
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`FOURTH CLAIM
`(ON BEHALF OF THE CALIFORNIA CLASS)
`(Violation of Cal. Civ. Code § 1750 et seq. –
`California’s Consumer Legal Remedies Act “CLRA”)
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`114. Plaintiff incorporates by reference all of the allegations of the preceding paragraphs
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`as if fully set forth herein.
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`115. Plaintiff brings this claim individually and on behalf of the members of the
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`California Class against Defendant.
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`116. The CLRA prohibits deceptive practices in connection with the conduct of a
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`business that provides goods, property, or services primarily for personal, family, or household
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`purposes.
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`117. Defendant’s false and misleading labeling and other policies, acts, and practices
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`were designed to, and did, induce the purchase and use of the Product for personal, family, or
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`household purposes by Plaintiff and Class Members, and violated and continue to violate the
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`following sections of the CLRA:
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`i. § 1770(a)(2), which prohibits representing that good have a particular
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`composition or contents that they do not have;
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`a. § 1770(a)(5): which prohibits representing that goods have characteristics, uses, or
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`benefits which they do not have;
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`b. 1770(a)(7): which prohibits representing that goods are of a particular standard,
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`quality, or grade if they are of another;
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`c. § 1770(a)(9): which prohibits advertis