Case 5:22-cv-00640-VKD Document 1 Filed 01/31/22 Page 1 of 23
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`BURSOR & FISHER, P.A.
`L. Timothy Fisher (State Bar No. 191626)
`Sean L. Litteral (State Bar No. 331985)
`1990 North California Blvd., Suite 940
`Walnut Creek, CA 94596
`Telephone: (925) 300-4455
`Facsimile: (925) 407-2700
`E-Mail: ltfisher@bursor.com
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` slitteral@bursor.com
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`Attorneys for Plaintiff
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`BRIAN BLASSINGAME, on behalf of himself
`and all others similarly situated,
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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` Case No.
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`CLASS ACTION COMPLAINT
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`JURY TRIAL DEMANDED
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`Plaintiff,
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`v.
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`B&G FOODS, INC.,
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`Defendant.
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`CLASS ACTION COMPLAINT
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`Case 5:22-cv-00640-VKD Document 1 Filed 01/31/22 Page 2 of 23
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`Plaintiff Brian Blassingame (“Plaintiff”), individually and on behalf of all others similarly
`situated, allege the following against Defendant B&G Foods, Inc. (“B&G” or “Defendant”) on
`information and belief, except that Plaintiff’s allegations as to his own actions are based on personal
`knowledge.
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`NATURE OF THE ACTION
`1.
`This action seeks to recover damages and remedy Defendant’s continuing failure to
`warn individuals that certain B&G Foods, Inc. herbs and spices sold under the brand names “Spice
`Islands” and “Tone’s,” including Spice Islands’ Sweet Basil, Spice Island’s Ground Ginger, and
`Tone’s Ground Thyme (collectively, the “Products”) expose consumers to heightened levels of toxic
`heavy metals, including lead, arsenic, and cadmium.
`2.
`A November 2021 report by Consumer Reports reveals that certain brands of herbs
`and spices, including Defendant’s Products, are tainted with significant levels of toxic heavy metals.
`3.
`Heightened levels of toxic heavy metals in foods can cause cancer and serious and
`often irreversible damage to brain development as well as other serious health problems. Although
`this action does not allege a claim under California’s Safe Drinking Water and Toxic Enforcement
`Act of 1986 (“Proposition 65”), the amount of toxic heavy metals found in the Products violates that
`statute too.
`4.
`As described more fully below, consumers who purchase the Products are injured by
`Defendant’s acts and omissions concerning the presence of heightened levels of toxic heavy metals.
`No reasonable consumer would know, or have reason to know, that the Products contain heightened
`levels of heavy metals. Worse, as companies across the industry have adopted methods to limit
`heavy metals in their herbs and spices, Defendant has stood idly by with a reckless disregard for its
`consumers’ health and well-being. As such, Plaintiff seeks relief in this action individually and as a
`class action on behalf of all similarly situated purchasers of the Products.
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`CLASS ACTION COMPLAINT
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`Case 5:22-cv-00640-VKD Document 1 Filed 01/31/22 Page 3 of 23
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`PARTIES
`5.
`Plaintiff Brian Blassingame is a resident of Santa Cruz, California and a citizen of the
`State of California. Mr. Blassingame purchased Defendant’s Spice Islands’ Sweet Basil in
`approximately the spring of 2020 from a Safeway located in Santa Cruz, California. Had Defendant
`disclosed on the label that the Product contained unsafe levels of toxic heavy metals, Mr.
`Blassingame would have been aware of that fact and would not have purchased the Product. After
`learning of the high levels of toxic heavy metals, Ms. Blassingame stopped purchasing the Product.
`However, Mr. Blassingame regularly visits stores where Defendant’s products are sold and remains
`interested in purchasing healthy, safe herbs and spices for he and his family. He remains very much
`interested in purchasing Defendant’s herbs and spices.
`6.
`Defendant B&G Foods is a foreign corporation with its headquarters in Parsippany,
`New Jersey. Defendant manufactures, markets, and sells herbs and spices under various brand
`names, including Spice Islands’ and Tone’s throughout California and the United States.
`JURISDICTION AND VENUE
`7.
`This Court has subject matter jurisdiction over this action pursuant to the Class Action
`Fairness Act of 2005, Pub. L. No. 109-2 Stat. 4 (“CAFA”), which, inter alia, amends 28 U.S.C. §
`1332, at new subsection (d), conferring federal jurisdiction over class actions where, as here: (a)
`there are 100 or more members in the proposed classes; (b) some members of the proposed classes
`have a different citizenship from Defendant; and (c) the claims of the proposed class members exceed
`the sum or value of five million dollars ($5,000,000) in aggregate. See 28 U.S.C. § 1332(d)(2) and
`(6).
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`8.
`Venue is proper in this Court under 28 U.S.C. § 1391 because Defendant transacts
`significant business within this District, Plaintiff resides within this District, and a substantial part of
`the events giving rise to Plaintiff’s claims took place within this District.
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`CLASS ACTION COMPLAINT
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`I.
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`FACTS COMMON TO ALL CAUSES OF ACTION
`Lead And Arsenic Are Toxic
`9.
`Lead, arsenic, and cadmium are heavy metals. The harmful effects of heavy metals
`are well-documented, particularly on children. Exposure puts children at risk for lowered IQ,
`behavioral problems (such as attention deficit hyperactivity disorder), type 2 diabetes, and cancer,
`among other health issues. Heavy metals also pose risks to adults. Even modest amounts of heavy
`metals can increase the risk of cancer, cognitive and reproductive problems, and other adverse
`conditions. Because the average person comes into contact with heavy metals many times and from
`many sources, it is important to limit exposure.
`10.
`“No amount of lead is known to be safe.”1 Exposure to lead may cause anemia,
`weakness, and kidney and brain damage.2 Lead can affect almost every organ and system in the
`body. Lead accumulates in the body over time, and can lead to health risks and toxicity, including
`inhibiting neurological function, anemia, kidney damage, seizures, and in extreme cases, coma and
`death. Lead can also cross the fetal barrier during pregnancy, exposing the mother and developing
`fetus to serious risks, including reduced growth and premature birth. Lead exposure is also harmful
`to adults as more than 90 percent of the total body burden of lead is accumulated in the bones, where
`it is stored. Lead in bones may be released into the blood, re-exposing organ systems long after the
`original exposure.3
`11.
`Arsenic is also dangerous to humans. “Arsenic is ranked first among toxicants posing
`a significant potential threat to human health based on known or suspected toxicity.”4 Long term
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`1 See https://www.npr.org/sections/thetwo-way/2016/08/13/489825051/lead-levels-below-epa-
`limits-can-still-impact-your-health (last accessed Jan. 17, 2022).
`2 Centers for Disease Control and Prevention, “Health Problems Caused by Lead,” The National
`Institute for Occupational Safety and Health (NIOSH),
`https://www.cdc.gov/niosh/topics/lead/health.html#:~:text=Exposure%20to%20high%20levels%20
`of,a%20developing%20baby's%20nervous%20system. (last accessed Jan. 17, 2022).
`3 State of New York Department of Health, “Lead Exposure in Adults: A Guide for Health Care
`Providers,” https://www.health.ny.gov/publications/2584.pdf (last accessed Jan. 17, 2022).
`4 Christina R. Tyler and Andrea M. Allan, “The Effects of Arsenic Exposure on Neurological and
`Cognitive Dysfunction in Human and Rodent Studies: A Review,” Curr Environ Health Rep. 2014;
`1(2): 132-147, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4026128/ (last accessed Jan. 17,
`2022).
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`CLASS ACTION COMPLAINT
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`Case 5:22-cv-00640-VKD Document 1 Filed 01/31/22 Page 5 of 23
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`exposure is linked to cardiovascular disease. Arsenic can also cause bladder, lung, liver, and skin
`cancer, and strokes and diabetes. Recent studies have suggested that arsenic may cause IQ deficits
`in children and may be harmful to fetal development as “even low concentrations of arsenic impair
`neurological function[.]”5 There is “essentially no safe level” of arsenic.6
`12.
`Cadmium is similarly harmful. “[A]ny cadmium exposure should be avoided.”7
`Exposure to cadmium may lead to damage to kidneys, lungs, and bones.8 “Even relatively low
`chronic exposure can cause irreversible renal tubule damage, potentially progressing to glomerular
`damage and kidney failure” and “bone loss often is seen in concert with these effects.”9 This metal
`is also known to cause cancer and targets the body’s cardiovascular, renal, gastrointestinal,
`neurological, reproductive, and respiratory systems.10
`13.
`The People of the State of California declared by initiative under Proposition 65 their
`right “[t]o be informed about exposures to chemicals that cause cancer, birth defects, or other
`reproductive harm.” Proposition 65, § 1(b). To effectuate this goal, California’s Proposition 65,
`Health & Safety Code § 25249.5, et seq., prohibits exposing people to chemicals listed by the State
`of California as known to cause cancer, birth defects or other reproductive harm above certain levels
`without a “clear and reasonable warning,” unless the business responsible for the exposure can prove
`that it fits within a statutory exemption.
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`5 Id.
`6 See https://publicintegrity.org/environment/what-to-do-if-your-drinking-water-contains-arsenic/
`(last accessed Jan. 17, 2022).
`7 M. Nathaniel Mead, “Cadmium Confusion: Do Consumers Need Protection,” Environ Health
`Perspect. 2010 Dec; 118(12): A528-A534,
`https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3002210/ (last accessed Jan. 17, 2022).
`8 See Agency for Toxic Substances and Disease Registry, “ToxFAQs for Cadmium,” Toxic
`Substances Portal,
`https://wwwn.cdc.gov/TSP/ToxFAQs/ToxFAQsDetails.aspx?faqid=47&toxid=15 (last accessed
`Jan. 17, 2022).
`9 Mead, supra note 9.
`10 See Occupational Safety & Health, “Cadmium,” https://www.osha.gov/cadmium (last accessed
`Jan. 17, 2022).
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`CLASS ACTION COMPLAINT
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`14.
`Lead and lead compounds are subject to the clear and reasonable warning requirement
`regarding carcinogens under Proposition 65. Specifically, a Proposition 65 warning is required
`where a total daily intake of lead exceeds .5 mcg.
`15.
`Arsenic and arsenic compounds are also subject to the clear and reasonable warning
`requirement regarding carcinogens under Proposition 65. Specifically, a Proposition 65 warning is
`required where a total daily intake of arsenic exceeds 0.5 mcg.
`16.
`Cadmium and cadmium compounds are likewise subject to the clear and reasonable
`warning requirement regarding carcinogens under Proposition 65. Specifically, a Proposition 65
`warning is required where a total daily intake of cadmium exceeds 0.5 mcg.
`17.
`This Complaint does not allege a violation of Proposition 65. Proposition 65 is
`relevant, however, to the extent it provides information concerning the material omissions in
`violation of California’s Consumer Protection laws, and guidance as to a reasonable consumer’s
`purchasing decisions. Reasonable consumers purchased the Products believing, among other things,
`that they complied with all applicable California regulations and were safe according to California
`regulatory thresholds. Reasonable consumers would not have purchased the Products if they had
`known that they contained heightened levels of lead, arsenic, and cadmium or they would have
`purchased them on different terms. Because the presence of lead, arsenic, and cadmium pertain to
`safety, Defendant had a duty to disclose that its products contained heightened levels of lead, arsenic,
`and cadmium independent of any duty imposed by Proposition 65.
`II.
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`B&G’s Herbs & Spices Contain Heightened Levels Of Arsenic, Lead, and Cadmium
`18.
`In November of 2021, Consumer Reports published a report titled “Your Herbs and
`Spices Might Contain Arsenic, Cadmium, and Lead.” Employing the Analysis for Arsenic,
`Cadmium, Lead, and Mercury by Triple Quadruple Inductively Coupled Plasma Mass Spectrometry
`(IC-QQQ-MS), With Collision Cell, Consumer Reports determined that each of the Products contain
`sufficient levels of toxic metals as to render them unsafe for human consumption. Consumer
`Reports’ samples were prepared and analyzed in accordance with the Association of Official
`Analytical Chemists (AOAC) Method 2015.01.
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`CLASS ACTION COMPLAINT
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`19.
`Consumer Reports analyzed “126 individual products from national and private-label
`brands, such as Great Value (Walmart), La Flor, McCormick, Penzeys, Spice Islands, and Trader
`Joe’s.”11
`20.
`Consumer Reports determined that “[r]oughly one-third of the tested products, 40 in
`total, had high enough levels of arsenic, lead, and cadmium combined, on average, to pose a health
`concern for children when regularly consumed in typical serving sizes. Most raised concern for
`adults, too.”12
`21.
`The authors cautioned that “just one serving—3/4 teaspoons or more—per day leaves
`little room for heavy metal exposure from other sources” including in “fruit juice, baby food, and
`rice[.]”13 These latter food categories have also tested high for heavy metals and have been the
`subject of numerous lawsuits.
`22. With regards to the results, James E. Rogers, PhD, director of food safety and testing
`at Consumer Reports remarked that “[w]hen people think about heavy metals in their diet, if they do
`at all, it’s probably the lead in their drinking water or arsenic in their children’s fruit juices or cereals
`. . . But our tests show that dried herbs and spices can be a surprising, and worrisome, source for
`children and adults.”14
`23.
`Concerning the source of the heavy metals in herbs and spices, Consumer Reports
`stated that heavy metals may get into food, “including herbs and spices, during manufacturing—
`from processing equipment or packaging[.]”15
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`11 Lisa L. Gill, “Your Herbs and Spices Might Contain Arsenic, Cadmium, and Lead,” Consumer
`Reports (Nov. 9, 2021), https://www.consumerreports.org/food-safety/your-herbs-and-spices-
`might-contain-arsenic-cadmium-and-lead/ (last accessed Dec. 21, 2021).
`12 Id.
`13 Id.
`14 Id.
`15 Id.
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`CLASS ACTION COMPLAINT
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`24.
`Along these lines, Consumer Reports determined that “it is possible for herb and spice
`companies to limit heavy metals in their products” as “[a]bout two-thirds of the spices [Consumer
`Reports] tested did not have concerning levels of heavy metals.”16
`25.
`Yet, Defendant fails to test for heavy metals. This is despite the fact that other
`companies such as Bolner’s Fiesta and Wadi Al Akhdar do perform such tests.
`26.
`Accordingly, provided this industry standard, Defendant would have had the
`knowledge that it could test for heavy metals, but it did not, and that it could safely remove these
`metals from its herbs and spices, but, again, did not.
`27.
`Instead, Defendant chose to ignore the health of the consuming public in pursuit of
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`profit.
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`III. The High Presence of Toxic Heavy Metals In B&G’s Herbs And Spices Far Exceeds
`Consumer Expectations
`28.
`According to Global Market Insights, “[t]he demand for spices and seasonings has
`increased in recent years owing to their varied nutritional benefits.”17 Indeed, “[m]ore Americans
`are considering the use of spices and herbs for medicinal and therapeutic/remedy use, especially for
`various chronic conditions” as “[t]here is now ample evidence that spices and herbs possess
`antioxidant, anti-inflammatory, antitumorigenic, anticarcinogenic, and glucose-and cholesterol -
`lowering activities as well as properties that affect cognition and mood.”18 As such, the safety of
`herbs and spices that can be easily purchased to season such food, amongst others, is a material fact
`to consumers (such as Plaintiff and the Class members).
`29. More specifically, given the negative effects of toxic heavy metals (such as arsenic,
`lead, and cadmium) on child development and adult health, the presence of these substances in food
`is a material fact to consumers (such as Plaintiff and members of the Class). Indeed, consumers—
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`16 Id.
`17 Global Market Insights, “North America Seasonings Market to Exceed $5bn by 2027,” Press
`Releases (Oct. 22, 2021), https://www.gminsights.com/pressrelease/north-america-seasonings-
`market?utm_source=globenewswire.com&utm_medium=referral&utm_campaign=Paid_globenew
`swire (last accessed Jan. 17, 2022).
`18 T Alan Jiang, “Health Benefits of Culinary Herbs and Spices,” J AOAC Int. 2019 Mar 1; 102(2):
`395-411, 10.5740/jaoacint.18-0418 (last accessed Jan. 17, 2022).
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`CLASS ACTION COMPLAINT
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`such as Plaintiff and members of the Class—are unwilling to purchase foods that contains elevated
`levels of toxic heavy metals.
`30.
`Defendant knows that the safety of its herbs and spices (as a general matter) is a
`material fact to consumers.
`31.
`Defendant also knows that consumers (such as Plaintiff and members of the Class)
`are unwilling to purchase its brands of herbs and spices that contain elevated levels of toxic heavy
`metals.
`32.
`As such, Defendant also knows that the presence of toxic heavy metals in its herbs
`and spices is a material fact to consumers (such as Plaintiff and the Class members).
`33.
`Herbs and spices manufacturers (such as Defendant) hold a special position of public
`trust. Consumers believe that they would not sell products that are unsafe.
`34.
`Defendant knew that if the elevated levels of toxic heavy metals in its herbs and spices
`was disclosed to Plaintiff and the Class members, then Plaintiff and the Class members would be
`unwilling to purchase them.
`35.
` In light of Defendant’s knowledge that Plaintiff and the Class members would be
`unwilling to purchase the Products if they knew that those brands of herbs and spices contained
`elevated levels of toxic heavy metals, Defendant intentionally and knowingly concealed this fact
`from Plaintiff and the Class members and did not disclose the presence of these toxic heavy metals
`on the labels of the Products.
`36.
`Defendant knew that Plaintiff and the Class members would rely upon the omissions
`contained on the packages of the Products and intended for them to do so.
`37.
`Defendant knew that in relying upon the omissions contained on the packages of the
`Products, Plaintiff and the Class members would view those products as being safe for consumption
`and Defendant’s concealment of the fact that those brands of herbs and spices contained elevated
`levels of toxic heavy metals.
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`CLASS ACTION COMPLAINT
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`38.
`Prior to purchasing the Products, Plaintiff and the Class members were exposed to,
`saw, read, and understood Defendant’s omissions regarding the safety of their herbs and spices, and
`relied upon them.
`39.
`As a result of Defendant’s concealment of the fact that its herbs and spices contained
`elevated levels of toxic heavy metals, Plaintiff and the Class members reasonably believed that
`Defendant’s Products were free from substances that would negatively affect their health.
`40.
`In reliance upon Defendant’s omissions, Plaintiff and the Class members purchased
`Defendant’s Products.
`41.
`Had Plaintiff and the Class members known the truth—i.e., that Defendant’s brands
`of herbs and spices contained elevated levels of toxic heavy metals, rendering them unsafe for
`consumption by children and adults—they would not have been willing to purchase them at all.
`42.
`Therefore, as a direct and proximate result of Defendant’s omissions concerning its
`brands of herbs and spices, Plaintiff and the Class members purchased the Products.
`43.
`Plaintiff and the Class members were harmed in the form of the monies they paid for
`the Products which they would not otherwise have paid had they known the truth. Since the presence
`of elevated levels of toxic heavy metals in herbs and spices renders them unsafe for human
`consumption, the Products that Plaintiff and the Class members purchased are worthless.
`CLASS ACTION ALLEGATIONS
`44.
`Plaintiff seeks to represent a class defined as all persons in the United States who
`purchased the Products (the “Class”). Excluded from the Class are persons who made such purchases
`for purpose of resale. Plaintiff reserves the right amend the above class definition as appropriate
`after further investigation and discovery, including by seeking to certify a narrower multi-state class
`(or classes) in lieu of a nationwide class if appropriate.
`45.
`Plaintiff also seeks to represent a Subclass of all Class Members who purchased the
`Products in California (the “Subclass”).
`46.
`At this time, Plaintiff does not know the exact number of members of the Class;
`however, given the nature of the claims and the number of retail stores in the United States selling
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`CLASS ACTION COMPLAINT
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`the Products, Plaintiff believes that the Class members are so numerous that joinder of all members
`is impracticable.
`47.
`There is a well-defined community of interest in the questions of law and fact
`involved in this case. Questions of law and fact common to the members of the Class and Subclass
`that predominate over questions that may affect individual Class members include:
`a. whether the Products contain toxic heavy metals;
`b. whether Defendant’s conduct is unethical, oppressive, unscrupulous, and/or
`substantially injurious to consumers;
`c. whether the amount of toxic heavy metals in the Products is material to a reasonable
`consumer;
`d. whether Defendant had a duty to disclose that its Products had heightened levels of
`toxic heavy metals;
`e. whether Plaintiff and members of the Class are entitled to injunctive and other
`equitable relief;
`f. whether Defendant failed to disclose material facts concerning the Products;
`g. whether Defendant’s conduct was unfair and/or deceptive;
`h. whether Defendant has been unjustly enriched as a result of the unlawful, fraudulent,
`and unfair conduct alleged in this Complaint such that it would be inequitable for
`Defendant to retain the benefits conferred upon Defendant by Plaintiff and the Class
`members;
`i. whether Defendant breached implied warranties to Plaintiff and the Class members;
`j. whether Plaintiff and the Class members have sustained damages with respect to the
`common-law claims asserted, and if so, the proper measure of their damages.
`48.
`Plaintiff’s claims are typical of those of the Class members because Plaintiff, like
`other Class members, purchased, in a typical consumer setting, the Products and Plaintiff sustained
`damages from Defendant’s wrongful conduct.
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`CLASS ACTION COMPLAINT
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`49.
`Plaintiff will fairly and adequately protect the interests of the Class members and have
`retained counsel that is experienced in litigating complex class actions. Plaintiff has no interests that
`conflict with those of the Class or the Subclass.
`50.
`A class action is superior to other available methods for the fair and efficient
`adjudication of this controversy. Because the amount of each individual Class member’s claim is
`small relative to the complexity of this litigation, and because of Defendant’s resources, Class
`members are not likely to pursue legal redress individually for the violations detailed in this
`complaint. Individualized litigation would significantly increase the delay and expense to all parties
`and to the Court and would create the potential for inconsistent and contradictory rulings. By
`contrast, a class action presents fewer management difficulties, allows claims to be heard that would
`otherwise go unheard because the expense of bringing individual lawsuits, and provides the benefits
`of adjudication, economies of scale, and comprehensive supervision by a single court.
`51.
`The prerequisites to maintaining a class action for equitable relief are met as
`Defendant has acted or refused to act on grounds generally applicable to the Class and the Subclass,
`thereby making appropriate equitable relief with respect to the Class and the Subclass as a whole.
`52.
`The prosecution of separate actions by members of the Class and the Subclass would
`create a risk of establishing inconsistent rulings and/or incompatible standards of conduct for
`Defendant. For example, one court might enjoin Defendant from performing the challenged acts,
`whereas another might not. Additionally, individual actions could be dispositive of the interests of
`the Class and the Subclass even where certain Class members are not parties to such actions.
`CAUSES OF ACTION
`FIRST COUNT
`(Violation of California Business & Professions Code § 17200 et seq.,
`Based on Fraudulent Acts and Practices)
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`53.
`Plaintiff incorporates by reference the foregoing paragraphs of this Complaint as if
`fully stated herein.
`54.
`Plaintiff brings this claim individually and on behalf of the Subclass members.
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`CLASS ACTION COMPLAINT
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`Case 5:22-cv-00640-VKD Document 1 Filed 01/31/22 Page 13 of 23
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`55.
`Under California Business & Professions Code §17200, any business act or practice
`that is likely to deceive members of the public constitutes a fraudulent business act or practice.
`56.
`Defendant has engaged, and continues to engage, in conduct that is likely to deceive
`members of the public. This conduct includes, but is not limited to, failing to disclose that the
`Products contain heightened levels of toxic heavy metals.
`57.
`After reviewing the packaging for the Product, Plaintiff purchased the Products in
`reliance on Defendant’s omissions. Plaintiff would not have purchased the Products at all if he had
`known of Defendant’s material omission that the Products contain heightened levels of toxic heavy
`metals. Plaintiff and the Subclass members have all paid money for the Products. However, Plaintiff
`and the Subclass members did not obtain the full value or any value of the advertised products due to
`Defendant’s omissions regarding the heightened levels of toxic heavy metals. Accordingly, Plaintiff
`and the Subclass members have suffered injury in fact and lost money or property as a direct result of
`Defendant’s material omissions.
`58.
`By committing the acts alleged above, Defendant has engaged in fraudulent business
`acts and practices, which constitute unfair competition within the meaning of California Business &
`Professions Code §17200.
`59.
`In accordance with California Business & Professions Code §17203, Plaintiff seeks
`an order: (1) enjoining Defendant from continuing to conduct business through its fraudulent conduct;
`and (2) requiring Defendant to conduct a corrective advertising campaign.
`60.
`As a result of Defendant’s conduct, Plaintiff seeks restitution, disgorgement, and
`injunctive under California Business & Professions Code §17203.
`SECOND COUNT
`(Violations of California Business & Professions Code §17200, et seq.,
`Based on Commission of Unlawful Acts)
`61.
`Plaintiff incorporates by reference the foregoing paragraphs of this Complaint as if
`fully stated herein.
`62.
`Plaintiff brings this claim individually and on behalf of the Subclass members.
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`CLASS ACTION COMPLAINT
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`Case 5:22-cv-00640-VKD Document 1 Filed 01/31/22 Page 14 of 23
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`63.
`The violation of any law constitutes an unlawful business practice under California
`Business & Professions Code §17200.
`64.
`Defendant has violated §17200’s prohibition against engaging in unlawful acts and
`practices by, inter alia, making omissions of material facts, as set forth more fully herein, and
`violating California Civil Code §§1572, 1573, 1709, 1710, 1711, 1770, California Business &
`Professions Code §17200 et seq., California Health & Safety Code §110660, 21 U.S.C. §321, and by
`violating the common law. Proposition 65 is not a predicate violation for the claim under the
`unlawful prong of the UCL.
`65.
`By violating these laws, Defendant has engaged in unlawful business acts and
`practices, which constitute unfair competition within the meaning of Business & Professions Code
`§17200.
`66.
`Plaintiff purchased the Products in reliance on Defendant’s omissions concerning the
`safety of the Products as fit for consumption and based on the omissions as to the amount of toxic
`heavy metals contained therein. Plaintiff would not have purchased the Products at all had he known
`of Defendant’s omissions. Plaintiff and the Subclass members paid money for the Products.
`However, Plaintiff and the Subclass members did not obtain the full value, or any value, of the
`advertised products due to Defendant’s omissions regarding the Products. Accordingly, Plaintiff and
`the Subclass members have suffered injury in fact and lost money or property as a direct result of
`Defendant’s material omissions.
`67.
`In accordance with California Business & Professions Code §17203, Plaintiff seeks
`an order: (1) enjoining Defendant from continuing to conduct business through its fraudulent
`conduct; and (2) requiring Defendant to conduct a corrective advertising campaign.
`68.
`As a result of Defendant’s conduct, Plaintiff seeks restitution, disgorgement, and
`injunctive relief under California Business & Professions Code §17203.
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`CLASS ACTION COMPLAINT
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`THIRD COUNT
`(Violations of California Business & Professions Code §17200, et seq.,
`Based on Unfair Acts and Practices)
`69.
`Plaintiff incorporates by reference the foregoing paragraphs of this Complaint as if
`fully stated herein.
`70.
`Plaintiff brings this claim individually and on behalf of the Subclass members.
`71.
`Under Business & Professions Code §17200, any business act or practice that is
`unethical, oppressive, unscrupulous, and/or substantially injurious to consumers, or that violates a
`legislatively declared policy, constitutes an unfair business act or practice.
`72.
`Defendant has engaged, and continues to engage, in conduct that is immoral,
`unethical, oppressive, unscrupulous, and/or substantially injurious to consumers. This conduct
`includes failing to disclose that the Products contain heightened levels of toxic heavy metals.
`73.
`Defendant has engaged, and continue t