Case 5:22-cv-04465-SVK Document 1 Filed 08/02/22 Page 1 of 21
`
`Jonas B. Jacobson (Cal. Bar No. 269912)
`jonas@dovel.com
`Simon Franzini (Cal. Bar No. 287631)
`simon@dovel.com
`
`DOVEL & LUNER, LLP
`201 Santa Monica Blvd., Suite 600
`Santa Monica, California 90401
`Telephone: (310) 656-7066
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`Krystal Lopez, individually and on behalf of
`all others similarly situated,
`
`Case No.
`
`5:22-cv-4465
`
`Plaintiff,
`
`vs.
`
`Zarbee’s Inc.,
`
`Defendant.
`
`CLASS ACTION COMPLAINT
`DEMAND FOR JURY TRIAL
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`Case 5:22-cv-04465-SVK Document 1 Filed 08/02/22 Page 2 of 21
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`
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`I.
`II.
`III.
`IV.
`
`B.
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`Table of Contents
`Introduction. ............................................................................................................................... 1
`Parties. ........................................................................................................................................ 2
`Jurisdiction, venue, and divisional assignment. ......................................................................... 2
`Facts. .......................................................................................................................................... 2
`A.
`It is important to consumers that over-the-counter melatonin is accurately
`dosed and labelled. ......................................................................................................... 2
`Scientific research reveals serious problems with the accuracy of melatonin
`dosing and labelling in Canada. Scientists warn that the same is likely true of
`some U.S. brands. .......................................................................................................... 4
`Zarbee’s sells over-the-counter melatonin supplements to millions of U.S.
`consumers. ...................................................................................................................... 5
`Scientific testing reveals that Zarbee’s Melatonin has substantial and random
`overdoses of melatonin. ................................................................................................. 7
`Zarbee’s labelling is false and misleading to reasonable consumers. ............................ 7
`E.
`Zarbee’s overcharges millions of consumers. ................................................................ 9
`F.
`Ms. Lopez was misled and harmed by Zarbee’s misleading labelling. ......................... 9
`G.
`Class action allegations. ........................................................................................................... 10
`V.
`VI. Claims. ..................................................................................................................................... 12
`Count 1: Violations of State Consumer Protection Acts .......................................................... 12
`Count 2: Violation of California Unfair Competition Law (UCL) .......................................... 13
`Count 3: Violation of California’s False Advertising Law (FAL) ........................................... 14
`Count 4: Breach of Express Warranty ..................................................................................... 15
`Count 5: Negligent Misrepresentation ..................................................................................... 16
`Count 6: Intentional Misrepresentation .................................................................................... 17
`Count 7: Unjust Enrichment/Quasi-Contract ........................................................................... 17
`VII. Jury Demand. ............................................................................................................................ 18
`VIII. Prayer for Relief. ...................................................................................................................... 18
`
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`C.
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`D.
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`CLASS ACTION COMPLAINT
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` i
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`Case No.
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`Case 5:22-cv-04465-SVK Document 1 Filed 08/02/22 Page 3 of 21
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`I.
`
`Introduction.
`1.
`Melatonin is a neurohormone that regulates the brain’s sleep cycle. Millions of
`consumers take over-the-counter melatonin supplements to help them sleep. Because melatonin
`alters brain chemistry, it is important that these supplements are accurately dosed and labelled.
`2.
`A few years ago, scientists tested Canadian melatonin supplements and found that, for
`a number of brands, the true amount of melatonin varied wildly from the label. Scientists, the
`National Institute of Heath, and consumer advocates have warned that the same is true in the U.S.
`3.
`Zarbee’s is a major U.S. brand of melatonin supplements, sold nationwide at retailers
`like Walmart, Kroger, and Target. Many Zarbee’s melatonin products are specifically marketed for
`young children. Each bottle claims to have a specific dose of melatonin per serving. For example:
`
`Like millions of other consumers, Ms. Lopez bought Zarbee’s melatonin for her
`4.
`children and trusted the accuracy of Zarbee’s dosing and labelling. To determine how much
`melatonin is really in Zarbee’s, a university mass-spectrometry laboratory tested multiple bottles,
`including her bottle. The results were alarming—the bottles are substantially (and seemingly
`randomly) overdosed. The true amount of melatonin in her bottle was 216% of the claimed amount.
`5.
`Zarbee’s systematically misrepresents how much melatonin is in the supplements it
`sells. Consumers are being misled and overcharged and children are being put at risk.
`
`CLASS ACTION COMPLAINT
`
` 1
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`Case No.
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`Case 5:22-cv-04465-SVK Document 1 Filed 08/02/22 Page 4 of 21
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`
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`II.
`
`Parties.
`6.
`Plaintiff Krystal Lopez is domiciled in Salinas, California.
`7.
`The proposed class includes citizens of every state.
`8.
`Defendant Zarbee’s Inc. is a Delaware corporation with its principal place of business
`at 11650 State St. #101, Draper, Utah 84020.
`III.
`Jurisdiction, venue, and divisional assignment.
`9.
`This Court has subject matter jurisdiction under 28 U.S.C. § 1332(d)(2). The amount
`in controversy exceeds $5,000,000, exclusive of interest and costs, and the matter is a class action in
`which one or more members of the proposed class are citizens of a state different from Defendant.
`10.
`The Court has personal jurisdiction over Defendant because Defendant sold Zarbee’s
`melatonin products to consumers in California, including to Plaintiff.
`11.
`Venue is proper under 28 U.S.C. § 1391(b)(1) and 28 U.S.C. § 1391(d) because
`Defendant would be subject to personal jurisdiction in this District if this District were a separate
`state, given that Defendant sold Zarbee’s melatonin products to consumers in this District,
`including Plaintiff. Venue is also proper under 28 U.S.C. § 1391(b)(2) because a substantial part
`of Defendant’s conduct giving rise to the claims occurred in this District, including Defendant’s
`sale to Plaintiff.
`12.
`Divisional Assignment. This action arose in Monterey County (San Jose Division).
`Ms. Lopez purchased Zarbee’s melatonin while living in Salinas (in Monterey County). Thus, a
`substantial part of the events giving rise to the claim occurred in Monterey County.
` IV. Facts.
`A.
`It is important to consumers that over-the-counter melatonin is accurately dosed
`and labelled.
`13. Melatonin (N-acetyl-5-methoxytryptamine) is a neurohormone produced by the pineal
`gland in the brain. It regulates the brain’s circadian rhythm and sleep cycle.
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`CLASS ACTION COMPLAINT
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`Case No.
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`Case 5:22-cv-04465-SVK Document 1 Filed 08/02/22 Page 5 of 21
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`The chemical structure of melatonin
`14. Millions of U.S. consumers take melatonin supplements to treat sleep problems,
`anxiety, and other issues. Melatonin is one of the most popular over-the-counter supplements in the
`U.S., and its use has “significantly increased” in the last 20 years. 1 Its use to help children sleep is
`becoming increasingly popular too, which concerns health experts. 2
`15.
`As scientists explained in the Journal of Clinical Sleep Medicine, because melatonin is
`“self-prescribed” (i.e., purchased directly by consumers who are not experts), it is particularly
`“important that labels are informative and representative of the product,” i.e., that the “label claim
`values for the active ingredient are accurate.” 3 When melatonin is falsely labelled, “higher doses
`could lead to unpleasant/unexpected side effects.” 4 Side effects of melatonin include headaches,
`dizziness, nausea, or excessive or unwanted sleepiness. 5 “Many experts recommend starting with
`the smallest available dosage — 0.5 milligrams to 1 milligram.” 6 When melatonin is given to
`children, the American Academy of Pediatricians (AAP) warns that “quality may not be the same for
`all melatonin products” and recommends its use only “cautiously and carefully.” The AAP
`
`
`1 JAMA Research Letter, Trends in Use of Melatonin Supplements Among US Adults, 1999-
`2018, 327(5) JAMA 483 (2022).
`2 The New York Times, Parents Are Relying on Melatonin to Help Their Kids Sleep. Should
`They?, https://www.nytimes.com/2020/05/18/parenting/melatonin-sleep-kids.html
`3 Erland, L. & Saxena, P., Melatonin Natural Health Products and supplements: Presence of
`serotonin and significant variability of melatonin content, 13 Journal of Clinical Sleep Medicine
`275–281 (2017).
`4 Grigg-Damberger, M. & Ianakieva, D., Poor quality control of over-the-counter melatonin:
`What they say is often not what you get, 13 Journal of Clinical Sleep Medicine 163–165 (2017).
`5 NIH National Library of Medicine Medline Plus, Melatonin,
`https://medlineplus.gov/druginfo/natural/940.html
`6 The New York Times, Melatonin Isn’t a Sleeping Pill. Here’s How to Use It,
`https://www.nytimes.com/2022/01/11/well/mind/melatonin-sleep-insomnia.html
`CLASS ACTION COMPLAINT
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`Case No.
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`Case 5:22-cv-04465-SVK Document 1 Filed 08/02/22 Page 6 of 21
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`recommends: “Start with the lowest dosage. Many children will respond to a low dose (0.5 mg or 1
`mg).” 7 And regardless of side effects, consumers don’t want to take excessive amounts of a
`neurohormone that alters brain chemistry. And they certainly don’t want to give such excessive
`dosages to their children.
`B.
`Scientific research reveals serious problems with the accuracy of melatonin
`dosing and labelling in Canada. Scientists warn that the same is likely true of
`some U.S. brands.
`In 2017, a study of Canadian melatonin brands found “high variability, ranging from
`16.
`−83% to +478%, of the labelled concentration of melatonin content in melatonin supplements.” 8 For
`over 70% of the tested brands, the true amount of Melatonin varied more than 10% from the listed
`amount. The amount of melatonin also varied highly between different lots (manufacturing batches)
`of the same product. The researchers concluded that “manufacturers require increased controls to
`ensure melatonin supplements” are accurately labelled.
`17.
`U.S. scientists warned that this Canadian study “herald[s] what may also be true in
`OTC melatonin supplements marketed in the United States.” 9 Likewise, the National Institute of
`Health has warned that “some melatonin supplements may not contain what’s listed on the product
`label.” 10 And Consumer Reports warned: “The findings … offer the latest proof of something
`supplement industry critics have long warned about: When it comes to this poorly regulated corner of
`modern medicine, consumers often don’t know what they’re buying.” 11
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`7 Melatonin for Kids: What Parents Should Know About This Sleep Aid, healthychildren.org
`(from the American Academy of Pediatricians), https://www.healthychildren.org/English/healthy-
`living/sleep/Pages/melatonin-and-childrens-sleep.aspx
`8 Lauren, Melatonin Natural Health Products and supplements, 13 Journal of Clinical Sleep
`Medicine at 276.
`9 Madeleine, Poor quality control of over-the-counter melatonin, 13 Journal of Clinical Sleep
`Medicine at 163.
`10 NIH National Center for Complementary and Integrative Health, Melatonin:What You Need
`To Know, https://www.nccih.nih.gov/health/melatonin-what-you-need-to-know
`11 Consumer Reports, New Study Questions Ingredient Levels in Some Melatonin
`Supplements, https://www.consumerreports.org/melatonin/study-questions-ingredient-levels-some-
`melatonin-supplements/
`CLASS ACTION COMPLAINT
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`Case No.
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`Case 5:22-cv-04465-SVK Document 1 Filed 08/02/22 Page 7 of 21
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`C.
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`Zarbee’s sells over-the-counter melatonin supplements to millions of U.S.
`consumers.
`Zarbee’s is a major U.S. brand of melatonin supplements. Its melatonin products
`18.
`
`(“Zarbee’s Melatonin”) are available nationwide at retailers like Walmart, Kroger, and Target.
`Millions of U.S. consumers buy Zarbee’s Melatonin and rely on the accuracy of its labelling. Many
`Zarbee’s melatonin products are marketed specifically for children.
`19.
`Zarbee’s makes and sells several varieties of Zarbee’s Melatonin, including the
`following non-limiting examples: Zarbee’s Children’s Sleep with Melatonin Gummies, Zarbee’s
`Children’s Sleep Chewable Tablet with Melatonin Supplement, and Zarbee’s Sleep with Melatonin
`Gummy. For each product, the label claims a specific amount of melatonin per serving, e.g., 1 mg or
`3 mg. Illustrative example products are shown below:
`
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`CLASS ACTION COMPLAINT
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`Case 5:22-cv-04465-SVK Document 1 Filed 08/02/22 Page 8 of 21
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`CLASS ACTION COMPLAINT
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`Case No.
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`Case 5:22-cv-04465-SVK Document 1 Filed 08/02/22 Page 9 of 21
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`All Zarbee’s Melatonin products are substantially similar. They all advertise
`20.
`melatonin as an active ingredient and claim to have a specific amount of melatonin per serving.
`D.
`Scientific testing reveals that Zarbee’s Melatonin has substantial and random
`overdoses of melatonin.
`Liquid Chromatography-Mass Spectrometry analysis (LC-MS) can accurately measure
`21.
`the true amount of melatonin in an over-the-counter supplement. For Zarbee’s Melatonin, a
`university mass-spectrometry laboratory used LC-MS to test Zarbee’s Melatonin. The lab tested
`bottles from different manufacturing batches (lots). The results are summarized below:
`
`
`Zarbee’s type
`
`Claimed
`melatonin dose
`(mg / gummy)
`
`True
`melatonin dose
`(mg / gummy)12
`
`True melatonin
`dose
`(%)13
`
`Zarbee’s Children’s
`Sleep with Melatonin
`Gummies (Lot#
`2124301250)
`
`Zarbee’s Children’s
`Sleep with Melatonin
`Gummies (Lot#
`FD21080709245)14
`22.
`As the results show, the melatonin content of Zarbee’s is consistently (and randomly)
`overdosed. Consistent with the study of Canadian brands, the dosages vary substantially between
`lots.
`
`1.00
`
`1.00
`
`1.29
`
`2.13
`
`+128%
`
`+216%
`
`Zarbee’s labelling is false and misleading to reasonable consumers.
`E.
`By selling a melatonin supplement for sleep (i.e., a supplement that alters brain
`23.
`chemistry), Zarbee’s is representing to consumers that its products are accurately dosed and labelled.
`When a consumer picks up a bottle of Zarbee’s Melatonin, they reasonably expect that it actually has
`the dosage for which Zarbee’s designed the recommended serving. No reasonable consumer expects
`that a melatonin supplement has a random and substantial overdose of melatonin, compared to what it
`
`
`12 The lab tested three gummies per bottle and averaged the results. There was little variance
`in the melatonin content between gummies in the same bottle.
`13 The percentage ratio of the true dose to the claimed dose.
`14 Ms. Lopez’s bottle.
`CLASS ACTION COMPLAINT
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`Case No.
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`Case 5:22-cv-04465-SVK Document 1 Filed 08/02/22 Page 10 of 21
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`is supposed to have. And specifically, when a bottle of Zarbee’s says it has a particular amount of
`melatonin per serving (e.g., 1 mg), consumers expect this to be accurate. This is especially true for
`melatonin marketed for children.
`24.
`At a bare minimum, reasonable consumers would expect that if the true amount of
`melatonin in Zarbee’s supplements was substantially (and randomly) higher than the listed amount,
`Zarbee’s would prominently disclose this fact. Consumers do not know the accuracy of Zarbee’s
`dosing—that is exclusively within Zarbee’s knowledge. And Zarbee’s affirmatively represents that
`its products have a specific amount of melatonin, e.g., 1 mg (for children) and 3 mg (for adults).
`25.
`Zarbee’s labelling is false and misleading to consumers in multiple respects. The
`dosage of Zarbee’s Melatonin is not well-controlled and consistent with the dosages for which
`Zarbee’s designed the recommended servings. Zarbee’s Melatonin does not have the amount of
`melatonin claimed on the label. And Zarbee’s does not even mention that the actual dosage is
`substantially higher.
`26.
`The inaccurate dosing and labelling of Zarbee’s Melatonin is highly material to
`reasonable consumers. Consumers need melatonin supplements to be accurately dosed and labelled,
`so that consumers aren’t unknowingly ingesting more neurohormone than they intend to take. No
`reasonable consumer wants to buy and ingest a supplement containing a random, undisclosed amount
`of melatonin. No reasonable consumer wants a product that even has a material risk of such
`problems. This is particularly true for melatonin supplements aimed at children.
`27.
`Zarbee’s recognizes that its consumers demand accuracy in dosing and labelling.
`Zarbee’s sells different types of Zarbee’s Melatonin, with different claimed strengths, so that
`consumers can choose what is right for them. Zarbee’s website claims that “Each gummy contains 1
`mg melatonin, which is safe” and can “help your little one.”15 But it is not true: the products contain
`substantially more melatonin.
`28.
`Zarbee’s admits that it is undesirable and even dangerous for consumers to ingest
`more melatonin than the recommended dosage on the bottles. Zarbee’s states on its bottles: “Take
`only as directed. Do not exceed recommended dosage.” 16 But due to Zarbee’s inaccurate dosing and
`
`15 https://www.zarbees.com/product/childrens-sleep-with-melatonin-gummies/
`
`
`CLASS ACTION COMPLAINT
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`Case No.
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`Case 5:22-cv-04465-SVK Document 1 Filed 08/02/22 Page 11 of 21
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`labelling, Zarbee’s customers are unknowingly doing exactly what Zarbee’s recommends against
`(exceeding the recommended dosages).
`29.
`As described above, Zarbee’s claims that it determines the melatonin content of “each
`gummy” to ensure “safety.” And it is a standard practice in the industry for manufacturers to test the
`potency of supplements before they are distributed. Accordingly, Zarbee’s tests the melatonin
`content of its products before distribution, and therefore knows that its products are systematically
`overdosed and its labels are misleading consumers. In the alternative, Zarbee’s recklessly chooses
`not to test the potency of its supplements or remains willfully blind to the melatonin content of its
`supplements.
`Zarbee’s overcharges millions of consumers.
`F.
`Zarbee’s false and misleading labelling drives the demand for Zarbee’s Melatonin. As
`30.
`explained above, consumers demand melatonin that is accurately dosed and labelled. This is
`recognized by scientists, Consumer Reports, and Zarbee’s itself. If Zarbee’s told the truth—that its
`dosing and labelling was seriously inaccurate—the price of its products would crater. For example,
`on the Target website, a bottle of Zarbee’s Children’s Sleep with Melatonin Gummies costs $16.89.
`If consumers knew the truth—that this bottle likely has some random and excessive amount of
`melatonin per serving—Zarbee’s could not sell it for anything close to $16.89 (or sell it at all).
`Plaintiff and each class member paid a substantial price premium driven by Zarbee’s false and
`misleading labelling.
`31.
`In fact, without accurate dosing and labelling, Zarbee’s Melatonin is worthless. What
`reasonable consumer wants to buy a supplement that alters brain chemistry, knowing that it may be
`randomly and substantially overdosed? What consumer would want to buy such a product for their
`children? If Zarbee’s told the truth, its melatonin products could not sell. Plaintiff and each class
`member paid for Zarbee’s Melatonin products that are, in truth, worthless. Thus, the full economic
`injury here is the entire price of the Zarbee’s Melatonin that Plaintiff and class members purchased.
`G. Ms. Lopez was misled and harmed by Zarbee’s misleading labelling.
`32.
`Like millions of other consumers, Ms. Lopez bought Zarbee’s Melatonin and relied on
`the accuracy of Zarbee’s dosing and labelling.
`
`CLASS ACTION COMPLAINT
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`Case No.
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`Case 5:22-cv-04465-SVK Document 1 Filed 08/02/22 Page 12 of 21
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`In or around early June 2022, Ms. Lopez bought a bottle of Zarbee’s Children’s Sleep
`33.
`with Melatonin Gummies (Lot # FD21080709245) from a Walmart in Salinas, to give to her child
`(age 8). Because she was buying a melatonin supplement that could alter brain chemistry in her
`child, she relied on the fact that Zarbee’s dosages were well-controlled (i.e., that the actual dosage
`would match the recommended dosages). She read and relied on the accuracy of the melatonin
`content on the label, when buying the product and deciding to give it to her child. She would not
`have purchased the product if she knew that it was not accurately dosed or labelled. In fact, knowing
`the truth, the product is worthless to her.
`34.
`Plaintiff wants Zarbee’s to fix its manufacturing practices and sell its melatonin
`products with accurate dosing and labelling. If Zarbee’s fixes its products, so that they are accurately
`dosed and labelled, she would buy them again. But given Zarbee’s past deception, Plaintiff cannot
`rely on Zarbee’s word alone that it has fixed the problem. Plaintiff faces an imminent threat of harm
`because she will not be able to rely on Zarbee’s labels in the future, and will not be able to buy
`Zarbee’s Melatonin, even if Zarbee’s claims to have fixed the issue. To buy Zarbee’s products again,
`Plaintiff needs the Court to enter an order forbidding Zarbee’s from selling its melatonin unless it has
`fixed the dosing and labelling problem. With that Court order in hand, Plaintiff could and would buy
`Zarbee’s Melatonin again. And with that order in hand, millions of other consumers will be protected
`from being deceived like Plaintiff was deceived.
`V.
`Class action allegations.
`35.
`Plaintiff brings her claims individually and on behalf of the following class and
`subclasses:
`
`Class or Subclass Name
`Nationwide Class
`
`Multi-State Consumer
`Protection Subclass
`
`Definition
`All persons who purchased
`Zarbee’s Melatonin in the
`United States during the
`applicable statute of
`limitations.
`All persons who purchased
`Zarbee’s Melatonin in the
`identified states (see Count 1)
`during the applicable statute
`of limitations.
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`CLASS ACTION COMPLAINT
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`Case No.
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`Case 5:22-cv-04465-SVK Document 1 Filed 08/02/22 Page 13 of 21
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`California Subclass
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`All persons who purchased
`Zarbee’s Melatonin in
`California during the
`applicable statute of
`limitations.
`The following people are excluded from the class and the subclasses: (1) any Judge or
`36.
`Magistrate Judge presiding over this action and the members of their family; (2) Defendant,
`Defendant’s subsidiaries, parents, successors, predecessors, and any entity in which the Defendant or
`its parents have a controlling interest and their current employees, officers and directors; (3) persons
`who properly execute and file a timely request for exclusion from the Class; (4) persons whose
`claims in this matter have been finally adjudicated on the merits or otherwise released; (5) Plaintiff’s
`counsel and Defendant’s counsel, and their experts and consultants; and (6) the legal representatives,
`successors, and assignees of any excluded persons.
`Numerosity
`37.
`The proposed class contains members so numerous that separate joinder of each
`member of the class is impractical. There are millions of proposed class members.
`Commonality
`38.
`There are questions of law and fact common to the proposed class. Common
`questions of law and fact include, without limitation:
`• Whether Zarbee’s Melatonin products are accurately dosed and labelled;
`• Whether Zarbee’s labelling is misleading to reasonable consumers;
`• Whether Zarbee’s violated state consumer protection laws;
`• The monetary relief needed to reasonably compensate Plaintiff and the proposed class.
`Typicality
`39.
`Plaintiff’s claims are typical of the proposed class. Like the proposed class, Plaintiff
`purchased Zarbee’s Melatonin.
`Predominance and Superiority
`40.
`The prosecution of separate actions by individual members of the proposed class
`would create a risk of inconsistent or varying adjudication with respect to individual members, which
`would establish incompatible standards for the parties opposing the class. For example, individual
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`adjudication would create a risk that Zarbee’s Melatonin labelling is found to be misleading for some
`consumers, but not other similarly-situated consumers.
`41.
`Common questions of law and fact predominate over any questions affecting only
`individual members of the proposed class. These common legal and factual questions arise from
`central issues which do not vary from class member to class member, and which may be determined
`without reference to the individual circumstances of any particular class member. For example, a core
`liability question is common: whether Zarbee’s labelling is misleading to reasonable consumers.
`42.
`A class action is superior to all other available methods for the fair and efficient
`adjudication of this litigation because individual litigation of each claim is impractical. It would be
`unduly burdensome to separately litigate millions of individual claims.
`Classwide injunctive relief
` 43. Zarbee’s has acted or refused to act on grounds that apply generally to the class, so
`that final injunctive relief is appropriate respecting the class as a whole.
`VI. Claims.
` Count 1: Violations of State Consumer Protection Acts
`(on behalf of Plaintiff and the Multi-State Consumer Protection Subclass)
`Plaintiff incorporates each and every factual allegation set forth above.
`44.
`As alleged below, Plaintiff brings individual and subclass claims based on California
`45.
`law. For the Multi-State Consumer Protection Subclass, Plaintiff brings this count for violations of
`state consumer protection laws that are materially-similar to the laws of California, including:
`State
`Statute
`California
`Cal. Bus. & Prof. Code § 17200, and the
`following; Id. §17500, and the following; Cal. Civ.
`Code §1750 and the following.
`Conn. Gen Stat. Ann. § 42- 110, and the following.
`815 ILCS § 501/1, and the following.
`Md. Code Ann. Com. Law, § 13-301, and the
`following.
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`Connecticut
`Illinois
`Maryland
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`Mo. Rev. Stat. § 407, and the following.
`Missouri
`N.Y. Gen. Bus. Law § 349, and the following.
`New York
`46.
`Each of these statutes is materially similar. Each broadly prohibits deceptive conduct
`in connection with the sale of goods to consumers. No state requires individualized reliance, or proof
`of defendant’s knowledge or intent. Instead, it is sufficient that the deceptive conduct is misleading
`to reasonable consumers and that the conduct proximately caused harm.
`47.
`As alleged in detail above, Zarbee’s misrepresentations and omissions are misleading
`to reasonable consumers in a material way. Zarbee’s false and misleading labelling was a substantial
`factor in Plaintiff’s purchase decisions and the purchase decisions of class members.
`48.
`Plaintiff and class members were injured as a direct and proximate result of Zarbee’s
`conduct because: (a) they would not have purchased Zarbee’s Melatonin if they had known that
`Zarbee’s has serious and systematic problems with its dosing and labelling; (b) they overpaid for the
`products because the products are sold at a price premium due to Zarbee’s misleading labelling; or (c)
`they received products that were, in truth, worthless.
` Count 2: Violation of California Unfair Competition Law (UCL)
`(on behalf of Plaintiff and the California Subclass)
`Plaintiff incorporates each and every factual allegation set forth above.
`Plaintiff brings this cause of action individually and on behalf of the California
`
`49.
`50.
`Subclass.
`Zarbee’s has violated California’s Unfair Competition Law (UCL) by engaging in
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`unlawful, fraudulent, and unfair conduct (i.e., violating each of the three prongs of the UCL).
`The Unlawful Prong
`52.
`Zarbee’s engaged in unlawful conduct by violating the FAL, as alleged below and
`incorporated here.
`The Fraudulent Prong
`53.
`As alleged in detail above, Zarbee’s labelling is false and misleading. Its labelling is
`likely to deceive, and did deceive, Plaintiff and other reasonable consumers.
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`The Unfair Prong
`55.
`Zarbee’s conduct caused substantial injury to Plaintiff and subclass members. The
`harm to Plaintiff and the subclass greatly outweighs the public utility of Defendant’s conduct (which
`is none). Inaccurately dosed and labelled melatonin supplements have no public utility. This injury
`was not outweighed by any countervailing benefits to consumers or competition. Misleading labels
`only injure healthy competition and harm consumers.
`56.
`Plaintiff and the class could not have reasonably avoided this injury. As alleged
`above, Zarbee’s misrepresentations and omissions were deceiving to reasonable consumers.
`57.
`Defendant’s conduct, as alleged above, was immoral, unethical, oppressive,
`unscrupulous, and substantially injurious to consumers
`58.
`Defendant’s conduct violated the public policy against false and misleading
`advertising, which is tethered to the CLRA and FAL.
`* * *
`For all prongs, Plaintiff saw, read and reasonably relied on Zarbee’s
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`misrepresentations and omissions when purchasing Zarbee’s Melatonin. Classwide reliance can be
`inferred because Defendant’s misrepresentations were material, i.e., a reasonable consumer would
`consider them important in deciding whether to buy Zarbee’s Melatonin.
`60.
`Zarbee’s misrepresentations and omissions were a substantial factor in Plaintiff’s
`purchase decision and the purchase decisions of class members.
`61.
`Plaintiff and class members were injured as a direct and proximate result of Zarbee’s
`conduct because: (a) they wo