Case 5:22-cv-00290-GAP-PRL Document 1 Filed 06/24/22 Page 1 of 25 PageID 1
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`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`OCALA DIVISION
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`Sandra Adams, individually and on behalf of
`all others similarly situated,
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`Plaintiff,
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`Class Action Complaint
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`- against -
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`Jury Trial Demanded
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`The Kraft Heinz Company,
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`Defendant.
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`Plaintiff alleges upon information and belief, except for allegations pertaining to Plaintiff,
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`which are based on personal knowledge:
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`1. Kraft Heinz Food Company (“Defendant”) manufactures, labels, markets, and sells
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`concentrated flavored liquids that purport to taste like various fruits under the MiO brand of water
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`enhancers (the “Products”).
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`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`OCALA DIVISION
`
`
`Sandra Adams, individually and on behalf of
`all others similarly situated,
`
`
`
`Plaintiff,
`
`Class Action Complaint
`
`- against -
`
`Jury Trial Demanded
`
`The Kraft Heinz Company,
`
`Defendant.
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`
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`
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`
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`Plaintiff alleges upon information and belief, except for allegations pertaining to Plaintiff,
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`which are based on personal knowledge:
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`1. Kraft Heinz Food Company (“Defendant”) manufactures, labels, markets, and sells
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`concentrated flavored liquids that purport to taste like various fruits under the MiO brand of water
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`enhancers (the “Products”).
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`Case 5:22-cv-00290-GAP-PRL Document 1 Filed 06/24/22 Page 2 of 25 PageID 2
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`I.
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`CONSUMER DEMAND FOR NATURAL FLAVOR
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`2.
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`Consumers are increasingly concerned about the ingredients added to what they eat
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`and drink.
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`3.
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`Surveys have shown that consumers are less likely to buy beverages which have
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`artificial ingredients.
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`4. Within the spectrum of artificial ingredients, consumers increasingly strive to avoid
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`artificial flavoring ingredients and seek to consume products with only natural flavors.
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`5. As reported by the Wall Street Journal, “As consumer concern rises over artificial
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`ingredients, more food companies are reconstructing recipes” to remove artificial flavors.1
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`6. According to Paul Manning, chief executive officer and president of Sensient
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`Technologies, “Consumer desire for naturally flavored products is an emerging trend.”2
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`7. A recent survey reported that over 82% of consumers believe that foods with artificial
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`flavors are less healthy than those promoted as containing natural flavors and/or not containing
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`artificial flavors.
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`8.
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`Consumers seek to avoid artificial flavors because they are weary of ingredients
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`which are highly processed with chemical additives and synthetic solvents in laboratories.
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`9. According to Nielsen, the absence of artificial flavors is very important for over 40%
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`of respondents to their Global Health & Wellness Survey.
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`10. One scholar theorized “the preference for natural products appeals to a moral
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`1 Lauren Manning, How Big Food Is Using Natural Flavors to Win Consumer Favor, Wall Street Journal.
`2 Keith Nunes, Using Natural Ingredients To Create Authentic, Fresh Flavors, Food Business News, Sept. 20, 2018.
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`Case 5:22-cv-00290-GAP-PRL Document 1 Filed 06/24/22 Page 3 of 25 PageID 3
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`ideology and offers a moral satisfaction.”3
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`11. The trade journal, Perfumer & Flavorist, described “The Future of Artificial Flavors
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`& Ingredients” as bleak, given consumer opposition to these synthetic ingredients.4
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`12. Mintel announced that American consumers avoidance of artificial flavors is just as
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`strong as their desire for natural flavors, in its Report, “Artificial: Public Enemy No. 1.”5
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`13. Nielsen reported that 62% of consumers try to avoid artificial flavors.
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`14. New Hope Network concluded that 71% of consumers avoid artificial flavors.
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`15. Label Insight determined that 76% of consumers avoid artificial flavors.
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`16. As reported by Forbes, 88% of consumers consider foods without artificial flavors
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`to be more natural and healthier than foods with artificial flavors and would pay more for such
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`foods.
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`II. PRODUCTS REPRESENTED AS CONTAINING ONLY NATURAL FLAVORS
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`17. Defendant markets and advertises the Products with the standalone representations
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`“NATURAL FLAVOR WITH OTHER NATURAL FLAVOR.”
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`3 Rozin, P., Spranca, M., Krieger, Z., Neuhaus, R., Surillo, D., Swerdlin, A., & Wood, K. (2004). Preference for
`natural: Instrumental and ideational/moral motivations, and the contrast between foods and medicines. Appetite, 43(2),
`147–154. doi:10.1016/j.appet.2004.03.005.
`4 Jim Kavanaugh, The Future of Artificial Flavors & Ingredients, Perfumer & Flavorist, June 12, 2017.
`5 Alex Smolokoff, Natural Color And Flavor Trends In Food And Beverage, Natural Products Insider, Oct. 11, 2019;
`Thea Bourianne, Exploring Today’s Top Ingredient Trends And How They Fit Into Our Health-Conscious World,
`March 26-28, 2018; Nancy Gagliardi, Consumers Want Healthy Foods – And Will Pay More For Them, Forbes, Feb
`18, 2015.
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`18. The representations that the Products contain only “Natural Flavor With Other
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`Natural Flavors” appeals to more than the seven out of ten consumers who seek to avoid artificial
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`flavoring ingredients, as these synthetic ingredients are believed to be associated with detrimental
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`health and environmental effects.6
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`19. By promoting the Products as containing only “Natural Flavor With Other Natural
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`Flavor,” reasonable consumers are led to believe that the Products’ flavoring and flavoring profile
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`comes solely from natural ingredients.
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`20. The Products, however, contain the artificial and/or synthetic flavoring ingredient
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`“Malic Acid.”
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`Berry Pomegranate
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`Tropical Cherry
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`6 Alex Smolokoff, Natural Color And Flavor Trends In Food And Beverage, Natural Products Insider, Oct. 11, 2019;
`Thea Bourianne, Exploring Today’s Top Ingredient Trends And How They Fit Into Our Health-Conscious World,
`March 26-28, 2018; Nancy Gagliardi, Consumers Want Healthy Foods – And Will Pay More For Them, Forbes, Feb
`18, 2015.
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`Case 5:22-cv-00290-GAP-PRL Document 1 Filed 06/24/22 Page 5 of 25 PageID 5
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`INGREDIENTS: WATER, CITRIC ACID,
`MALIC
`ACID,
`GUM
`ARABIC,
`POTASSIUM CITRATE, CONTAINS LESS
`THAN 2% OF NATURAL FLAVOR,
`SUCRALOSE
`AND
`ACESULFAME
`POTASSIUM (SWEETENERS), SUCROSE
`ACETATE
`ISOBUTYRATE, RED 40,
`BLUE
`1,
`POTASSIUM
`SORBATE
`(PRESERVATIVE).
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`INGREDIENTS: WATER, MALIC ACID,
`CITRIC ACID, NATURAL FLAVOR,
`CONTAINS
`LESS
`THAN
`2% OF
`NIACINAMIDE (VITAMIN B3), VITAMIN
`B6, VITAMIN B12, STEVIA LEAF
`EXTRACT, SODIUM CITRATE, RED 40,
`BLUE
`1,
`POTASSIUM
`SORBATE
`(PRESERVATIVE).
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`21.
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`In fact, the Products contain more of the malic acid ingredient than the natural
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`flavoring ingredients, listed as the third and second most predominant ingredients by weight.
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`22. Unbeknownst to consumers, the ingredient list does not disclose that malic acid is an
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`artificial petrochemical which provides flavoring to the Products.
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`23. Federal and identical state regulations require ingredients to be designated by their
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`specific name instead of their generic name. 21 C.F.R. § 101.4(b).
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`24. Defendant only lists “Malic Acid,” the generic name for this ingredient, even though
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`its specific name is “DL-Malic Acid.”
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`III. COMPONENTS OF TASTE
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`25. A flavor is a substance the function of which is to impart taste. See 21 C.F.R. §
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`101.22(a)(1) and (3).
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`26. Taste is the combination of sensations arising from specialized receptor cells located
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`in the mouth.7
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`27. Taste can be defined as sensations of sweet, sour, salty, bitter, and umami.
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`7 Gary Reineccius, Flavor Chemistry and Technology § 1.2 (2d ed. 2005).
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`28. However, limiting taste to five categories suggests that taste is simple, which is not
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`true.
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`29. For example, the taste of sour includes the sourness of vinegar (acetic acid), sour
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`milk (lactic acid), lemons (citric acid), apples (malic acid), and wines (tartaric acid).
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`30. Each of those acids is responsible for unique sensory characteristics of sourness.
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`31. Fruit flavors are the sum of the interaction between sugars, acids, and volatile
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`compounds.8
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`32. Sugars, mainly glucose and fructose, and their ratio to acids, such as citric and malic
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`acid, determine the sweetness of fruits.
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`33. The table below shows the acid composition of numerous fruits.
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`Fruit
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`Predominant Acid Secondary Acids
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`Tartaric Acid, Fumaric Acid
`Malic Acid (95%)
`Apple
`Malic Acid (70%) Citric Acid, Tartaric Acid
`Apricot
`Citric Acid
`Malic Acid
`Blackberry
`Citric Acid
`Malic Acid, Quinic Acid
`Blueberry
`Malic Acid (94%)
`Tartaric Acid
`Cherry
`Cherry (Tropical) Malic Acid (32%) Citric Acid
`Grape
`Malic Acid (60%)
`Tartaric Acid
`Grapefruit
`Citric Acid
`Malic Acid
`Guava
`Citric Acid
`Malic Acid
`Lime, Lemon
`Citric Acid
`Malic Acid
`Mango
`Citric Acid
`Malic Acid, Tartaric Acid
`Orange
`Citric Acid
`Malic Acid
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`8 Y.H. Hui, et al., Handbook of Fruit and Vegetable Flavors, p. 693 (2010).
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`Peach
`Pear
`Pineapple
`Pomegranate
`Raspberry
`Strawberry
`Tamarind
`Watermelon
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`Malic Acid (73%) Citric Acid
`Malic Acid (77%) Citric Acid
`Citric Acid
`Malic Acid
`Malic Acid (>50%) Citric Acid (>22%)
`Citric Acid
`Malic Acid, Tartaric Acid
`Citric Acid
`Malic Acid, Tartaric Acid
`Tartaric Acid
`Citric Acid, Malic Acid
`Malic Acid (99%)
`Fumaric Acid
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`34.
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`In berries such as blackberries, blueberries, raspberries and strawberries, malic acid
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`is the second most significant fruit acid.
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`35.
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`In pomegranates, cherries, and tropical cherries (acerola), malic acid is the most
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`significant fruit acid.
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`36. Malic acid contributes and enhances the fruity, sweet and sour taste of these and other
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`fruits.
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`IV. CHEMICAL STRUCTURE OF MALIC ACID
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`37. Malic acid (molecular formula C4H6O5) is the common name for 1-hydroxy-1, 2-
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`ethanedicarboxylic acid.
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`38. Malic acid has two isomers, or different arrangements of atoms in the molecule, L-
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`malic acid, and D-malic acid. 21 C.F.R. § 184.1069.
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`39. An isomer is a molecule sharing the same atomic make-up as another but differing
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`in structural arrangements.
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`40. Stereoisomers contain different types of isomers, each with distinct characteristics
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`that separate each other as different chemical entities with different chemical properties.
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`41. Stereoisomers differ from each other by spatial arrangement, meaning different
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`atomic particles and molecules are situated differently in any three-dimensional direction by even
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`one degree.
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`42. An enantiomer is a type of stereoisomer that is a mirror-image and cannot be
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`superimposed.
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`43. Enantiomers are like right and left-hand versions of the same molecular formula.
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`44. D-Malic Acid and L-Malic Acid are enantiomers.
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`45. Below are skeletal formulas of the enantiomers D-Malic Acid and L-Malic Acid.
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`46. L-malic acid occurs naturally in various fruits and is known for providing sweetness
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`and tartness, among other flavors.
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`47. D-Malic Acid does not occur naturally.
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`48. D-Malic Acid is most commonly found as a racemic mixture of the D isomer and L
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`isomer, DL-Malic Acid, which is commercially made from petroleum products.
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`V. ADDITION OF DL-MALIC ACID
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`49. Adding DL-Malic Acid to a solution of natural flavorings containing L-Malic Acid
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`changes the concentration of malic acid in the solution and the ratio of total malic acid to sugars
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`in that solution.
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`50. Natural sugars – like glucose, fructose, and sucrose – combined with artificial DL-
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`Malic Acid in a ratio engineered to resemble the natural chemical combination of sugar and L-
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`Malic Acid found in the characterizing fruit flavors of the Product is not equivalent to the natural
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`flavor of those characterizing fruits and flavors.
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`51. A natural chemical combination of sugar and L-Malic Acid, altered by adding
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`artificial DL-Malic Acid, is no longer equivalent to the original chemical combination of sugar
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`and L-Malic Acid, and is therefore no longer the natural flavor of those fruits.
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`52. Defendant includes DL-Malic Acid to help make the Products taste like the fruits
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`featured on the Product labels natural taste.
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`53. Defendant adds artificial DL-Malic Acid to the Products to create, enhance, simulate,
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`and/or reinforce the sweet, fruity, and tart like taste that consumers associate with the fruits
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`featured on the Product labels.
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`54. Defendant had the option to add naturally extracted L-Malic Acid or natural fruit
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`flavors but instead used artificial DL-Malic Acid because it cost less or more accurately resembled
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`the flavors of the fruits featured on the Product labels than other ingredients.
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`55. DL-Malic Acid is synthetically produced from petroleum in a high-pressure, high-
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`temperature, catalytic process.
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`56. Since there are natural and artificial types of malic acid, laboratory analysis is
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`necessary to identify which type was used in the Products.
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`57. Laboratory analysis concluded the Products contain artificial, DL-Malic Acid,
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`instead of the natural, L-Malic Acid.
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`VI. REQUIREMENTS FOR LABELING
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`58. Federal and identical state regulations prohibit false and deceptive identification of
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`the source of a food or beverage’s characterizing flavors.
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`59. Federal regulations define an artificial flavor as “any substance, the function of which
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`is to impart flavor, which is not derived from a spice, fruit or fruit juice, vegetable or vegetable
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`juice, edible yeast, herb, bark, bud, root, leaf or similar plant material, meat, fish, poultry, eggs,
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`dairy products, or fermentation products thereof.” 21 C.F.R § 101.22(a)(1).
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`60. Natural flavor is defined as “essential oil, oleoresin, essence or extractive, protein
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`hydrolysate, distillate, or any product of roasting, heating or enzymolysis, which contains the
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`flavoring constituents” from fruits or vegetables, “whose significant function in food is flavoring
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`rather than nutritional.” 21 C.F.R § 101.22(a)(3).
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`61. DL-Malic Acid is not a “natural flavor” as this term is defined by federal and state
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`regulations and is not derived from a fruit or vegetable or any other natural source.
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`62. A combination of sugar and DL-Malic Acid in a ratio resembling a fruit flavor cannot
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`be derived from a fruit or vegetable.
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`63. A mixture of sugar, natural L-Malic Acid, and artificial DL-Malic Acid combined in
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`a way to resemble the natural ratio of sugar and L-Malic Acid found in the natural flavors of the
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`Products cannot be derived from a fruit or vegetable.
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`64. A combination of sugars and artificial DL-Malic Acid engineered to resemble the
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`natural ratio of sugars and natural L-Malic Acid that make up the natural flavor of the fruits in the
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`Products is not a natural flavor.
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`65. The natural flavor of the fruits in controversy is heavily dependent on a specific ratio
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`of sugar and L-Malic Acid, while the Products’ flavors depend upon a ratio of sugar and DL-Malic
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`Acid.
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`66. DL-Malic Acid could function as a flavor enhancer or PH balancer.
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`67. A flavor enhancer is “added to supplement, enhance, or modify the original taste and
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`or aroma of a food without imparting a characteristic taste or aroma of its own.” 21 C.F.R. §
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`170.3(o)(11).
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`68. For example, malic acid added to vinegar (ascetic acid) dishes like barbecue pork,
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`coleslaw, or pickled eggs would most likely not fundamentally alter the underlying vinegar flavors.
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`69. However, because the flavor imparted by malic acid is a core component of the
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`Products’ characterizing fruit flavors, DL-Malic Acid does not function as a flavor enhancer.
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`70. Under these circumstances, artificial DL-Malic Acid fundamentally alters the
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`original combination of sugar and natural L-Malic Acid so that the characterizing fruit flavors of
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`the Products are no longer a natural ratio of sugar and L-Malic Acid but instead are an artificial
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`ratio of sugar and DL-Malic Acid.
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`71. PH balancers are “substances added to change or maintain active acidity or basicity,
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`including buffers, acids, alkalis, and neutralizing agents.” 21 C.F.R. § 170.3(o)(23).
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`72. The malic acid used in the Products is not a PH balancer because it is not necessary
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`to change or maintain active acidity or basicity.
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`73.
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`Irrespective of the purpose Defendant may claim DL-Malic Acid was added to the
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`Product, it has the same effect on its characterizing fruit flavors.
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`74. Defendant does not have the ability to command DL-Malic Acid to only perform
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`certain functions and cannot decide which malic acid constitutes flavor and which malic acid
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`constitutes only a flavor enhancer or PH balancer.
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`75. The labels on Defendants’ Products state that they are fruit flavored Products which
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`is to be considered the characterizing flavor identified on the Products’ front labels. 21 C.F.R. §
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`101.22.
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`76. Federal and state regulations require the Products to disclose whether the
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`characterizing flavors are from fruits, other natural sources, and/or from artificial or chemical
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`sources, such as DL-Malic Acid, from petroleum. 21 C.F.R. § 101.22(i).
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`77. Since the Products contain an artificial flavor, DL-Malic Acid, that simulates,
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`resembles, and reinforces the characterizing flavors, federal regulations require that the name of
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`the characterizing flavors “shall be accompanied by the word(s) ‘artificial’ or ‘artificially
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`flavored,’” such as “Artificial Berry Pomegranate Flavor” and “Artificial Tropical Cherry Flavor.”
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`21 C.F.R. § 101.22(i)(2).
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`78. The statements, “Natural Flavor With Other Natural Flavor,” are misleading based
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`on the presence of the artificial flavoring ingredient DL-Malic Acid in the Products.
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`79. Defendant’s claims that the Product’s contain solely “Natural Flavor With Other
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`Natural Flavor,” and omission of any reference to artificial flavor on the front labeling and
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`ingredient list misleads consumers like Plaintiff to expect only natural flavors in the Products.
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`80. Consumers are unable to discern if the malic acid listed in the ingredients is the
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`artificial version without a chemistry kit.
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`81. Defendant is required to inform consumers if the Products contain the artificial
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`version of malic acid, instead of merely providing its generic name.
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`82. The Products’ characterizing fruit flavors containing DL-Malic Acid resemble the
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`natural taste of those fruits.
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`83. Plaintiff purchased the Products because the packaging claimed they solely contained
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`“Natural Flavor With Other Natural Flavor” to provide their characterizing fruit taste, which she
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`understood as meaning the flavor was only from natural, and not artificial flavoring ingredients.
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`84. Plaintiff would not have been able to understand that the statement, “Natural Flavor
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`With Other Natural Flavor,” was not true and was misleading, without an advanced understanding
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`of organic chemistry and without performing chemical analysis on the Products.
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`85. Plaintiff was unaware that the Products contained artificial DL-Malic Acid when she
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`purchased them, and that this synthetic ingredient affected their characterizing flavors.
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`86. Plaintiff was deceived into paying money for products she did not want, or worth
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`less than what Plaintiff paid for them, because the Products were labeled with “Natural Flavor
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`With Other Natural Flavor,” which she understood to mean their taste was provided only by
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`natural, and not artificial flavoring ingredients.
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`87. Worse than the lost money, Plaintiff was deprived of her protected interest to choose
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`the foods and ingredients she ingests.
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`88. Plaintiff is not, and should not be required, to chemically test the food products she
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`purchases to know their true contents.
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`89. Defendant, and not Plaintiff, knew or should have known that the statements,
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`“Natural Flavor With Other Natural Flavor,” was false, deceptive, and misleading, and that
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`Plaintiff would not be able to ascertain the Products contained artificial DL- Malic Acid unless
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`Defendant expressly told her, as required by law.
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`90. Defendant employs professional chemists to create the chemical flavor formulas of
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`the Products.
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`91. Therefore, Defendant through its employees, knew or should have known that DL-
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`Malic Acid is not naturally occurring, and that by adding DL-Malic Acid to the Products, the
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`natural flavorings, if any were ever actually added, would be fundamentally changed.
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`92. Defendant knew that DL-Malic Acid would contribute and/or enhance the tart and
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`fruity tastes in the Products.
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`93.
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` Defendant through their employees did know that DL- Malic Acid was not naturally
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`occurring and would fundamentally alter any natural combination of sugar and L-Malic Acid in
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`the Products but chose to include DL-Malic Acid because it costs less than using natural L-Malic
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`Acid and because it did not believe reasonable consumers would know the difference.
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`VII. CONCLUSION
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`94. Defendant makes other representations and omissions with respect to the Products
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`which are false or misleading.
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`95. Reasonable consumers must and do rely on a company to honestly identify and
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`describe the components, attributes, and features of a product, relative to itself and other
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`comparable products or alternatives.
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`96. The value of the Products that Plaintiff purchased was materially less than the value
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`as represented by Defendant.
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`97. Defendant sold more of the Products 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.
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`98. Had Plaintiff and proposed class members known the truth, they would not have
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`bought the Products or would have paid less for them.
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`99. As a result of the false and misleading representations, the Products are sold at a
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`premium price, approximately no less than no less than $3.27 for 1.62 oz, excluding tax and sales,
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`higher than similar products, represented in a non-misleading way, and higher than they would be
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`sold for absent the misleading representations and omissions.
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`Jurisdiction and Venue
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`100. Jurisdiction is proper pursuant to Class Action Fairness Act of 2005 (“CAFA”). 28
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`U.S.C. § 1332(d)(2).
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`101. The aggregate amount in controversy exceeds $5 million, including any statutory
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`damages, exclusive of interest and costs.
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`102. Plaintiff Sandra Adams is a citizen of Florida.
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`103. Defendant The Kraft Heinz Company is a Delaware corporation with a principal
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`place of business in Pittsburgh, Allegheny County, Pennsylvania.
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`104. The class of persons Plaintiff seeks to represent includes persons who are citizens of
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`different states from which Defendant is a citizen.
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`105. The members of the class Plaintiff seeks to represent are more than 100 because the
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`Products have been sold for several years, in thousands of locations, in the states covered by
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`Plaintiff’s proposed classes.
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`106. The Products are available to consumers from third-party grocery stores, warehouse
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`club stores, drug stores, convenience stores, big box stores, and online.
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`107. Venue in this District is proper because a substantial part of the events or omissions
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`giving rise to these claims occurred in Lake County, i.e., Plaintiff’s purchase and use of the
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`Products and her awareness and/or experiences with the issues described herein.
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`Parties
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`108. Plaintiff Sandra Adams is a citizen of Groveland, Lake County, Florida.
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`109. Defendant Kraft Heinz Food Company is a Pennsylvania limited liability corporation
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`with a principal place of business in Pittsburgh, Pennsylvania, Allegheny County.
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`110. Defendant’s predecessor, the Kraft Corporation, was started in 1903 through the sale
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`of cheese door-to-door in Chicago.
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`111. Within twenty years, Kraft had become the largest cheese manufacturer in the world.
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`112. Over the next century, Kraft would become one of the largest food and beverage
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`companies in the world, and own some of the most iconic brands, like Oscar Mayer and Jell-O.
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`113. Kraft was one of the first companies to directly advertise to consumers, not only
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`through color print ads but also on television and radio.
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`114. Kraft sponsored television and radio shows, which created goodwill and trust among
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`consumers.
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`115. Kraft is considered to be one of America’s most trusted brands.
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`116. The MiO Product line was designed as a modern and convenient alternative to
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`beverage powders, which would add flavor to water.
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`117. Defendant developed and heavily marketed MiO to capitalize on the tens of billions
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`of dollars spent annually on water by consumers.
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`118. Defendant knew that consumers like Plaintiff were seeking to avoid sugary
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`Case 5:22-cv-00290-GAP-PRL Document 1 Filed 06/24/22 Page 17 of 25 PageID 17
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`beverages and artificial flavors, and consuming more water.
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`119. The Products are available to consumers from third-party grocery stores, warehouse
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`club stores, drug stores, convenience stores, big box stores, and online.
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`120. Plaintiff purchased the Products on one or more occasions within the statutes of
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`limitations for each cause of action alleged, at stores including Walmart, at locations including
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`1450 Johns Lake Rd, Clermont, FL 34711 between 2020 and 2022, and/or among other times.
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`121. Plaintiff believed the Products contained only natural flavoring ingredients and did
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`not contain artificial flavoring ingredients.
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`122. Plaintiff bought the Products because she expected they contained only natural
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`flavoring ingredients and did not contain artificial flavoring ingredients because that is what the
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`Products’ representations said and implied.
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`123. Plaintiff relied on the words, coloring, descriptions, layout, packaging, tags, and/or
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`images on the Products, on the labeling, statements, omissions, and/or claims made by Defendant
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`or at its directions, in digital, print and/or social media, which accompanied the Products and
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`separately, through in-store, digital, audio, and print marketing.
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`124. Plaintiff was deceived because she believed the Products contained only natural
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`flavoring ingredients and did not contain artificial flavoring ingredients.
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`125. Plaintiff bought the Products at or exceeding the above-referenced price.
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`126. Plaintiff would not have purchased the Products if she knew the representations and
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`omissions were false and misleading or would have paid less for them.
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`127. Plaintiff chose between Defendant’s Products and products represented similarly, but
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`which did not misrepresent their attributes, features, and/or components.
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`17
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`Case 5:22-cv-00290-GAP-PRL Document 1 Filed 06/24/22 Page 18 of 25 PageID 18
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`128. The Products were worth less than what Plaintiff paid for them and she would not
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`have paid as much absent Defendant’s false and misleading statements and omissions.
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`129. Plaintiff intends to, seeks to, and will purchase the Products again when she can do
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`so with the assurance the Products’ representations are consistent with its abilities, attributes,
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`and/or composition.
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`130. Plaintiff is unable to rely on the labeling and representations not only of these
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`Products, but for other similar water enhancers, because she is unsure whether those
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`representations are truthful.
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`Class Allegations
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`131. Plaintiff seeks certification under Fed. R. Civ. P. 23 of the following classes:
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`Florida Class: All persons in the State of Florida
`who purchased the Products during the statutes of
`limitations for each cause of action alleged; and
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`Consumer Fraud Multi-State Class: All persons in
`the States of Alabama, South Carolina, Tennessee,
`and Virginia who purchased the Products during the
`statutes of limitations for each cause of action
`alleged.
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`132. Common questions of issues, law, and fact predominate and include whether
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`Defendant’s representations were and are misleading and if Plaintiff and class members are entitled
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`to damages.
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`133. Plaintiff's claims and basis for relief are typical to other members because all were
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`subjected to the same unfair and deceptive representations and actions.
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`134. Plaintiff is an adequate representative because her interests do not conflict with other
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`members.
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`Case 5:22-cv-00290-GAP-PRL Document 1 Filed 06/24/22 Page 19 of 25 PageID 19
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`135. No individual inquiry is necessary since the focus is only on Defendant’s practices
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`and the class is definable and ascertainable.
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`136. Individual actions would risk inconsistent results, be repetitive and are impractical
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`to justify, as the claims are modest relative to the scope of the harm.
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`137. Plaintiff's counsel is competent and experienced in complex class action litigation
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`and intends to protect class members’ interests adequately and fairly.
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`138. Plaintiff seeks class-wide injunctive relief because the practices continue.
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`Florida Deceptive and Unfair Trade Practices Act
`(“FDUTPA”), Fla. Stat. § 501.201 et seq.
`(Consumer Protection Statute)
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`139. Plaintiff incorporates by reference all preceding paragraphs.
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`140. Plaintiff and class members desired to purchase products that contained only natural
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`flavoring ingredients and did not contain artificial flavoring ingredients.
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`141. Defendant’s false and deceptive representations and omissions are material in that
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`they are likely to influence consumer purchasing decisions.
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`142. Defendant misrepresented the Products through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`143. Plaintiff relied on the representations that the Products contained only natural
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`flavoring ingredients and did not contain artificial flavoring ingredients.
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`144. Plaintiff and class members would not have purchased the Products or paid as much
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`if the true facts had been known, suffering damages.
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`Case 5:22-cv-00290-GAP-PRL Document 1 Filed 06/24/22 Page 20 of 25 PageID 20
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` Violation of State Consumer Fraud Acts
`(On Behalf of the Consumer Fraud Multi-State Class)
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`145. Plaintiff incorporates by reference all preceding paragraphs.
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`146. The Consumer Fraud Acts of the States in the Consumer Fraud Multi-State Class are
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`similar to the above-referenced consumer protection statute and prohibit the use of unfair or
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`deceptive business practices in the conduct of trade or commerce.
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`147. The members of the Consumer Fraud Multi-State Class reserve their rights to assert
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`their consumer protection claims under the Consumer Fraud Acts of the States they represent
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`and/or the consumer protection statute invoked by Plaintiff.
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`148. Defendant intended that each of the members of the Consumer Fraud Multi-State
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`Class would rely upon its deceptive conduct, and a reasonable person would in fact be misled by
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`this deceptive conduct.
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`149. As a result of Defendant’s use or employment of artifice, unfair or deceptive acts or
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`business practices, each of the members of the Consumer Fraud Multi-State Class have sustained
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`damages in an amount to be proven at trial.
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`150. Defendant’s conduct showed motive and a reckless disregard of the truth such that
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`an award of punitive damages is appropriate.
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`Breaches of Express Warranty,
`Implied Warranty of Merchantability/Fitness for a Particular Purpose and
`Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
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`151. Plaintiff incorporates by reference all preceding paragraphs.
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`152. The Products were manufactured, identified, and sold by Defendant and expressly
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`and impliedly warranted to Plaintiff and class members that they contained only natural flavoring
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`Case 5:22-cv-00290-GAP-PRL Document 1 Filed 06/24/22 Page 21 of 25 PageID 21
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`ingredients and did not contain artificial flavoring ingredients.
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`153. Defendant directly marketed the Products to Plaintiff and consumers through its
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`advertisements and marketing, through various forms of media, on the packaging, in print
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`circulars, direct mail, and targeted digital advertising.
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`154. Defendant knew the product attributes that potential customers like Plaintiff were
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`seeking and developed its marketing and labeling to directly meet those needs and desires.
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`155. Defendant’s representations about the Prod
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