`
`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
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`TAMPA DIVISION
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`Christina Van Allen, individually and on
`behalf of all others similarly situated,
`
`Plaintiff,
`
`
`
`
`
`- against -
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`Class Action Complaint
`
`Fermented Sciences, Inc.,
`
`
`
`Defendant
`
`Jury Trial Demanded
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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.
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`Fermented Sciences, Inc. (“Defendant”) manufactures, labels, markets, and sells
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`“Hard Seltzer” and “Hard Kombucha,” promoted as containing “Antioxidant Vit[amin] C,”
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`“Antioxidants,” “Real Botanicals,” and “Crafted With Live Probiotics,” among other attributes,
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`under the Flying Embers brand (“Products”).
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`Case 8:22-cv-01867 Document 1 Filed 08/15/22 Page 2 of 24 PageID 2
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`I.
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`“BETTER FOR YOU” ALCOHOLIC BEVERAGES
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`
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`2.
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`The past decade has seen the emergence of new alcoholic beverages, such as hard
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`seltzer and kombucha.
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`3. Hard seltzer is marketed to consumers “at the nexus of convenience and health.”
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`4. Hard seltzer is based on carbonated water, made from malted barley, or fermented
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`sugar, fruit flavored, with a low alcohol content, and roughly 100 calories or less, compared with
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`beers and wines that have between 100 to 400 calories.
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`5. Hard kombucha has its roots in regular kombucha, a fermented drink made with
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`sweetened black or green tea and bacteria, often blended with fruit juice.
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`6. Kombucha is touted for its probiotic properties, believed to promote digestive health.
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`7. Hard kombucha, which is alcoholic, benefits “from the halo effect of these perceived
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`health benefits.”
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`8. Hard kombucha and hard seltzer are typically low in calories, sugar, and
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`carbohydrates, organic, non-GMO and gluten-free.
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`9.
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`These products are sold in similar single-serve aluminum cans.
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`10. The marketing of hard seltzer and hard kombucha reflect the arc of regular beverages,
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`which previously sought to remove negative ingredients, such as sugar and artificial colors.
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`11. However, these beverages have begun to add back positive components, like
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`vitamins and probiotics.
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`12. The front labels of Defendant’s hard seltzer and hard kombucha emphasize
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`“Antioxidant Vit[amin] C” and “Live Probiotics.”
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`
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`
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`13. The front label of the Hard Kombucha Products states, “Fermented With Botanical
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`Adaptogens,” and “Live Probiotic[s],” while the back label lists other attributes and components.
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`3
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`Case 8:22-cv-01867 Document 1 Filed 08/15/22 Page 4 of 24 PageID 4
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`
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`Live Probiotics
`Antioxidants
`USDA Organic
`Adaptogens
`Gluten Free
`Non-GMO
`Vegan
`Keto
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`
`
`
`
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`14. The promotional materials for the Hard Kombucha Products describe them as
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`“Brewed With Benefits,” with a list of their features.
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`Light and Live
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` 0
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` Sugar 85 Calories 0 Carbs
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`ALC 4.5% VOL
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`Brewed With Benefits
`Always Live • Never Pasteurized
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`USDA Organic
`Probiotics
`Antioxidants
`Adaptogens
`Botanicals
`Gluten Free
`Vegan
`Keto
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`Contains Alcohol 21+ Please Drink Responsibly
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`4
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`15. The ingredients in the Hard Seltzer and Hard Kombucha Products are shown below.
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`Hard Seltzer
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`Hard Kombucha
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`
`
`
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`INGREDIENTS: SPARKLING WATER,
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`INGREDIENTS: KOMBUCHA CULTURE
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`ALCOHOL FROM CANE SUGAR*,
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`[WATER, SUGAR*, BLACK TEA*, YEAST,
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`PINEAPPLE FLAVOR*, CAYENNE*†,
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`BACTERIA (KOMAGATAIEBACTER SPPS.,
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`ACEROLA JUICE POWDER*, MALIC
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`BACILLUS COAGULANS SNZ 1969
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`ACID*, CITRIC ACID*, BACILLUS
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`PROBIOTIC CULTURE)], ACEROLA JUICE
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`COAGULANS SNZ 1969 PROBIOTIC*.
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`POWDER*, ADAPTOGEN ROOT BLEND
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`(GINGER*, TURMERIC*, GINSENG*),
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`ELDERBERRY*†, STRAWBERRY*†,
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`CHERRY*†, RASPBERRY*†, GOJI*†.
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`16. Hard seltzer and hard kombucha are markets with over a hundred brands, which
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`forces companies to compete for consumer dollars.
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`17. To succeed, the products must stand out from the crowd with something different.
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`A. Consumption of Alcohol is Contrary to Dietary Guidelines
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`18.
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`In 2004, the National Institute on Alcohol Abuse and Alcoholism (NIAAA) wrote:
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`5
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`Case 8:22-cv-01867 Document 1 Filed 08/15/22 Page 6 of 24 PageID 6
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`Alcoholic beverages primarily consist of water, pure alcohol
`(chemically known as ethanol [ethyl alcohol]), and variable
`amounts of sugars (i.e., carbohydrates); their content of other
`nutrients (e.g., protein, vitamins, or minerals) is usually
`negligible.
`
`19. Ethyl alcohol contains seven calories per gram, which means alcoholic beverages are
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`almost entirely empty calories.
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`20. The USDA 2020-2025 Dietary Guidelines for Americans (“DGA”) advises that
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`“[a]lcoholic beverages are not a component of the USDA Dietary Patterns.”
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`21. The DGA advises that, for “[a]dults who choose to drink…to limit daily intakes…so
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`as not to exceed daily calorie limits,” and “[d]rinking less is better for health than drinking more.”
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`22. However, alcoholic beverages account for the additional calories consumed after
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`“meeting food group recommendations in nutrient-dense forms.”
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`B. Harmful Effects of Alcohol Consumption
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`23. Congress concluded that “the American public should be informed about the health
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`hazards that may result from the consumption or abuse of alcoholic beverages,” and requires the
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`following statement on these products:
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`GOVERNMENT WARNING: (1) According to the Surgeon
`General, women should not drink alcoholic beverages during
`pregnancy because of the risk of birth defects. (2)
`Consumption of alcoholic beverages impairs your ability to
`drive a car or operate machinery, and may cause health
`problems.
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`27 U.S.C. § 215 (emphasis added).
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`24. Evidence suggests that even drinking within recommended limits may increase the
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`overall risk of death from various causes, such as from several types of cancer and some forms of
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`cardiovascular disease.
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`25. Over many years, consumption of excess alcohol can impair the body’s ability to
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`Case 8:22-cv-01867 Document 1 Filed 08/15/22 Page 7 of 24 PageID 7
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`digest and utilize nutrients.
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`26. According to the CDC, “[m]ore than 140,000 people die from excessive alcohol use
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`in the U.S. each year,” equal to “more than 380 deaths per day.”
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`27. These deaths shorten the lives of those who die by an average of 26 years, for a total
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`of 3.6 million years of potential life lost.
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`28. The cost of excessive alcohol consumption is over a quarter trillion dollars per year.
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`29. More than half of alcohol-attributable deaths are due to health effects from drinking
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`too much over time, such as various types of cancer, liver disease, and heart disease.
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`II. ADDITION OF ANTIOXIDANTS, PROBIOTICS, AND ADAPTOGENS TO
`ALCOHOL IS MISLEADING
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`30. Federal and identical state regulations require the statements on food and beverages
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`to be truthful and non-misleading. See 21 U.S.C. § 343(a)(1) and Fla. Stat. § 500.11 (deeming a
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`food misbranded when it contains a statement that is “false or misleading in any particular”).
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`31. Thus, a violation of federal food labeling laws is an independent violation of Florida
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`law and actionable as such.
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`32. The Florida Deceptive and Unfair Trade Practices Act provides protection for
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`consumers purchasing items like the Products, and states, “Unfair methods of competition,
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`unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any
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`trade or commerce are hereby declared unlawful.” Fla. Stat. § 501.204(1).
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`33. The DGA encourage consumers to select “healthful sources of nutrients as part of a
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`well-rounded diet” instead of meeting vitamin-intake guidelines through consumption of otherwise
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`nutritionally-harmful foods and beverages.
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`34. The Products are fortified with antioxidants, probiotics, and adaptogens, contrary to
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`FDA requirements for the addition of nutrients and components to food.
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`35. These requirements are intended to prohibit random fortification of foods, which
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`“result[s] in deceptive or misleading claims.” 21 C.F.R. § 104.20(a).
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`36.
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`In a 2015 Q&A Guidance Document relating to the Fortification Policy, the FDA
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`stated they did not consider “it appropriate to add vitamins and minerals to alcoholic beverages.”
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`37. According to the non-profit group Center for Science in the Public Interest (“CSPI”),
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`“claims such as ‘made with antioxidant vitamin C’ convey healthfulness and are misleading on
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`alcoholic beverages given their empty calories, association with serious health conditions, and
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`anti-nutrient properties.”
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`38. Studies have shown that vitamin-fortified snack foods influence consumers to make
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`negative diet-related decisions by making them less likely to look at the nutrition facts, more likely
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`to purchase the fortified product, more likely to think the fortified product is healthier than a
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`comparable nonfortified product, and more likely to incorrectly identify the fortified product as
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`the healthier product.
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`39. Fortification of carbonated beverages is prohibited because this type of product is
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`typically (1) high in sugar and/or empty calories, (2) not nutrient-dense, and (3) not intended to be
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`a significant part of a balanced diet.
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`A. Antioxidants
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`40. Antioxidants are compounds which may prevent or delay cell damage, and include
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`vitamins C and E, selenium, beta-carotene, lycopene, lutein, and zeaxanthin.
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`41. The antioxidant claims give the impression the Products are a healthful and nutritious
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`source of vitamin C.
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`1. Fortification with Antioxidants is Inconsistent with Regulations and Misleading
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`42. The addition of acerola in the Products is fortification because this ingredient is used
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`Case 8:22-cv-01867 Document 1 Filed 08/15/22 Page 9 of 24 PageID 9
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`to add Vitamin C, instead of to provide cherry juice.
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`43. The addition of vitamin C is not appropriately added to the Products because there is
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`not a dietary insufficiency caused by a lack of vitamin C that is recognized by the scientific
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`community to exist or known to result in a nutritional deficiency disease. 21 C.F.R. § 104.20(b).
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`44. According to the National Institutes of Health, vitamin C deficiency is rare, and the
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`average American exceeds the RDI for vitamin C.
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`45. Vitamin C is water soluble, and any excess is not stored in the body, such that more
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`vitamin C will pass through the body.
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`46. Alcohol consumption interferes with nutrient absorption, and even where a body
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`absorbs nutrients, alcohol prevents the body from using nutrients by altering the transport,
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`metabolism, and storage of nutrients.
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`47. Consumption of alcoholic beverages reduces levels of antioxidants, like vitamin C,
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`in the body.1
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`48. The addition of vitamin C to the Products is prohibited because it is not added in
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`proportion to the caloric content, because the Products contain between 85 and 135 calories, yet
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`20% of the daily value for vitamin C, based on 2,000 calories per day. 21 C.F.R. § 104.20(d).
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`49. The addition of vitamin C to the Products is prohibited because they do not contain
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`all the required nutrients per 100 calories based on 2,000 calories per day. 21 C.F.R. § 104.20(d).
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`50. For instance, the Products have no protein. 21 C.F.R. § 104.20(d)(3)
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`51. The addition of vitamin C to the Products is prohibited because even though vitamin
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`C is generally recognized as safe (“GRAS”) under the food additive regulations, upon information
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`1 Defeng Wu and Arthur I. Cederbaum. “Alcohol, Oxidative Stress, and Free Radical Damage;” Hartman et al.
`“Moderate alcohol consumption and levels of antioxidant vitamins and isoprostanes in postmenopausal women.”
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`Case 8:22-cv-01867 Document 1 Filed 08/15/22 Page 10 of 24 PageID 10
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`and belief, no GRAS notification has been submitted with respect to its addition to alcoholic
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`beverages. 21 C.F.R. § 104.20(g); 21 C.F.R. § 182.3013, 182.8013.
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`52. The addition of vitamin C to the Products is prohibited because it is not bio-available
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`when consumed via an alcohol beverage. 21 C.F.R. § 104.20(g)(2).
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`2. Negative Effects of Consuming Alcoholic Beverage Outweigh Positive Effects
`from Vitamin C
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`53. Even though the Products contain twenty percent of the daily value of vitamin C, it
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`is necessary to consume an alcoholic beverage to get this amount. See 21 C.F.R. § 101.9(c)(8).
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`54. The emphasis on “antioxidant Vit C” suggests the Products are “a healthful source
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`of nutrients, obscuring the fact that alcoholic beverages provide empty calories, are associated with
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`serious health conditions, and can impair the body’s metabolism of nutrients,” like vitamin C.2
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`55. Advertising health benefits of the Products through the addition of antioxidants
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`caused consumers, like Plaintiff, to misconstrue the negative effects of even moderate amounts of
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`alcohol consumption, in violation of 21 C.F.R. § 101.65(d).
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`56.
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` Current scientific research indicates that 20% of the daily value of vitamin C cannot
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`provide health benefits which overcome the negative effects of one alcoholic beverage.
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`57. Scientific research suggests that isolated antioxidants, such as vitamin C, do not
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`provide the same health benefits as antioxidants from a diet rich in fruits and vegetables.
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`58. Clinical studies show that vitamin C, consumed alone, lacks the same positive effects
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`when it is consumed as part of a diet rich in fruits and vegetables.
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`59.
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` Through observing the Products’ labeling, Plaintiff eschewed consumption of foods
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`which were natural sources of vitamin C.
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`2 CSPI, Vizzy Enforcement Letter, Mar. 15, 2021.
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`Case 8:22-cv-01867 Document 1 Filed 08/15/22 Page 11 of 24 PageID 11
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`B. Probiotics
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`60. The claims that the Products contain “live probiotics” are misleading nutrient content
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`claims.
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`61. Congress required that the FDA develop and implement nutrient content claims to
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`prevent consumers from being misled by the endless terms and descriptors appearing on foods.
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`62. Nutrient content claims tell consumers about the level of relevant nutrients in a food.
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`63. The criteria for nutrient content claims were the result of dozens of meetings held by
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`the FDA with consumers.
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`64. “Expressed” nutrient content claims are direct statements about the level (or range)
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`of nutrients in a food, e.g., “low sodium” or “contains 100 calories.” 21 C.F.R. § 101.13(b)(1).
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`65. “Implied” nutrient content claims can describe the food or an ingredient in a manner
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`that suggests that a nutrient is absent or present in a certain amount. 21 C.F.R. § 101.13(b)(2).
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`66. For example, a claim that a food is “high in oat bran” is understood as a way of saying
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`that food is high in fiber. 21 C.F.R. § 101.13(b)(2)(i).
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`67.
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`Implied nutrient content claims can also suggest that a food, because of its nutrient
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`content, may be useful in maintaining healthy dietary practices and is made in association with an
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`explicit claim or statement about a nutrient e.g., “healthy, contains 3 grams (g) of fat.” 21 C.F.R.
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`§ 101.13(b)(2)(ii).
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`68. Nutrient content claims are restricted to nutrients that have an established Reference
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`Daily Intake (“RDI”) or Daily Reference Value (“DRV”).
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`69.
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`If this were not the case, companies would be able to promote nutrients and
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`ingredients which were of limited or no value, and consumers would not be able to know if those
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`statements were truthful and meaningful.
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`70. Probiotics are not recognized by FDA as having an RDI or DRV.
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`71. Probiotics are defined by the Food and Agriculture Organization and the World
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`Health Organization as “live microorganisms which when administered in adequate amounts
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`confer a health benefit on the host.”
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`72. Consumer enthusiasm for probiotics is based on the unregulated messages conveyed
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`by companies which sell these products, which is a multibillion-dollar industry.
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`73. Most studies on probiotic strains – including those identified in the Products, reveal
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`no benefit to persons who are already healthy.
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`74. The only people who may benefit from probiotics are those who suffer from a small
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`number of intestinal disorders.
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`75. Experts have warned that healthy people who consume probiotics may suffer harm.
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`76. According to Dr. Matthew Ciorba, a gastroenterologist at Washington University in
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`St. Louis, “There is no evidence to suggest that people with normal gastrointestinal tracts can
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`benefit from taking probiotics.”
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`77. The theory behind probiotics is based on the consumption of live bacteria, which will
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`survive and propagate in the intestinal tract, altering the internal composition of the human body.
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`78. However, the human gut contains tens of trillions of bacteria.
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`79. Any amount of probiotics in the Products is “still just a drop in a bucket,” because
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`“The gut always has orders of magnitude more microbes,” states Shira Doron, an infectious disease
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`expert at Tufts Medical Center.
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`80. Defendant touts the “live probiotics” of the Products.
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`81. Even outside of the context of alcoholic beverages, the promotion of a food or
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`beverage as containing probiotics would be misleading.
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`82. However, where the products are alcoholic beverages, the promotion of probiotics is
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`Case 8:22-cv-01867 Document 1 Filed 08/15/22 Page 13 of 24 PageID 13
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`highly deceptive.
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`83. The word “probiotic” consists of “pro,” which means “to support” and “biotic,”
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`which relates to life.
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`84. However, consumption of alcohol, even in modest amounts, has been proven to have
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`a detrimental effect on life expectancy and quality of life.
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`85. The promotion of “live probiotics” is also misleading because there is no recognized
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`or accepted number, amount or colony forming units (“CFU”) of probiotics with which the amount
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`and/or type of probiotics in the Products can be compared.
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`C. Adaptogens
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`86. Adaptogens is a new word for botanical ingredients believed to have health benefits.
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`87. By promoting the Products as containing adaptogens, Defendant is telling consumers
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`the Products will have unspecified salutary effects.
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`88. The adaptogen representations are misleading because the ingredients in the Products
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`which qualify as adaptogens are not associated with providing any salutary effects.
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`89. All competent scientific studies of the adaptogens in the Products confirmed that they
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`were incapable of providing the positive effects expected.
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`90. Adaptogens may also be harmful.
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`91. Even if adaptogens provided any health benefit, this would be outweighed by the
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`negative effects from consuming one alcoholic beverage.
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`III. CONCLUSION
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`92. A reasonable consumer would expect that the Products are a healthful source of
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`nutrients and dietary ingredients, such that these additions outweigh any negative effects otherwise
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`associated with alcohol consumption.
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`93. Consumers do not expect that products contain labeling which expressly violates the
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`policies and regulations of this state and nation.
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`94. Consumers figure that by the time a product gets to the shelves, the companies have
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`“serious people” and “fancy lawyers” who “sign off” on the legitimacy of their labeling.
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`95. Thus, there is an implicit acceptance that what they are presented with is truthful,
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`accurate, and in their best interest.
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`96.
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` Consumers would not know that the Products are unlawfully fortified and labeled in
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`the precise way which was supposed to have been prevented.
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`97. This knowledge would require investigation beyond the store aisle, which is outside
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`of what the average consumer can be expected to know.
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`98. An average consumer does not have the specialized knowledge necessary to ascertain
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`that the deleterious effects of alcohol overtime will not be overcome by the addition of vitamin C
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`and probiotics.
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`99. 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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`100. By labeling the Products in this manner, Defendant gained an advantage against other
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`companies, and against consumers seeking to purchase products which contained ingredients
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`whose positive effects outweighed the negative effects from consuming alcohol.
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`101. The value of the Products that Plaintiff purchased was materially less than their value
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`as represented by Defendant.
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`102. 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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`103. 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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`104. The Products are sold for a price premium compared to other similar products, no
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`less than approximately $16.49 for a six-pack of 12 oz cans, a higher price than they would
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`otherwise be sold for, absent the misleading representations and omissions.
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`105. Similar products which do not contain the misleading representations are sold for a
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`lower price of approximately $10.49 for a six-pack of 12 oz cans.
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`Jurisdiction and Venue
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`106. 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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`107. 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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`108. Plaintiff Christina Van Allen is a citizen of Florida.
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`109. Defendant Fermented Sciences, Inc. is a California corporation with a principal place
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`of business in Ventura, California, Ventura County.
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`110. 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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`111. The members of the class Plaintiff seeks to represent are more than 100, because the
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`Products have been sold with the representations described here for several years, in hundreds of
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`locations across the States covered by Plaintiff’s proposed classes.
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`112. Defendant transacts business within this District, through the marketing, supply, and
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`sales of its products at thousands of stores within this District and sold online to citizens of this
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`District.
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`113. Venue is in this District because Plaintiff resides in this District and the actions
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`giving rise to the claims occurred within this District.
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`114. Venue is in the Tampa Division of this District because a substantial part of the
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`events or omissions giving rise to the claim occurred in Hillsborough County, i.e., Plaintiff’s
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`purchase and consumption of the Products and her awareness of the issues described here.
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`Parties
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`115. Plaintiff Christina Van Allen is a citizen of Lutz, Hillsborough County, Florida.
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`116. Plaintiff likes fruits and vegetables and eating healthy.
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`117. Plaintiff also likes moderate consumption of alcoholic beverages on occasion.
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`118. Plaintiff knows consuming alcohol isn’t the best thing, but the promotion of
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`antioxidants, probiotics, and adaptogens alleviates any guilt she has from consuming the Products.
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`119. Defendant Fermented Sciences, Inc. is a California corporation with a principal place
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`of business in Ventura, Ventura County, California.
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`120. Defendant is a leader in the area of better-for-you alcoholic beverages.
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`121. Defendant rides the coattails of kombucha, a beverage which is naturally healthy, to
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`promote hard kombucha with added vitamins and probiotics.
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`122. Defendant’s owners have an impressive history selling kombucha.
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`123. These facts show a company with a significant amount of goodwill and equity when
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`it comes to consumer purchasing.
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`124. The Products are sold at tens of thousands of retail locations such as gas stations,
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`convenience stores, grocery stores, specialty markets, big box stores, warehouse clubs, and online,
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`in the States covered by the classes Plaintiff seeks to represent.
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`125. Plaintiff purchased the Products on one or more occasions within the statutes of
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`Case 8:22-cv-01867 Document 1 Filed 08/15/22 Page 17 of 24 PageID 17
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`limitations for each cause of action alleged, from stores including ABC Fine Wine & Spirits, 3015
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`W Kennedy Blvd, Tampa, FL 33609, between September 2020 and February 2022, among other
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`times.
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`126. Plaintiff bought the Products because she expected they contained ingredients whose
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`positive effects outweighed the negative effects from consuming alcohol because that is what the
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`representations said and implied.
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`127. Plaintiff relied on the words and images on the labels, identified here.
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`128. Plaintiff bought the Products at or exceeding the above-referenced price.
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`129. Plaintiff would not have purchased the Products if she knew the representations were
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`false and misleading or would have paid less for them.
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`130. Plaintiff chose between Defendant’s Products and other similar products which were
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`represented similarly, but which did not misrepresent their attributes and/or lower-priced products
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`which did not make the statements and claims made by Defendant.
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`131. The Products were worth less than what Plaintiff paid and she would not have paid
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`as much absent Defendant’s false and misleading statements and omissions.
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`132. Plaintiff intends to, seeks to, and will purchase the Products again when she can do
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`so with the assurance that the Products’ representations are consistent with their composition.
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`133. Plaintiff is unable to rely on the labeling of the Flying Embers, and other brands of
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`hard seltzer and hard kombucha, which means she buys less of these.
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`134. Plaintiff wants to resume purchasing these products, in moderation, knowing that she
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`can rely on what the labels tell her, in the same amount as she previously did.
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`Case 8:22-cv-01867 Document 1 Filed 08/15/22 Page 18 of 24 PageID 18
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`Class Allegations
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`135. 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.
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`Consumer Fraud Multi-State Class: All persons in
`the States of Alabama, Alaska, Georgia, South
`Carolina, Tennessee, and Virginia, who purchased
`the Products during the statutes of limitations for
`each cause of action alleged.
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`136. Common questions of law or fact predominate and include whether Defendant’s
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`representations were and are misleading and if Plaintiff and class members are entitled to damages.
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`137. 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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`138. Plaintiff is an adequate representative because her interests do not conflict with other
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`members.
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`139. 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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`140. 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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`141. 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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`142. Plaintiff seeks class-wide injunctive relief because the practices continue.
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`Florida Deceptive and Unfair Trade Practices Act,
`Fla. Stat. § 501.201, et seq.
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`(Consumer Protection Statute)
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`143. Plaintiff incorporates by reference all preceding paragraphs.
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`Case 8:22-cv-01867 Document 1 Filed 08/15/22 Page 19 of 24 PageID 19
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`144. Plaintiff and class members desired to purchase products that contained ingredients
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`whose positive effects outweighed the negative effects from consuming alcohol.
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`145. 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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`146. Defendant misrepresented the Products through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`147. 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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`148. Defendant misrepresented the Products through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`149. Plaintiff relied on the representations that the Products had antioxidants, probiotics,
`
`and adaptogens, and the widely-believed health properties of kombucha.
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`150. 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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`Violation of State Consumer Fraud Acts
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`(On Behalf of the Consumer Fraud Multi-State Class)
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`151. The Consumer Fraud Acts of the States in the Consumer Fraud Multi-State Class
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`prohibit the use of unfair or deceptive business practices in the conduct of trade or commerce.
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`152. Defendant intended that Plaintiff and each of the other members of the Consumer
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`Fraud Multi-State Class would rely upon its deceptive conduct, and a reasonable person would in
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`fact be misled by this deceptive conduct.
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`153. As a result of Defendant’s use or employment of artifice, unfair or deceptive acts or
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`business practices, Plaintiff, and each of the other members of the Consumer Fraud Multi-State
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`Case 8:22-cv-01867 Document 1 Filed 08/15/22 Page 20 of 24 PageID 20
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`Class, have sustained damages in an amount to be proven at trial.
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`154. In addition, Defendant’s conduct showed malice, motive, and the reckless disregard
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`of the truth such that 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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`155. 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 ingredients whose
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`positive effects outweighed the negative effects from consuming alcohol.
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`156. 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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`157. 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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`158. Defendant’s representations about the Products were conveyed in writing and
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`promised they would be defect-free, and Plaintiff understood this meant that they contained
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`ingredients whose positive effects outweighed the negative effects from consuming alcohol.
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`159. Defendant’s representations affirmed and promised that the Products contained
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`ingredients whose positive effects outweighed the negative effects from consuming alcohol.
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`160. Defendant described the Products so Plaintiff and consumers believed they contained
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`ingredients whose positive effects outweighed the negative effects from consuming alcohol, which
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`became part of the basis of the bargain that they would conform to their affirmations and promises.
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`161. Defendant had a duty to disclose and/or provide non-deceptive descriptions and
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`marketing of the Products.
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`162. This duty is based on Defendant’s outsized role in the market as a trusted brand, as
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`Case 8:22-cv-01867 Document 1 Filed 08/15/22 Page 21 of 24 PageID 21
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`described above, which means consumers expect it to be different than other companies without
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`such a reputation.
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`163. Defendant is a positive and consistent advocate for firefighters, as its name, Flying
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`Embers, acknowledges the constant wildfires of California.
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`164. Consumers expect a company that supports first responders so significantly will
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`uphold a standard of honesty.
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`165. Plaintiff recently became aware of Defendant’s breach of the Products’ warranties.
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`166. Plaintiff provided or will provide notice to Defendant