Case 1:22-cv-21405-RNS Document 1 Entered on FLSD Docket 05/05/2022 Page 1 of 25
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`
`MIAMI DIVISION
`
`Fernanda Price, individually and on behalf of
`all others similarly situated,
`
`1:22-cv-21405
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Walgreen Co.,
`
`
`
`Defendant
`
`Jury Trial Demanded
`
`Plaintiff Fernanda Price (“Plaintiff”), by and through her undersigned counsel, pursuant to
`
`all applicable Federal Rules of Civil Procedure, hereby files this class action complaint on behalf
`
`of herself and all others similarly situated throughout the United States, and alleges upon
`
`information and belief, except for allegations pertaining to Plaintiff, which are based on personal
`
`knowledge against Defendant Walgreen Co. (“Defendant” or “Walgreens”) as follows:
`
`1.
`
`Founded in 1901, Walgreens is an American company that operates as the second-
`
`largest drug-store chain in the United States with over 9,000 retail locations nationwide and a
`
`presence in all 50 states, as well as the District of Columbia, Puerto Rico and the U.S. Virgin
`
`Islands.
`
`2.
`
`In addition to retail and wholesale pharmacy Defendant markets, advertises,
`
`distributes and sells various types of tobacco products including but not limited to menthol
`
`cigarettes.
`
`3. At issue here are Defendant’s Marlboro Menthol Cigarettes (the “Products”). See
`
`Exhibit 1, attached hereto and incorporated herein, a true and correct representation of the
`
`Products’ label and online advertisement.
`
`4. Defendant represents the Products as mere ordinary cigarettes, when in fact, they are
`
`

`

`Case 1:22-cv-21405-RNS Document 1 Entered on FLSD Docket 05/05/2022 Page 2 of 25
`
`not because menthol cigarettes are far more dangerous and addictive than any other type of
`
`cigarette available to consumers. Defendant provides NO WARNING that the Products pose
`
`additional health risks far beyond those seen with nonmenthol cigarettes.
`
`5.
`
`For example, numerous studies have shown that menthol increases the appeal of
`
`tobacco and facilitates addiction, particularly among youth and young adults because menthol
`
`masks the unpleasant flavors and harshness of tobacco products, making them easier to start using.
`
`6.
`
`Tobacco products with menthol can also be more addictive and harder to quit because
`
`they can enhance the effects of nicotine. One study suggests that banning menthol cigarettes in the
`
`U.S. would lead an additional 923,000 smokers to quit, while an earlier study projected that about
`
`633,000 deaths would be averted if not for the marketing of menthol cigarettes.1
`
`7. Despite the wealth of scientific research elucidating the inordinate hazards of
`
`menthol cigarettes, Defendant provides no warning or disclaimer of
`
`the Products’
`
`disproportionately toxic effects. As a result, Plaintiff has purchased Products that are unreasonably
`
`harmful and addictive and not as warranted and represented by Defendant.
`
`8. Defendant’s marketing and advertising of the Products is false and deceptive.
`
`Through a variety of advertising methods, including but not limited to the packaging and labeling
`
`and online advertising of the Products, Defendant has made false representations regarding the
`
`true nature of the Products.
`
`9.
`
`Plaintiff and consumers expected to purchase conventional cigarettes only to learn
`
`that they were in fact purchasing a product far more addictive and harmful than any of the other
`
`
`1 “FDA Commits to Evidence Based Actions Aimed at Saving Lives and Preventing Future
`Generations of Smokers.” (April 29, 2021). Available at https://www.fda.gov/news-events/press-
`announcements/fda-commits-evidence-based-actions-aimed-saving-lives-and-preventing-future-
`generations-smokers.
`
`2
`
`

`

`Case 1:22-cv-21405-RNS Document 1 Entered on FLSD Docket 05/05/2022 Page 3 of 25
`
`cigarettes available on the market; as a result, plaintiff and consumers were denied the benefit of
`
`their bargain.
`
`10. Defendant’s false and misleading representations and omissions violate state and
`
`federal law, including Florida’s Deceptive and Unfair Trade Practices Act, as detailed more fully
`
`below.
`
`I.
`
`FACTUAL ALLEGATIONS COMMON TO ALL COUNTS
`
`11.
`
`In 2009, Congress passed—and President Obama signed into law—the Family
`
`Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, 123 Stat. 1776 (codified, in
`
`relevant part, at 15 U.S.C. §§ 1333–34 and 21 U.S.C. § 301 et seq.) (2009) (“Tobacco Control
`
`Act”).
`
`12. This Act authorized the U.S. Food & Drug Administration (“FDA”) to regulate
`
`tobacco products, 21 U.S.C. § 387a, and prohibited all flavors in cigarettes, except for tobacco and
`
`menthol (i.e., the “flavor ban”), id. § 387g(a)(1). Although it did not ban menthol at that time,
`
`Congress recognized that menthol cigarettes “may pose unique health risks to those who smoke
`
`them.”2
`
`13. Thereafter Congress repeatedly highlighted the urgent nature of the menthol inquiry,
`
`“urg[ing] the Secretary [of the U.S. Department of Health and Human Services (“HHS”)] to
`
`address these issues as quickly as practicable.” H. Rept., Part 1 at 38 (emphasis added). Indeed,
`
`Congress believed that it would be “critical for the Secretary to move quickly to address the unique
`
`public health issues posed by menthol cigarettes.” Id. at 38–39 (emphasis added).
`
`14.
`
`In 2010, FDA organized a Tobacco Product Scientific Advisory Committee
`
`
`2 H. Rept. 111-58, Part 1, Tobacco Control Act, 111th Congress (2009–10), 38 (Energy and
`Available
`at
`Commerce
`Comm.)
`(“H.
`Rept.,
`Part
`1”).
`https://www.congress.gov/111/crpt/hrpt58/CRPT-111hrpt58-pt1.pdf .
`
`3
`
`

`

`Case 1:22-cv-21405-RNS Document 1 Entered on FLSD Docket 05/05/2022 Page 4 of 25
`
`(“TPSAC”) in accordance with the Act’s directive. That Committee was comprised of “a panel of
`
`leading public health, scientific experts and representatives of various parts of the tobacco
`
`industry.” See FDA, Dr. Lawrence R. Deyton, Dir. Center for Tobacco Products, FDA Remarks
`
`on the Report and Recommendation on the Public Health Impact of Menthol Cigarettes (Mar. 18,
`
`2011) (“2011 FDA Remarks on Menthol Cigarettes Rept.”).3
`
`15. This Committee was charged with “providing advice,
`
`information, and
`
`recommendations to FDA on health issues related to tobacco products and other issues relating to
`
`the regulation of tobacco products.” Id.
`
`16. The full Scientific Advisory Committee first met in March 2010, and 11 more times
`
`thereafter. See FDA Rept. to Congress, Progress and Effectiveness of the Implementation of the
`
`Family Smoking Prevention and Tobacco Control Act, at 15 (2013). There were also two meetings
`
`of the Tobacco Products Constituents Subcommittee of the TPSAC and two meetings of the
`
`Menthol Report Subcommittee. See id.
`
`17. On March 23, 2011, the TPSAC submitted its report, Menthol Cigarettes and Public
`
`Health: Review of the Scientific Evidence and Recommendations (2011) (“2011 TPSAC Menthol
`
`Rept.”). This Report—also known as the TPSAC Report—contained a number of findings and
`
`conclusions, based on the best available scientific evidence.
`
`18. Among other things, the Report found that menthol is a flavor additive that possesses
`
`a minty taste and aroma. See 2011 TPSAC Menthol Rept. at 16. In certain medicinal products such
`
`as cough drops, menthol is actually regulated as a drug. See id. The use of menthol in tobacco
`
`products, however, was not. See id.
`
`
`
`3 Available at
`https://wayback.archiveit.org/7993/20170112125250/http://www.fda.gov/AdvisoryCommittees/
`CommitteesMeetingMaterials/TobaccoProductsScientificAdvisoryCommittee/ucm247617.htm.
`
`4
`
`

`

`Case 1:22-cv-21405-RNS Document 1 Entered on FLSD Docket 05/05/2022 Page 5 of 25
`
`19. The Report also found that menthol produces a variety of sensory effects, including
`
`cooling and soothing effects, as well as anesthetic effects. See id. at 23. For example, “[i]n
`
`cigarettes with low levels of tar and nicotine, the addition of menthol can enhance the ‘bite’ or
`
`‘throat grab’ of the smoke, making such cigarettes more acceptable to consumers. Conversely, the
`
`addition of menthol to cigarettes high in tar and nicotine can reduce the irritating effect of nicotine
`
`... making these cigarettes more palatable.” Id. at 24.
`
`20. Additionally, the Report found that the tobacco companies “manipulated the
`
`concentration of menthol to achieve a desired taste, aroma, and cooling sensation based on
`
`anticipated consumer preference and demand.” See id. at 55.
`
`21. The Report also concluded that menthol cigarettes were associated with “increased
`
`transition to greater or established smoking and dependence.” Id. at 149.
`
`22.
`
`In sum, the Report noted that sufficient evidence existed to conclude that the
`
`availability of menthol cigarettes— increases experimentation and regular smoking, id. at 216;
`
`increases the likelihood of addiction and the degree of addiction in youth smokers, id. at 216; and
`
`results in lower likelihood of smoking cessation success in African-Americans, compared to
`
`smoking non‐menthol cigarettes, id. at 217.
`
`23. The availability of menthol cigarettes was also found to “increase the likelihood of
`
`experimentation and regular smoking beyond the anticipated prevalence if such cigarettes were
`
`not available, in the general population and particularly in African Americans.” id. at 219. In
`
`addition, the Committee found a “causal relationship between the availability of menthol cigarettes
`
`and regular smoking among youth.” Id. It also found that menthol cigarette marketing increased
`
`the prevalence of smoking “beyond anticipated prevalence if such cigarettes were not available for
`
`the whole population, and for youth and African Americans.” Id. at 220.
`
`5
`
`

`

`Case 1:22-cv-21405-RNS Document 1 Entered on FLSD Docket 05/05/2022 Page 6 of 25
`
`24. Based on the Committee’s findings, the Report made two overall conclusions: (1)
`
`“Menthol cigarettes have an adverse impact on public health in the United States”; and (2) “There
`
`are no public health benefits of menthol compared to non‐menthol cigarettes.” 2011 TPSAC
`
`Menthol Rept. at 220. As explained by the Committee, “the availability of menthol cigarettes has
`
`led to an increase in the number of smokers and this increase does have adverse public health
`
`impact in the United States.” Id. at 220.
`
`25. “[O]f particular concern was the high rate of menthol cigarette smoking among youth
`
`and the trend over the last decade of increasing menthol cigarette smoking among 12–17 year-
`
`olds, even as smoking of non‐menthol cigarettes declines. .... Thus, the availability of menthol
`
`cigarettes increases initiation and reduces cessation, thereby increasing the number of people who
`
`are smoking. This increase in the number of smokers represents an adverse impact of the
`
`availability of menthol cigarettes on public health.” Id. at 220–21.
`
`26.
`
`In testament to the disproportionately toxic effects of menthol cigarettes, the
`
`Committee’s Report posited that if menthol cigarettes had been removed from the marketplace in
`
`2010, then (a) by 2020, roughly 17,000 premature deaths would have been avoided, and about 2.3
`
`million people would not have started smoking; and (b) by 2050, the cumulative gains would have
`
`resulted in over 327,000 premature deaths avoided, and over 9.1 million people that would not
`
`have started smoking.
`
`27. As a result of the Committee’s findings, the Committee then made the following
`
`overall recommendation to FDA: “Removal of menthol cigarettes from the marketplace would
`
`benefit public health in the United States.” 2011 TPSAC Menthol Rept. at 225 (emphasis in
`
`original). Per the Committee:
`
`Menthol cigarettes are now smoked by most African American
`smokers and there is a concerning rise of menthol cigarette smoking
`
`6
`
`

`

`Case 1:22-cv-21405-RNS Document 1 Entered on FLSD Docket 05/05/2022 Page 7 of 25
`
`among youth. Menthol cannot be considered merely a flavoring
`additive to tobacco. Its pharmacological actions reduce the
`harshness of smoke and the irritation from nicotine, and may
`increase the likelihood of nicotine addiction in adolescents and
`young adults who experiment with smoking. Furthermore, the
`distinct sensory characteristics of menthol may enhance the
`addictiveness of menthol cigarettes, which appears to be the case
`among youth. [The Committee] has found that the availability of
`menthol cigarettes has an adverse impact on public health by
`increasing the numbers of smokers with resulting premature death
`and avoidable morbidity. Id. at 225.
`
`28. The FDA subsequently conducted a peer-reviewed investigation in 2013. See FDA
`
`Rept. to Congress, Progress and Effectiveness of the Implementation of the Family Smoking
`
`Prevention and Tobacco Control Act, at 15 (2013).4
`
`29. Based on its review, the FDA found that the weight of evidence supported the
`
`following similar conclusions:
`
`a.
`
`Menthol in cigarettes is “likely associated with altered physiological responses
`
`to tobacco smoke”;
`
`b.
`
`c.
`
`d.
`
`A majority of African American smokers use menthol cigarettes;
`
`Younger populations have the highest rate of smoking menthol cigarettes;
`
`Female smokers are more likely to smoke menthol cigarettes than male
`
`smokers;
`
`e.
`
`The marketing of menthol cigarettes is associated with menthol brand
`
`
`4 Available at https://www.fda.gov/media/86670/download.
`
`7
`
`

`

`Case 1:22-cv-21405-RNS Document 1 Entered on FLSD Docket 05/05/2022 Page 8 of 25
`
`preference among adolescents and the African American community;5 and
`
`f.
`
`Menthol in cigarettes is likely associated with:
`
`i.
`
`increased initiation and progression to regular cigarette smoking;6
`
`ii.
`
`increased dependence;7 and
`
`iii.
`
`reduced success in smoking cessation, especially among African American
`
`menthol smokers.8 2013 FDA findings at 4-6.
`
`30. The FDA ultimately concluded that menthol in cigarettes was associated with greater
`
`addiction, menthol smokers were less likely to successfully quit smoking, and that menthol
`
`cigarettes likely posed “a public health risk above that seen with nonmenthol cigarettes”:
`
`The impact of cigarette smoking upon public health is indisputable.
`More than 400,000 deaths per year in the United States are caused
`by tobacco use. Consistent patterns have emerged as a result of
`FDA’s evaluation of the scientific evidence relevant to the impact
`of menthol tobacco products on public health. ... [A]dequate data
`suggest that menthol use is likely associated with increased smoking
`initiation by youth and young adults.
`
`Further, the data indicate that menthol in cigarettes is likely
`associated with greater addiction. Menthol smokers show greater
`signs of nicotine dependence and are less likely to successfully quit
`smoking. These findings, combined with the evidence indicating
`
`
`5 “The available data show that advertising is a strong driver of brand preference among
`adolescents and that it is likely that the standard marketing mix approach of price, promotion,
`product, and place has been used to drive menthol cigarette preference among the urban African
`American community.” 2013 FDA Findings, at 5.
`6 “Data show that newer smokers prefer menthol at levels substantially above that of the general
`population, with an inverse correlation between age and menthol preference that reaches a plateau
`in adulthood.” 2013 FDA Findings, at 5.
`7 “There were consistent findings that menthol smokers more likely to smoke their first cigarette
`within five minutes of waking.” 2013 FDA Findings, at 6.
`8 “In the reviewed studies, menthol smokers, especially African American menthol smokers, were
`less likely to successfully stop smoking than their nonmenthol smoking counterparts. This is
`consistent with the observation that menthol smokers appear to be more nicotine dependent than
`nonmenthol smokers which can be an important factor in smoking cessation success.” 2013 FDA
`Findings, at 6.
`
`8
`
`

`

`Case 1:22-cv-21405-RNS Document 1 Entered on FLSD Docket 05/05/2022 Page 9 of 25
`
`that menthol’s cooling and anesthetic properties can reduce the
`harshness of cigarette smoke and the evidence indicating that
`menthol cigarettes are marketed as a smoother alternative to
`nonmenthol cigarettes, make it likely that menthol cigarettes pose a
`public health risk above that seen with nonmenthol cigarettes. Id. at
`6.
`
`31. Additional studies have since similarly concluded that removing menthol from
`
`cigarettes is likely to reduce youth smoking initiation, improve smoking cessation outcomes in
`
`adult smokers, and in turn, benefit public health.9
`
`32. For example, a follow up study reviewing Canada’s menthol ban found higher rates
`
`of quitting among daily and occasional menthol smokers, one year after the implementation of a
`
`menthol ban.10
`
`33. Many other countries have also recognized the disproportionately harmful effects of
`
`menthol cigarettes and have since begun to ban them.11
`
`34. The COVID-19 pandemic has further showcased the myriad ways in which menthol
`
`cigarettes negatively impact the public health, and the African-American community in particular.
`
`35. A study in the New England Journal of Medicine found that coronavirus patients in
`
`China who smoked were more than twice as likely as those who didn’t to have severe infections
`
`
`9 Andrea C. Villanti, et al., Menthol Cigarettes and The Public Health Standard: A Systematic
`Review,
`Available
`at
`BMC
`Public
`Health
`(Dec.
`29,
`2017).
`https://bmcpublichealth.biomedcentral.com/articles/10.1186/s12889-017-4987-z.
`10 See Chaiton M.O. et al., Ban on menthol-flavoured tobacco products predicts cigarette cessation
`at 1 year: a population cohort study, Tobacco Control (May 30, 2019). Available at
`https://tobaccocontrol.bmj.com/content/early/2019/05/29/tobaccocontrol-2018-054841.
`11 For example, in 2012, Brazil approved a ban on all flavors, including menthol, in all tobacco
`products. In 2016, the European Union banned all flavored cigarettes including menthol (effective
`2020). And in 2017, Canada banned the sale of menthol cigarettes. See Campaign for Tobacco-
`Free Kids, Brazil’s Highest Court Upholds Ban on Flavored Tobacco Products (Feb. 1, 2018).
`Available at https://www.tobaccofreekids.org/press-releases/2018_02_01_brazil-court- upholds-
`flavor-ban (last visited June 13, 2020). World Health Organization, Advisory Note: Banning
`available
`at
`Menthol
`in
`Tobacco
`Products,
`49–50
`https://apps.who.int/iris/bitstream/handle/10665/205928/9789241510332_eng.pdf;jsessionid.
`
`9
`
`

`

`Case 1:22-cv-21405-RNS Document 1 Entered on FLSD Docket 05/05/2022 Page 10 of 25
`
`from COVID-19.12
`
`36. An April 8, 2020, advisory from Massachusetts Attorney General Maura Healey
`
`warned that “it is vital that people are aware of the serious potential risks associated with smoking
`
`or vaping and COVID-19,” noting that “flavored tobacco products could make lung infections like
`
`COVID-19 worse.”13
`
`37.
`
`In response, the FDA has re-committed to its efforts to ban menthol cigarettes in
`
`order to reduce addiction and save lives.14
`
`38.
`
`In April 2022, the FDA announced its “long-awaited plan to ban menthol cigarettes
`
`and flavored cigars, citing the toll on Black smokers and young people.”15
`
`39. According to Health and Human Services Secretary Xavier Becerra, the proposed
`
`regulations “would help prevent children from becoming the next generation of smokers and help
`
`adult smokers quit” and were an “important step to advance health equity” by reducing racial
`
`
`at
`12 Available
`https://www.nytimes.com/2020/04/09/health/coronavirus-smoking-vaping-
`risks.html (citing https://www.nejm.org/doi/full/10.1056/NEJMoa2002032).
`13 Available at https://www.mass.gov/doc/covid-vaping-advisory/download.
`14 Available at https://www.fda.gov/news-events/press-announcements/fda-commits-evidence-
`based-actions-aimed-saving-lives-and-preventing-future-generations-smokers. See also “FDA
`Commits to Evidence Based Actions Aimed at Saving Lives and Preventing Future Generations
`(April 29, 2021). Available at https://www.fda.gov/news-events/press-
`of Smokers.”
`announcements/fda-commits-evidence-based-actions-aimed-saving-lives-and-preventing-future-
`generations-smokers (“Banning menthol—the last allowable flavor—in cigarettes and banning all
`flavors in cigars will help save lives, particularly among those disproportionately affected by these
`deadly products. With these actions, the FDA will help significantly reduce youth initiation,
`increase the chances of smoking cessation among current smokers, and address health disparities
`experienced by communities of color, low-income populations, and LGBTQ+ individuals, all of
`whom are far more likely to use these tobacco products,” said Acting FDA Commissioner Janet
`Woodcock, M.D. “Together, these actions represent powerful, science-based approaches that will
`have an extraordinary public health impact. Armed with strong scientific evidence, and with full
`support from the Administration, we believe these actions will launch us on a trajectory toward
`ending tobacco-related disease and death in the U.S.”).
`15 Matthew Perrone, FDA Issues Plan to Ban Menthol Cigarettes, Associated Press, Apr. 28, 2022.
`Available at https://www.nbcmiami.com/news/health/fda-to-announce-plan-banning-menthol-
`cigarettes/2747709/.
`
`10
`
`

`

`Case 1:22-cv-21405-RNS Document 1 Entered on FLSD Docket 05/05/2022 Page 11 of 25
`
`disparities in tobacco use.
`
`40. Phillip Gardiner of the African American Tobacco Control Leadership Council
`
`expressed these sentiments, stating that “Black folks die disproportionately of heart disease, lung
`
`cancer and stroke,” and “[M]enthol cigarettes [] are the main vectors of those diseases in the Black
`
`and brown communities.”
`
`41. Plaintiff Fernanda Price purchased the Products from a Walgreens in Miami Beach
`
`numerous times prior to, and within, the four years preceding the filing of this Complaint.
`
`42. Walgreens represents itself as a “trusted wellness provider” and “neighborhood
`
`retailer that makes health and well-being within reach for everyone on a daily basis.”16 On its
`
`website Defendant notes that “there’s a Walgreens store located within five miles of approximately
`
`78 percent of all Americans” and that “every day, we touch the lives of more than 8 million
`
`customers in our stores and online.”17
`
`43.
`
`In purchasing the Products from her “trusted” local Walgreens, Plaintiff believed the
`
`that the Products were simply ordinary cigarettes when in fact the Products pose a far greater health
`
`risk than any other type of cigarette.
`
`44. Defendant provided NO WARNING or disclaimer of the inordinately addictive and
`
`harmful nature of the Products compared to other cigarettes, and Defendant’s advertising and
`
`marketing is deceptive and likely to mislead the public as a result.
`
`45. Plaintiff and Class Members would not have purchased the Products if they had
`
`known the true nature of their harmful effects.
`
`46.
`
`In purchasing the Products, Plaintiff saw, read, and relied on the packages and
`
`
`16 https://jobs.walgreens.com/about-us (last visited May 14, 2021).
`17 Id.
`
`11
`
`

`

`Case 1:22-cv-21405-RNS Document 1 Entered on FLSD Docket 05/05/2022 Page 12 of 25
`
`advertising for the Products misrepresenting them as typical cigarettes no more dangerous than
`
`any other.
`
`47. Plaintiff and Class Members have been damaged by their purchase of the Products
`
`because the labeling and advertising for the Products was and is deceptive and misleading;
`
`therefore, the Products are worth less than what Plaintiff paid for them, and Plaintiff and Class
`
`Members did not receive what they reasonably intended to receive.
`
`48. Defendant’s failure to warn that the Products are unreasonably dangerous and
`
`excessively addictive was important to Plaintiff and Class Members in deciding to purchase and
`
`use the Products because they would not have purchased the Products had they been advertised
`
`and labeled with the warning of their significant and disproportionate health risks to consumers.
`
`49. At a minimum, Plaintiff and Class Members contend that Defendant should be
`
`prohibited from selling menthol cigarettes or at the very least include a warning that the Products
`
`pose a public health risk above that seen with nonmenthol cigarettes.
`
`JURISDICTION AND VENUE
`
`50. This Court has jurisdiction over the subject matter presented by this Complaint
`
`because it is a class action arising under 18 U.S.C. § 1332(d), which, under the Class Action
`
`Fairness Act of 2005 (“CAFA”), Pub. L. No. 109-2, 119 Stat. 4 (2005), explicitly provides for the
`
`original jurisdiction of the Federal Courts of any class action in which any member of the Plaintiff
`
`class is a citizen of a state different from any Defendant, and in which the matter in controversy
`
`exceeds in the aggregate the sum of $5,000,000, exclusive of interest and costs.
`
`51. On information and belief, Plaintiff alleges that the total claims of individual Class
`
`Members in this action are in excess of $5,000,000 in the aggregate, exclusive of interest and costs,
`
`as required by 28 U.S.C. § 1332(d)(2), (5).
`
`12
`
`

`

`Case 1:22-cv-21405-RNS Document 1 Entered on FLSD Docket 05/05/2022 Page 13 of 25
`
`52. Plaintiff is a citizen of the State of Florida, as set forth below, and Defendant can be
`
`considered a citizen of Illinois. Therefore, diversity of citizenship exists under CAFA as required
`
`by 28 U.S.C. § 1332(d)(2)(A).
`
`53. Venue in this district is proper pursuant to 28 U.S.C. §1391(b)(1) because Defendant
`
`resides, conducts business, is found and is subject to personal jurisdiction in this district.
`
`54. Venue in this district is proper pursuant to 28 U.S.C. §1391(b)(2) because a
`
`substantial part of the events or omissions giving rise to the Plaintiff’s claims occurred in this
`
`district, including her purchase, consumption and use of the Products and the representations and
`
`omissions of Defendant with respect to the Products.
`
`55.
`
`In accordance with this Court’s Rules, this action should be assigned to the Miami
`
`Division because a substantial part of the events or omissions giving rise to Plaintiff’s claims
`
`occurred in Miami-Dade County, including Plaintiff’s purchase, consumption, and use of the
`
`Products, the representations made to her by Defendant, and Plaintiff’s reliance on those
`
`representations.
`
`56. The members of the proposed class exceed 100 because the Products have been sold
`
`throughout the United States with the representations described here for at least the proposed class
`
`period.
`
`57. Plaintiff Fernanda Price is an individual consumer over the age of 18 and a citizen of
`
`PARTIES
`
`Florida.
`
`58. Plaintiff purchased the Products from a Walgreens located at 1011 Alton Road in
`
`Miami Beach, Florida, 33139.
`
`59. Plaintiff resided in Miami-Dade County during the Class Period, defined below as
`
`13
`
`

`

`Case 1:22-cv-21405-RNS Document 1 Entered on FLSD Docket 05/05/2022 Page 14 of 25
`
`the four years preceding the filing of the Complaint, though she relocated to Sarasota County in
`
`the summer of 2021.
`
`60. Plaintiff seeks injunctive relief and damages on behalf of herself and the Class, and
`
`respectfully requests a jury trial on her damage claims.
`
`61. Defendant Walgreen Co. is an Illinois corporation with a principal place of business
`
`in Deerfield, Illinois.
`
`62. Therefore, Defendant is considered a citizen of Illinois. At all relevant times,
`
`Defendant marketed, distributed and sold various consumer products, including the Products that
`
`are the subject of this lawsuit, to Plaintiff and Members of the Class throughout this judicial district
`
`and the rest of the United States.
`
`CLASS ALLEGATIONS
`
`63. Plaintiff re-alleges and incorporates by reference all allegations set forth above.
`
`64. Plaintiff brings this class action pursuant Federal Rule of Civil Procedure 23 and
`
`seeks certification of the claims and certain issues in this action pursuant to the applicable
`
`provisions of Federal Rule of Civil Procedure 23 on behalf of the following individuals:
`
`All United States residents who purchased menthol cigarettes (the
`“Products”) from Walgreens, Inc. (“Defendant”) in the United
`States from the four years preceding the filing of this complaint to
`present (“Class Period”).
`
`65. Excluded from the Class are Defendant and any officer, director, employee, legal
`
`counsel, firm, trust, corporation, or other entity related to or affiliated with Defendant and the
`
`members of the judiciary and their office staff to whom this case may be assigned.
`
`66. Defendant’s practices and omissions were applied uniformly to all Members of the
`
`Class, so that the questions of law and fact are common to all Members of the Class. All Members
`
`of the Class were and are similarly affected by having purchased and used the menthol cigarettes,
`
`14
`
`

`

`Case 1:22-cv-21405-RNS Document 1 Entered on FLSD Docket 05/05/2022 Page 15 of 25
`
`which they would not have done had Defendant properly warned Class Members that the Products
`
`are far more harmful and addictive than any other type of cigarette available to consumers, and the
`
`relief sought herein is for the benefit of Plaintiff and members of the putative Class.
`
`67. On information and belief, Plaintiff alleges that the proposed class is so numerous
`
`that joinder of all members would be impractical. Based on the annual sales of the Products and
`
`the popularity of the Products, it is apparent that the number of consumers of the Products would
`
`at least be in the many thousands, thereby making joinder impossible.
`
`68. Questions of law and fact common to the Plaintiff and the Class exist that
`
`predominate over questions affecting only individual members, including, inter alia:
`
`a. Whether Defendant’s practices in connection with the design, testing,
`
`manufacture, assembly, development, promotion, marketing, advertising
`
`and sale of the Products were deceptive;
`
`b. Whether Defendant’s practices in connection with the design, testing,
`
`manufacture, assembly, development, promotion, marketing, advertising
`
`and sale of the Products were deceptive or unfair in any respect, thereby
`
`violating the Florida Deceptive and Unfair Trade Practices Act, inter alia,
`
`sections 501.201 to 201.213, Florida Statutes;
`
`c. Whether the Products contain menthol;
`
`d. Whether Defendant failed to warn that the Products pose a public health risk
`
`above that seen with nonmenthol cigarettes;
`
`e. Whether Defendant negligently misrepresented the true nature of the
`
`Products;
`
`15
`
`

`

`Case 1:22-cv-21405-RNS Document 1 Entered on FLSD Docket 05/05/2022 Page 16 of 25
`
`f. Whether Defendant breached implied warranties in its sale of the Products,
`
`thereby causing harm to Plaintiff and Class Members; and
`
`g. Whether Defendant’s conduct as set forth above injured consumers and if
`
`so, the extent of the injury.
`
`69. The claims asserted by Plaintiff in this action are typical of the claims of the members
`
`of the Plaintiff Class, as the claims arise from the same course of conduct by Defendant, and the
`
`relief sought is common.
`
`70. Plaintiff will fairly and adequately represent and protect the interests of the members
`
`of the Plaintiff Class. Plaintiff has retained counsel competent and experienced in both consumer
`
`protection and class action litigation.
`
`71. Certification of this class action is appropriate under Federal Rule of Civil Procedure
`
`23 because the questions of law or fact common to the respective Members of the Class
`
`predominate over questions of law or fact affecting only individual members.
`
`72. This predominance makes class litigation superior to any other method available for
`
`the fair and efficient adjudication of these claims.
`
`73. Absent a class action, it would be highly unlikely that the representative Plaintiff or
`
`any other Members of the Class would be able to protect their own interests because the cost of
`
`litigation through individual lawsuits might exceed the expected recovery.
`
`74. Certification is also appropriate because Defendant acted or refused to act on grounds
`
`generally applicable to the Class, thereby making appropriate final injunctive relief with respect
`
`to the Class as a whole.
`
`75. Further, given the large number of Class Members, allowing individual actions to
`
`proceed in lieu of a class action would run the risk of yielding inconsistent and conflicting
`
`16
`
`

`

`Case 1:22-cv-2140