Case: 1:21-cv-00719 Document #: 1 Filed: 02/08/21 Page 1 of 98 PageID #:1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`
`)
`AILEEN GARCES, individually, and
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`on behalf of all others similarly situated,
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`Plaintiff,
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`v.
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`GERBER PRODUCTS CO., and
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`THE HAIN CELESTIAL GROUP, INC., )
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`Defendants.
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`No. 21 cv 719
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`Jury Trial Demanded
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`CLASS ACTION COMPLAINT
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`Plaintiff AILEEN GARCES (“Plaintiff”), individually, and on behalf of all others
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`similarly situated, by and through counsel at Zimmerman Law Offices, P.C., brings this Class
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`Action Complaint (“Complaint”) against Defendants GERBER PRODUCTS CO. (“Gerber”)
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`and THE HAIN CELESTIAL GROUP, INC. (“Hain”) (collectively, “Defendants”), as follows:
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`INTRODUCTION
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`1.
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`On February 4, 2021, the United States House of Representatives Committee on
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`Oversight and Reform’s Subcommittee on Economic and Consumer Policy (the “House
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`Subcommittee”) released a report entitled “Baby Foods Are Tainted with Dangerous Levels of
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`Arsenic, Lead, Cadmium, and Mercury” (the “Subcommittee Report”). See generally,
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`Subcommittee Report, attached hereto as Exhibit 1. According to the Subcommittee Report,
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`several brands of baby food sold in the United States contain unsafe levels of toxic heavy metals,
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`including those sold by Defendants. See, Subcommittee Report, p. 2.
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`2.
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`Given the health risks associated with high levels of toxic heavy metals, the
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`presence of these substances in baby food is a material fact to consumers. Indeed, consumers—
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`such as Plaintiff and members of the Class (defined below)—are unwilling to purchase baby food
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`that contains unsafe levels of toxic heavy metals.
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`3.
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`Defendants knew that the presence of toxic heavy metals in their baby food was a
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`material fact to consumers, yet omitted and concealed that fact from consumers.
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`4.
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`Accordingly, Plaintiff brings this suit on behalf of herself and a Class of similarly
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`situated individuals for damages resulting from Defendants’ sale of baby food that contained
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`unsafe levels of toxic heavy metals.
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`PARTIES
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`5.
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`6.
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`Plaintiff AILEEN GARCES is a natural person and resident and citizen of Illinois.
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`Defendant GERBER PRODUCTS CO. is a Michigan corporation with its principal
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`place of business in Virginia. Gerber sells its baby food under the eponymous “Gerber” brand
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`name (“Gerber Brand Baby Food”). Gerber Brand Baby Food is sold nationwide, including
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`throughout the state of Illinois.
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`7.
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`Defendant THE HAIN CELESTIAL GROUP, INC. is a Delaware corporation with
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`its principal place of business in New York. Hain sells its baby food under the “Earth’s Best
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`Organic” brand name (“Earth’s Best Brand Baby Food”). Earth’s Best Brand Baby Food is sold
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`nationwide, including throughout the state of Illinois.
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`JURISDICTION AND VENUE
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`8.
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`This Court has personal jurisdiction over Defendants pursuant to 735 ILCS 5/2-
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`209(a)(1) (transaction of any business within this State), section 2-209(a)(7) (the making or
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`performance of any contract or promise substantially connected with this State), section 2-
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`209(b)(4) (corporation doing business within this State), and section 2-209(c) (any other basis now
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`or hereafter permitted by the Illinois Constitution and the Constitution of the United States).
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`2
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`9.
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`This Court has original jurisdiction over the subject matter of this action pursuant
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`to 28 U.S.C. § 1332(d). As set forth below, the proposed Class involves more than 100 individuals,
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`and the amount of controversy, in the aggregate, exceeds the sum of $5,000,000 exclusive of
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`interest and costs, given Defendants’ market reach and the approximate number of potential Class
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`members in the United States. Some members of the proposed Class are citizens of states different
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`from Defendants.
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`10.
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`Venue is proper in this district under 28 U.S.C. § 1391, because a substantial part
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`of the events and omissions giving rise to the claims occurred in this district.
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`FACTUAL ALLEGATIONS
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`The Subcommittee Report
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`Inorganic arsenic, lead, cadmium, and mercury are toxic heavy metals. The United
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`11.
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`States Food and Drug Administration (“FDA”) and the World Health Organization (“WHO”) have
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`declared these toxic heavy metals dangerous to human health. Specifically, the FDA states that
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`these toxic heavy metals have “no established health benefit,” “lead to illness, impairment, and in
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`high doses, death,” and because of bioaccumulation, “even low levels of harmful metals from
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`individual food sources, can sometimes add up to a level of concern.”1
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`12.
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`The dangerous effects of these toxins are exacerbated and can be indelible in
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`developing and vulnerable bodies and brains of babies and children, who FDA explains are at the
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`greatest risk of harm. Subcommittee Report, p. 2. Exposure, such as ingestion, of toxic heavy
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`metals by babies and children leads to untreatable and permanent brain damage, resulting in
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`reduced intelligence and behavioral problems. For instance, scientific studies have connected
`
`
`1 FDA, Metals and Your Food, available at: https://www.fda.gov/food/chemicals-metals-pesticides-food/metals-and-
`your-food.
`
`3
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`

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`exposure to lead to a substantial decrease in children’s total IQ points and their lifetime earning
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`capacity. Subcommittee Report, p. 9.
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`13.
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`“Exposure to toxic heavy metals [such as arsenic, lead, cadmium, and mercury]
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`causes permanent decreases in IQ, diminished future economic productivity, and increased risk of
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`future criminal and antisocial behavior in children. Toxic heavy metals endanger infant
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`neurological development and long-term brain function.” See, Subcommittee Report, p. 2.
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`14.
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`Given these risks, and in response to reports alleging high levels of toxic heavy
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`metals in baby foods sold in the United States, the House Subcommittee launched an investigation
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`into the presence of toxic heavy metals in certain brands of baby foods, including Gerber Brand
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`Baby Food and Earth’s Best Brand Baby Food. See, Subcommittee Report, p. 2. The results of
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`the House Subcommittee’s investigation were set forth in the Subcommittee Report, which was
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`released on February 4, 2021.
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`Arsenic in Defendants’ Baby Food
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`15.
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`According to the Subcommittee Report, arsenic was present in all brands of baby
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`foods subject to the House Subcommittee’s investigation. See, Subcommittee Report, p. 3. In
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`particular, Earth’s Best Brand Baby Food was found to contain as much as 129 parts per billion—
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`abbreviated as “ppb”—arsenic, and was made with ingredients that contained as high as 309 ppb
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`arsenic. See, Subcommittee Report, p. 3. Gerber Brand Baby Food used high-arsenic ingredients,
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`including rice flour that contained over 90 ppb arsenic. See, Subcommittee Report, p. 3.
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`16.
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`For comparison, the FDA has set the maximum level of arsenic in bottled water at
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`10 ppb. See, Subcommittee Report, p. 4.
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`17.
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`Arsenic is the most dangerous of the toxic heavy metals at issue and poses the most
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`significant risk to human health. See, Subcommittee Report, p. 10. Currently known risks of
`
`4
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`

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`arsenic to health include respiratory, gastrointestinal, haematological, hepatic, renal, skin,
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`neurological and immunological effects, as well as damaging effects on the central nervous system
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`and cognitive development in children.”2
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`18.
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`One study found negative effects in cognitive development of schoolchildren
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`exposed to concentrations of arsenic over 5 ppb. For the authors of the study, 5 ppb was an
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`important threshold for small children.3 Consumer reports has recommended setting the limit of
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`arsenic at 3 ppb.
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`19.
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`Hain sold finished baby food products using ingredients (such as organic brown
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`rice flour) containing as much as 309 ppb arsenic, finished products contained as much as 129 ppb
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`arsenic. Subcommittee Report, p. 3.
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`20.
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`Hain exceeded its own unreasonable and excessive internal standards. For many
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`ingredients in Earth’s Best Brand Baby Food, Hain set a standard for certain ingredients of 100
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`and up to 200 ppb for arsenic. Subcommittee Report, p. 16. Nevertheless, it approved and used a
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`vitamin pre-mix with arsenic levels of 223 ppb, more than twice the specific limit Hain itself set
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`at 100 ppb for this ingredient, which is itself way too high. See, Subcommittee Report, p. 16.
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`Numerous other ingredients were used in Earth’s Best Brand Baby Food that contained excessive
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`levels of arsenic according to Hain’s own testing, including organic whole raisins, organic soft
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`white wheat flour, organic spelt flour, organic barley malt extract, organic yellow split pea powder,
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`medium grain whole rice, organic brown rice flour, organic blueberry puree, organic barley flour,
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`organic cinnamon powder, and organic butternut squash puree.
`
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`2 Agency for Toxic Substances and Disease Registry, ATSDR’s Substance Priority List (2019), available at
`http://www.atsdr.cdc.gov/spl/index.html#2019spl.
`3 Miguel Rodríguez-Barranco et al., Association of Arsenic, Cadmium and Manganese Exposure with
`Neurodevelopment and Behavioural Disorders in Children: A Systematic Review and Meta-Analysis (June 1, 2013)
`(online at https://pubmed.ncbi.nlm.nih.gov/23570911/).
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`5
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`

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`21.
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`Gerber agreed to provide only limited data to the House Subcommittee, but the data
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`it provided shows that Gerber routinely used ingredients in Gerber Brand Baby Food that contained
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`over 90 ppb arsenic, including 67 batches of rice flour. Subcommittee Report, p. 19.
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`22.
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`Gerber used grape juice concentrate in Gerber Brand Baby Food containing 39 ppb
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`inorganic arsenic. For apple juice concentrate, FDA has issued draft guidance requiring less than
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`10 ppb in organic arsenic. Subcommittee Report, p. 52.
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`Lead in Defendants’ Baby Food
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`23.
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`Lead was also present in all brands of baby foods subject to the House
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`Subcommittee’s investigation. See, Subcommittee Report, p. 3. In particular, Earth’s Best Brand
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`Baby Food was found to contain as much as 352 ppb lead, and was made with ingredients that
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`contained as high as 200 ppb lead. See, Subcommittee Report, p. 3. Gerber Brand Baby Food also
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`used high-lead ingredients in Gerber Brand Baby Food, including some that contained over 48 ppb
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`lead. See, Subcommittee Report, p. 3
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`24.
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`For comparison, the FDA has set the maximum level of lead in bottled water at 5
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`ppb. See, Subcommittee Report, p. 4.
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`25.
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`Lead is the second most dangerous of the toxic heavy metals at issue. Because lead
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`can accumulate in the body, even small doses of lead have deleterious effects on children,
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`including health, behavioral, cognitive, and development issues. The FDA states that “[h]igh levels
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`of lead exposure can seriously harm children’s health and development, specifically the brain and
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`nervous system.”4 There is a growing consensus that lead levels in baby foods should not exceed
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`1 ppb.
`
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`4 FDA, Metals and Your Food, available at: https://www.fda.gov/food/chemicals-metals-pesticides-food/metals-and-
`your-food.
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`
`6
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`26.
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`Two studies have established a significant association between early childhood
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`exposure to lead and decreased standardized test scores, academic achievement, and diseases such
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`as attention-deficit/hyperactivity disorder (“ADHD”). These effects last into adulthood according
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`to other studies.5
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`27.
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`Hain, under its Earth’s Best Organic label, used ingredients (such as vitamin pre-
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`mix) containing as much as 352 ppb lead. 88 different ingredients in Earth’s Best Brand Baby
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`Food tested over 20 ppb lead and six ingredients tested over 200 ppb lead, including organic whole
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`wheat fine flour, organic quick oats, organic barley flour, organic cinnamon powder, and organic
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`date paste. Subcommittee Report, p. 26.
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`28.
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`All of Hain’s ingredients contained 1 or more ppb of lead, the limit recommended
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`by some groups.
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`29.
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`Gerber agreed to provide only limited data to the House Subcommittee, but the data
`
`it provided shows that Gerber used ingredients in Gerber Brand Baby Food that tests show
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`contained as much as 48 ppb lead, and Gerber used many ingredients containing over 20 ppb lead,
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`including its juice ingredients and sweet potatoes. Subcommittee Report, p. 27. Gerber’s tested
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`juice concentrate measured an average of 11.2 ppb lead, which exceeds the 10 ppb standard for
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`bottled water set by FDA.
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`
`
`
`
`
`5 Nanhua Zhang et al., Early Childhood Lead Exposure and Academic Achievement: Evidence From Detroit Public
`Schools, available at: http://mediad.publicbroadcasting.net/p/michigan/files/201302/AJPH.2012.pdf; Anne Evens et
`al., The Impact of Low-Level Lead Toxicity on School Performance Among Children in the Chicago Public Schools:
`A
`Population-Based
`Retrospective
`Cohort
`Study,
`available
`at:
`https://ehjournal.biomedcentral.com/articles/10.1186/s12940-015-0008-9; Maitreyi Mazumdar et al., Low-Level
`Environmental Lead Exposure in Childhood and Adult Intellectual Function: A Follow-Up Study, available at:
`www.ncbi.nlm.nih.gov/pmc/articles/PMC3072933/.
`
`
`7
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`Cadmium in Defendants’ Baby Food
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`30.
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`Cadmium was another toxic heavy metal found to be present in all brands of baby
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`foods subject to the House Subcommittee’s investigation. See, Subcommittee Report, p. 3. In
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`particular, Earth’s Best Brand Baby Food used 102 ingredients that contained over 20 ppb
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`cadmium, with some of those ingredients containing up to 260 ppb cadmium. See, Subcommittee
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`Report, p. 3.
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`31.
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`Certain Gerber Brand Baby Foods were made with ingredients that contained over
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`87 ppb cadmium. See, Subcommittee Report, p. 4.
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`32.
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`For comparison, the FDA has set the maximum level of cadmium in bottled water
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`at 5 ppb. See, Subcommittee Report, p. 4.
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`33.
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`Cadmium is the seventh most dangerous heavy metal toxin according to the
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`ATSDR. Exposure to cadmium is linked with decreases in IQ and development of ADHD. The
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`EPA and FDA set the limit at 5 ppb of cadmium in drinking water and bottled water, respectively.
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`The WHO limits cadmium in drinking water at 3 ppb. Certain experts recommend an upper limit
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`of 1 ppb of cadmium in fruit juices.
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`34.
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`In Earth’s Best Brand Baby Food, Hain used 102 ingredients with 20 ppb cadmium
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`or higher. Some ingredients (such as organic barley flour) tested as high as 260 ppb cadmium.
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`Subcommittee Report, pp. 30–31. Other individual ingredients in Earth’s Best Brand Baby Food
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`containing excessive cadmium include: a product described as IQF6 organic chopped broccoli,
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`organic date past, organic cinnamon powder, organic brown flax milled, organic yellow papaya
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`puree, organic whole wheat fine flour, organic red lentils, organic oat flakes, and organic oat flour.
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`6 IQF likely means individually quick-frozen, a method for freezing foods that prevents ice crystals.
`8
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`35.
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`Gerber used carrots in Gerber Brand Baby Food, 75% of which contained between
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`5 and 87 ppb cadmium. Subcommittee Report, p. 4.
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`Defendants’ Internal Testing
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`36.
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`The House Subcommittee also sought to investigate the presence of mercury in
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`baby food, but found that Hain did not even test for mercury in Earth’s Best Brand Baby Food,
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`and that Gerber “rarely” tested for mercury in Gerber Brand Baby Food. See, Subcommittee
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`Report, p. 4.
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`37.
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`The Subcommittee Report also noted that Hain routinely exceeded its own internal
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`limits relative to the use of ingredients with arsenic, lead, and cadmium in Earth’s Best Brand
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`Baby Food. See, Subcommittee Report, p. 4. Although Hain attempted to justify these deviations
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`from its internal standards, it “admitted to FDA that its testing underestimated final product toxic
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`heavy metal levels.” See, Subcommittee Report, pp. 4-5.
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`Defendants’ Baby Food
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`38.
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`Defendants each manufacture, distribute, advertise, market, and sell brands of baby
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`food evaluated in the Subcommittee Report. Gerber manufactures, distributes, advertises, markets,
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`and sells Gerber Brand Baby Food, and Hain manufactures, distributes, advertises, markets, and
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`sells Earth’s Best Brand Baby Food.
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`39.
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`Defendants each direct, control, and participate in the manufacturing and packaging
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`of the brands of baby food that they sell. As part of that direction, control, and participation,
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`Defendants each determine and are responsible for the ingredients used in their baby food.
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`40.
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`Defendants each know and are responsible for the ingredients in the brands of baby
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`food that they sell.
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`9
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`41.
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`Defendants each created, developed, reviewed, authorized, and are responsible for
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`the textual and graphic content on the packaging of the brands of baby food that they sell. This is
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`supported by the fact that the labels on Gerber Brand Baby Food contain Gerber’s corporate logo
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`and trademark, and note that Gerber Brand Baby Food is distributed by Gerber. Similarly, the
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`labels on Earth’s Best Brand Baby Food contain the Earth’s Best trademark—which is one of
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`Hain’s federally registered trademarks—and note that Earth’s Best Brand Baby Food is distributed
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`by Hain.
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`42.
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`Each package of Earth’s Best Brand Baby Food contains standardized labeling
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`created, developed, reviewed, and authorized by Hain. The packaging of all types of Earth’s Best
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`Brand Baby Food is the same or substantially similar.
`
`43.
`
`Each package of Gerber Brand Baby Food contains standardized labeling created,
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`developed, reviewed, and authorized by Gerber. The packaging of all types of Gerber Brand Baby
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`Food is the same or substantially similar.
`
`44.
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`Defendants each know, created, developed, reviewed and are responsible for the
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`representations contained on each package of baby food that they sell.
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`45.
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`The labels on some of the varieties of Gerber Brand Baby Food—including some
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`of those that Plaintiff and Class members purchased—state that the product contains “iron to help
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`support learning ability.”
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`46.
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`The labels on some of the varieties of Earth’s Best Brand Baby Food—including
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`some of those that Plaintiff and Class members purchased—state that the product contains used
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`“non-BPA packaging.” BPA stands for bisphenol A, “an industrial chemical that has been used to
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`make certain plastics and resins since the 1960s” that is linked to certain health issues.7 In other
`
`
`7 Mayo Clinic, What
`the Concerns About BPA?,
`is BPA, and What Are
`at:
`available
`https://www.mayoclinic.org/healthy-lifestyle/nutrition-and-healthy-eating/expert-answers/bpa/faq-20058331 (“Some
`10
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`

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`words, these varieties of Earth’s Best Brand Baby Food are marketed as lacking a particular
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`dangerous substance that can negatively affect brain development and children’s behavior.
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`47.
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`The labels on many varieties of Gerber Brand Baby Food and Earth’s Best Brand
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`Baby Food—including some of those that Plaintiff and Class members purchased—also tout those
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`products as being free of GMO—which stands for “genetically modified organism”—ingredients.
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`Like BPA, GMOs are also believed to be associated with health risks, “including infertility,
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`immune problems, accelerated aging, faulty insulin regulation and changes in major organs and
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`the gastrointestinal system.”8 As such, these varieties of Gerber Brand Baby Food and Earth’s
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`Best Brand Baby Food are marketed as lacking a particular dangerous substance that can
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`negatively affect consumers of the product.
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`48.
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`Despite touting the lack of certain dangerous substances in their respective brands
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`of baby food, Defendants each fail to disclose elevated levels of toxic heavy metals on the labels
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`of Earth’s Best Brand Baby Food and Gerber Brand Baby Food.
`
`49.
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`Similarly, despite touting the presence of “iron to help support learning ability” in
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`Gerber Brand Baby Food, Gerber fails to disclose the fact that its baby food contains other
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`substances—toxic heavy metals—that have the exact opposite effect.
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`50. While Defendants’ respective omissions regarding the material fact that their
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`brands of baby food contain elevated levels of toxic heavy metals are legally significant on their
`
`own, Defendants’ respective representations regarding the presence of “iron to help support
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`learning ability” and the lack of BPA and GMOs are also significant. Although these
`
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`research has shown that BPA can seep into food or beverages from containers that are made with BPA,” which “is a
`concern because of possible health effects of BPA on the brain and prostate gland of fetuses, infants and children. It
`can also affect children's behavior. Additional research suggests a possible link between BPA and increased blood
`pressure.”).
`8 CNN, 10 Ways to Keep Your Diet GMO-Free, available at: https://www.cnn.com/2014/03/25/health/upwave-gmo-
`free-diet/index.html.
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`11
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`representations may be true, “a statement that is technically true may nevertheless be fraudulent
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`where it omits qualifying material since a ‘half-truth’ is sometimes more misleading than an
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`outright lie.” Abazari v. Rosalind Franklin Univ. of Med. & Sci., 2015 IL App (2d) 140952, ¶ 33
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`(citing cases); see also Heider v. Leewards Creative Crafts, Inc., 245 Ill.App.3d 258, 265 (2nd
`
`Dist. 1993) (“A statement which is technically true as far as it goes may nonetheless be fraudulent
`
`if it is misleading because it does not state matters which materially qualify that statement.”); W.
`
`Prosser, Law of Torts § 106, at 696 (4th ed. 1971) (“half the truth may obviously amount to a lie,
`
`if it is understood to be the whole.”).
`
`51.
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`For example, in representing that Earth’s Best Brand Baby Food and Gerber Brand
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`Baby Food lack BPA and GMOs, Defendants represent that their respective brands of baby food
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`lack substances that consumers would consider to be deleterious to human health. This is,
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`however, only a “half-truth” as Earth’s Best Brand Baby Food and Gerber Brand Baby Food do,
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`in fact, contain deleterious substances—i.e., toxic heavy metals.
`
`52.
`
`Gerber’s representations regarding the presence of “iron to help support learning
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`ability” in Gerber Brand Baby Food is also a “half-truth,” as it fosters the understanding that the
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`ingredients in Gerber Brand Baby Food will promote childhood brain development, when, in fact,
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`Gerber Brand Baby Food contains toxic heavy metals, which are proven to impede childhood brain
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`development.
`
`Consumer Expectations Regarding Baby Food
`
`Parents’ instinctive desire to protect and ensure the healthy development of their
`
`53.
`
`children is well-known. As such, the safety of baby food is of paramount importance, and is a
`
`material fact, to consumers (such as Plaintiff and Class members).
`
`12
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`54. More specifically, given the negative effects of toxic heavy metals (such as arsenic,
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`lead, cadmium, and mercury) on child development, the presence of these substances in baby food
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`is a material fact to consumers (such as Plaintiff and members of the Class). Indeed, consumers—
`
`such as Plaintiff and members of the Class—are unwilling to purchase baby food that contains
`
`elevated levels of toxic heavy metals.
`
`55.
`
`Defendants each know that the safety of their respective brands of baby food (as a
`
`general matter) is a material fact to consumers. This is exemplified by the fact that Earth’s Best
`
`Brand Baby Food and Gerber Brand Baby Food are both marketed and labeled as lacking certain
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`substances (e.g., BPA, GMOs) that consumers believe would be deleterious to the health of
`
`children.
`
`56.
`
`Defendants each also know that consumers (such as Plaintiff and members of the
`
`Class) are unwilling to purchase their respective brands of baby food that contain elevated levels
`
`of toxic heavy metals.
`
`57.
`
`As such, Defendants also know that the presence of toxic heavy metals in their
`
`respective brands of baby food is a material fact to consumers (such as Plaintiff and Class
`
`members).
`
`58.
`
`Baby food manufacturers (such as Defendants) hold a special position of public
`
`trust. Consumers believe that they would not sell products that are unsafe. See, Subcommittee
`
`Report, p. 6.
`
`59.
`
`Defendants each knew that if the elevated levels of toxic heavy metals in their
`
`respective brands of baby food was disclosed to Plaintiff and Class members, then Plaintiff and
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`Class members would be unwilling to purchase Earth’s Best Brand Baby Food and/or Gerber
`
`Brand Baby Food.
`
`13
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`

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`60.
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`In light of Defendants’ respective knowledge that Plaintiff and Class members
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`would be unwilling to purchase Earth’s Best Brand Baby Food and/or Gerber Brand Baby Food if
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`they knew that those brands of baby food contained elevated levels of toxic heavy metals,
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`Defendants intentionally and knowingly concealed this fact from Plaintiff and Class members, and
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`did not disclose the presence of these toxic heavy metals on the labels of Earth’s Best Brand Baby
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`Food and Gerber Brand Baby Food (respectively).
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`61.
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`Defendants knew that Plaintiff and Class members would rely upon the
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`representations and omissions contained on the packages of Earth’s Best Brand Baby Food and
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`Gerber Brand Baby Food (respectively), and intended for them to do so.
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`62.
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`Defendants knew that in relying upon the representations and omissions contained
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`on the packages of Earth’s Best Brand Baby Food and Gerber Brand Baby Food (respectively),
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`Plaintiff and Class members would view those products as being safe for consumption, given their
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`represented lack of certain deleterious substances (e.g., BPA, GMOs), and Defendants’
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`concealment of the fact that those brands of baby food contained elevated levels of toxic heavy
`
`metals.
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`63.
`
`Prior to purchasing Earth’s Best Brand Baby Food and Gerber Brand Baby Food,
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`Plaintiff and Class members were exposed to, saw, read, and understood Defendants’ respective
`
`representations and omissions regarding the safety of their baby food, and relied upon them.
`
`64.
`
`As a result of Defendants’ respective representations regarding the safety of their
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`baby food, and the lack of certain deleterious substances (e.g., BPA, GMOs), and Defendants’
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`concealment of the fact that those brands of baby food contained elevated levels of toxic heavy
`
`metals, Plaintiff and Class members reasonably believed that Earth’s Best Brand Baby Food and
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`Case: 1:21-cv-00719 Document #: 1 Filed: 02/08/21 Page 15 of 98 PageID #:15
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`Gerber Brand Baby Food were free from substances that would negatively affect children’s
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`development.
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`65.
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`In reliance upon Defendants’ respective representations and omissions, Plaintiff
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`and Class members purchased Earth’s Best Brand Baby Food and/or Gerber Brand Baby Food.
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`66.
`
`Had Plaintiff and Class members known the truth—i.e., that Defendants’ respective
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`brands of baby food contained elevated levels of toxic heavy metals, rendering them unsafe for
`
`consumption by children—they would not have been willing to purchase them at all.
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`67.
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`Therefore, as a direct and proximate result of Defendants’ misrepresentations and
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`omissions concerning their respective brands of baby food, Plaintiff and Class members purchased
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`Earth’s Best Brand Baby Food and/or Gerber Brand Baby Food.
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`68.
`
`Plaintiff and Class members were harmed in the form of the monies they paid for
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`Earth’s Best Brand Baby Food and/or Gerber Brand Baby Food which they would not otherwise
`
`have paid had they known the truth. Since the presence of elevated levels of toxic heavy metals
`
`in baby food renders it unsafe for human consumption, the Earth’s Best Brand Baby Food and/or
`
`Gerber Brand Baby Food that Plaintiff and Class members purchased is worthless.
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`Facts Relevant to Plaintiff
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`69.
`
`Between November 2020 and February 4, 2021, Plaintiff purchased several
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`different varieties of Earth’s Best Brand Baby Food and Gerber Brand Baby Food from
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`Amazon.com and Target. Many of the varieties of Earth’s Best Brand Baby Food and Gerber
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`Brand Baby Food contained ingredients (and contaminants) discussed in the Subcommittee
`
`Report. Plaintiff’s relevant purchases include:
`
`a.
`
`Earth’s Best Brand Baby Food from Hain containing organic raisins,
`organic rice flour, organic blueberry puree, organic whole grain barley
`flour, organic brown flax milled, organic cinnamon, organic whole grain oat
`flour with excessive levels of arsenic, including: Earth’s Best Organic
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`15
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`Case: 1:21-cv-00719 Document #: 1 Filed: 02/08/21 Page 16 of 98 PageID #:16
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`Blueberry Banana Flax & Oat Wholesome Breakfast Puree on February 4,
`2021; Earth’s Best Organic Apple Peach Oatmeal Wholesome Breakfast
`Puree on January 23, 2021; Earth’s Best Apple Raisin Flax & Oat
`Wholesome Breakfast Puree on January 1, 9, 15 and 21, 2021; Earth’s Best
`Sweet Potato Cinnamon Flax & Oat Wholesome Breakfast Puree on
`January 9, 15, 21 and 23, 2021; and Earth’s Best Organic Rice Cereal on
`November 22, 2020.
`
`Earth’s Best Brand Baby Food from Hain containing organic raisins,
`organic barley flour, organic cinnamon powder, and vitamin pre-mix with
`excessive levels of lead, including: Earth’s Best Organic Blueberry Banana
`Flax & Oat Wholesome Breakfast Puree on February 4, 2021; Earth’s Best
`Apple Raisin Flax & Oat Wholesome Breakfast Puree on January 1, 9, 15
`and 21, 2021; and Earth’s Best Sweet Potato Cinnamon Flax & Oat
`Wholesome Breakfast Puree on January 15, 21 and 23, 2021.
`
`Earth’s Best Brand Baby Food from Hain containing organic barley flour,
`organic cinnamon powder, and organic brown flax with excessive levels of
`cadmium, including: Earth’s Best Apple Raisin Flax & Oat Wholesome
`Breakfast Puree on January 1, 9, 15 and 21, 2021; and Earth’s Best Sweet
`Potato Cinnamon Flax & Oat Wholesome Breakfast Puree on January 15,
`21 and 23, 2021.
`
`Gerber’s Teethers Strawberry Apple Spinach Wafers containing dried apple
`juice with excessive levels of lead on February 2, 2021.
`
`Gerber’s Teethers Banana Peach Wafers and Strawberry Apple Spinach
`Wafers containing rice flour with excessive levels of toxic heavy metals on
`February 2, 2021.
`
`b.
`
`c.
`
`d.
`
`e.
`
`
`
`
`
`
`
`
`
`70.
`
`Prior to purchasing Earth’s Best Brand Baby Food and Gerber Brand Baby Food,
`
`Plaintiff and Class members were exposed to, saw, read, and understood Defendants’ respective
`
`representations and omissions regarding the safety of their baby food, as well as the presence of
`
`elevated levels of toxic heavy metals therein, and relied upon them.
`
`71.
`
`Plaintiff was only willing to purchase Earth’s Best Brand Baby Food and Gerber
`
`Brand Baby Food because she believed that they did not contain elevated levels of toxic heavy
`
`metals. This belief was bolstered by Defendants’ representations regarding the presence of iron,
`
`and the lack of BPA and GMOs, in their respective brands of baby food.
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`Case: 1:21-cv-00719 Document #: 1 Filed: 02/08/21 Page 17 of 98 PageID #:17
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`72.
`
`In reliance upon Defendants’ respective representations and omissions, Plaintiff
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`purchased Earth’s Best Brand Baby Food and Gerber Brand Baby Food.
`
`73.
`
`Had Plaintiff known the truth—i.e., that Defendants’ respective brands of baby food
`
`contained elevated levels of toxic heavy metals, rendering them unsafe for consumption by
`