Case: 1:21-cv-05668 Document #: 1 Filed: 10/24/21 Page 1 of 22 PageID #:1
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`
`EASTERN DIVISION
`
`Katie Kuciver, individually and on behalf of
`all others similarly situated,
`
`1:21-cv-05668
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Fermented Sciences, Inc.,
`
`
`
`Defendant
`
`Jury Trial Demanded
`
`Plaintiff alleges upon information and belief, except for allegations pertaining to plaintiff,
`
`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 (“Product”).
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`
`EASTERN DIVISION
`
`Katie Kuciver, individually and on behalf of
`all others similarly situated,
`
`1:21-cv-05668
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Fermented Sciences, Inc.,
`
`
`
`Defendant
`
`Jury Trial Demanded
`
`Plaintiff alleges upon information and belief, except for allegations pertaining to plaintiff,
`
`which are based on personal knowledge:
`
`1.
`
`Fermented Sciences, Inc. (“defendant”) manufactures, labels, markets, and sells
`
`“Hard Seltzer” and “Hard Kombucha,” promoted as containing “Antioxidant Vit[amin] C,”
`
`“Antioxidants,” “Real Botanicals,” and “Crafted With Live Probiotics,” among other attributes,
`
`under the Flying Embers brand (“Product”).
`
`
`
`
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`Case: 1:21-cv-05668 Document #: 1 Filed: 10/24/21 Page 2 of 22 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, with a low alcohol content, fruit flavored, and roughly 100 calories or less, compared with
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`beers and wines that have from 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, bacteria, and 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 label of Defendant’s hard seltzer and hard kombucha emphasize
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`“Antioxidant Vit[amin] C” and “Live Probiotics.”
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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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`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 it as “Brewed
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`With Benefits,” with a list of its features.
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`Light and Live
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` 0
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` sugar 0 carbs 85 Calories
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`ALC 4.5% VOL
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`Always Live • Never Pasteurized
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`USDA Organic
`Probiotics
`Antioxidants
`Adaptogens
`Botanicals
`Gluten Free
`Vegan
`Keto
`21+ Please drink responsibly
`
`
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`15. The ingredients in the Hard Seltzer and Hard Kombucha Products are shown below.
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`4
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`Hard Seltzer
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`Hard Kombucha
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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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`COAGULLANS 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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`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.
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`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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`“alcoholic 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 “drinking 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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`digest and utilize nutrients.
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`26. According to the CDC, “Excessive alcohol use is responsible for more than 95,000
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`deaths in the United States each year, or 261 deaths per day.
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`27. These deaths shorten the lives of those who die by an average of almost 29 years, for
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`a total of 2.8 million years of potential life lost.
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`28. The costs of alcohol consumption are 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) (deeming a food misbranded when it
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`contains a statement that is “false or misleading”); 410 ILCS 620/21(j) (“federal [food labeling]
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`regulation[s] [are] automatically adopted”).
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`31. The Illinois Consumer Fraud and Deceptive Business Practices Act provides
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`protection for consumers purchasing items like the Product, and states:
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`Unfair methods of competition and unfair or deceptive acts or practices, including
`but not limited to the use or employment of any deception, fraud, false pretense,
`false promise, misrepresentation or the concealment, suppression, or omission of
`any material fact, with intent that others rely upon the concealment, suppression or
`omission of such material fact . . . are hereby declared unlawful
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`815 ILCS 505/2.
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`32. 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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`33. 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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`34. 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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`35.
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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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`36. 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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`37. 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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`38. 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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`39. 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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`40. The antioxidant claims give the impression the Product is 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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`41. The addition of acerola in the Products is fortification because this ingredient is used
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`to add Vitamin C, instead of to provide cherry juice.
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`42. 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 recognized by the scientific
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`community to exist and known to result in a nutritional deficiency disease. 21 CFR 104.20(b).
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`43. 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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`44. 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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`45. 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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`46. Consumption of alcoholic beverages reduces levels of antioxidants, like vitamin C,
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`in the body.1
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`47. 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 95 and 135 calories, yet 20% of the
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`daily value for vitamin C, based on 2,000 calories per day. 21 CFR 104.20(d).
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`48. 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 CFR 104.20(d).
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`49. For instance, the Products have no protein. 21 CFR 104.20(d)(3)
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`50. 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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`and belief, no GRAS notification has been submitted with respect to its addition to alcoholic
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`beverages. 21 CFR 104.20(g); 21 CFR 182.3013, 182.8013.
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`51. The addition of vitamin C to the Products is prohibited because it is not bio-available
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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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`when consumed via an alcohol beverage. 21 CFR 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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`52. 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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`53. 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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`54. 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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`55.
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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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`56. 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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`57. 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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`58.
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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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`B. Probiotics
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`59. The claims that the Products contain “live probiotics” is a misleading nutrient content
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`claim.
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`2 CSPI, Vizzy Enforcement Letter, Mar. 15, 2021.
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`60. 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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`61. Nutrient content claims tell consumers about the level of relevant nutrients in a food.
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`62. 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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`63. “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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`64. “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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`65. 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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`66.
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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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`67. 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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`68.
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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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`69. Probiotics are not recognized by FDA as having an RDI or DRV.
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`70. 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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`71. 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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`72. Most studies on probiotic strains – including those identified in the Product, reveal
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`no benefit to persons who are already healthy.
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`73. 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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`74. Experts have warned that healthy people who consume probiotics may suffer harm.
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`75. 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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`76. 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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`77. However, the human gut contains tens of trillions of bacteria.
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`78. Any amount of probiotics in the Products are “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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`79. Defendant touts the “live probiotics” of the Products.
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`80. 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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`81. However, where the products are alcoholic beverages, the promotion of probiotics is
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`highly deceptive.
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`82. The word “probiotic” consists of “pro,” which means “to support” and “biotic,”
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`which relates to life.
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`83. 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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`84. 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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`85. Adaptogens is a new word for botanical ingredients believed to have health benefits.
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`86. 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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`87. The adaptogen representations are misleading because the ingredients in the Product
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`which qualify as adaptogens are not associated with providing any salutary effects.
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`88. 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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`89. Adaptogens may also be harmful.
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`90. 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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`91. 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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`92. 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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`93. 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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`94. 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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`95.
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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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`96. 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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`97. 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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`98. 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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`99. By labeling the Product in this manner, Defendant gained an advantage against other
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`companies, and against consumers seeking to purchase a product which contained ingredients
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`whose positive effect outweighed the negative effects from consuming alcohol.
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`100. The value of the Products that plaintiff purchased was materially less than its value
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`as represented by defendant.
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`101. 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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`102. 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 it.
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`103. The Products is sold for a price premium compared to other similar products, no less
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`than approximately $16.49 for a six-pack of 12 oz cans, a higher price than it would otherwise be
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`sold for, absent the misleading representations and omissions.
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`104. 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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`105. 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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`106. 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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`107. Plaintiff Katie Kuciver is a citizen of Illinois.
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`108. Defendant Fermented Sciences, Inc., is a California corporation with a principal
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`place of business in Ventura, Ventura County, California.
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`109. Plaintiff and defendant are citizens of different states.
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`110. 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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`111. Venue is in this district because plaintiff resides in this district and the actions giving
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`rise to the claims occurred within this district.
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`112. Venue is in the Eastern Division of this District because a substantial part of the
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`events or omissions giving rise to the claim occurred in DuPage County, i.e., Plaintiff’s purchase
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`of the Products and her awareness of the issues described here.
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`Parties
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`113. Plaintiff Katie Kuciver is a citizen of Wood Dale, DuPage County, Illinois.
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`114. Plaintiff likes fruits and vegetables and eating healthy.
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`115. Plaintiff also likes moderate consumption of alcoholic beverages on occasion.
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`116. 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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`117. Defendant Fermented Sciences, Inc., is a California corporation with a principal
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`place of business in Ventura, California, Ventura County.
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`118. Defendant is a leader in the area of better-for-you alcoholic beverages.
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`119. 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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`120. Defendant’s owners have an impressive history selling kombucha.
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`121. 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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`122. The Product is available from almost everywhere packaged food is sold, from
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`convenience stores at gas stations, grocery stores, specialty markets, warehouse clubs, and sold
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`online.
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`123. Plaintiff purchased the Products on one or more occasions within the statutes of
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`limitations for each cause of action alleged, from stores including Whole Foods, 215 IL-83,
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`Elmhurst, IL 60126, between September and October 2021, among other times.
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`124. The Products she purchased included the Hard Kombucha (Watermelon) and Hard
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`Seltzer (Pineapple Cayenne).
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`125. Plaintiff bought the Products because she expected they contained ingredients whose
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`16
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`Case: 1:21-cv-05668 Document #: 1 Filed: 10/24/21 Page 17 of 22 PageID #:17
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`positive effect outweighed the negative effects from consuming alcohol because that is what the
`
`representations said and implied.
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`126. Plaintiff relied on the words and images on the labels, identified here.
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`127. Plaintiff bought the Products at or exceeding the above-referenced price.
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`128. 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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`129. 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
`
`which did not make the statements and claims made by Defendant.
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`130. The Products were worth less than what Plaintiff paid and she would not have paid
`
`as much absent Defendant's false and misleading statements and omissions.
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`131. Plaintiff intends to, seeks to, and will purchase the Products again when she can do
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`so with the assurance that Products' representations are consistent with their composition.
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`132. 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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`133. Plaintiff wants to resume purchasing these products, in moderation, knowing that she
`
`can rely on what the labels tell her, in the same amount as she previously did.
`
`Class Allegations
`
`134. Plaintiff seeks certification under Fed. R. Civ. P. 23(b)(2) and (b)(3) of the following
`
`classes:
`
`Illinois Class: All persons in the State of Illinois who
`purchased the Product during the statutes of limitations for
`each cause of action alleged.
`
`Consumer Fraud Multi-State Class: All persons in the
`States of North Dakota, Kansas, West Virginia, Wyoming,
`and Delaware, who purchased the Product during the statutes
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`17
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`Case: 1:21-cv-05668 Document #: 1 Filed: 10/24/21 Page 18 of 22 PageID #:18
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`of limitations for each cause of action alleged
`
`135. Common questions of law or fact predominate and include whether defendant’s
`
`representations were and are misleading and if plaintiff and class members are entitled to damages.
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`136. Plaintiff's claims and basis for relief are typical to other members because all were
`
`subjected to the same unfair and deceptive representations and actions.
`
`137. Plaintiff is an adequate representative because her interests do not conflict with other
`
`members.
`
`138. No individual inquiry is necessary since the focus is only on defendant’s practices
`
`and the class is definable and ascertainable.
`
`139. Individual actions would risk inconsistent results, be repetitive and are impractical
`
`to justify, as the claims are modest relative to the scope of the harm.
`
`140. Plaintiff's counsel is competent and experienced in complex class action litigation
`
`and intends to protect class members’ interests adequately and fairly.
`
`141. Plaintiff seeks class-wide injunctive relief because the practices continue.
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`Illinois Consumer Fraud and Deceptive Business Practices Act
`(“ICFA”), 815 ILCS 505/1, et seq.
`
`(Consumer Protection Statute)
`
`142. Plaintiff incorporates by reference all preceding paragraphs.
`
`143. Plaintiff and class members desired to purchase a product that contained ingredients
`
`whose positive effect outweighed the negative effects from consuming alcohol.
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`144. Defendant’s false and deceptive representations and omissions are material in that
`
`they are likely to influence consumer purchasing decisions.
`
`145. Defendant misrepresented the Product through statements, omissions, ambiguities,
`
`half-truths and/or actions.
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`18
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`Case: 1:21-cv-05668 Document #: 1 Filed: 10/24/21 Page 19 of 22 PageID #:19
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`146. Plaintiff and class members would not have purchased the Product or paid as much
`
`if the true facts had been known, suffering damages.
`
`147. Defendant misrepresented the Products through statements, omissions, ambiguities,
`
`half-truths and/or actions.
`
`148. Plaintiff relied on the representations that the Products had antioxidants, probiotics,
`
`and adaptogens, and the widely-believed health properties of kombucha.
`
`149. Plaintiff and class members would not have purchased the Products or paid as much
`
`if the true facts had been known, suffering damages.
`
`Violation of State Consumer Fraud Acts
`
`(On Behalf of the Consumer Fraud Multi-State Class)
`
`150. 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.
`
`151. Defendant intended that plaintiff and each of the other members of the Consumer
`
`Fraud Multi-State Class would rely upon its deceptive conduct, and a reasonable person would in
`
`fact be misled by this deceptive conduct.
`
`152. 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
`
`Class, have sustained damages in an amount to be proven at trial.
`
`153. In addition, defendant’s conduct showed malice, motive, and the reckless disregard
`
`of the truth such that an award of punitive damages is appropriate.
`
`Breaches of Express Warranty,
`Implied Warranty of Merchantability and
`Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
`
`154. The Products was manufactured, identified, and sold by defendant and expressly and
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`19
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`Case: 1:21-cv-05668 Document #: 1 Filed: 10/24/21 Page 20 of 22 PageID #:20
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`impliedly warranted to plaintiff and class members that it contained ingredients whose positive
`
`effect outweighed the negative effects from consuming alcohol.
`
`155. Defendant had a duty to disclose and/or provide non-deceptive descriptions and
`
`marketing of the Products.
`
`156. This duty is based on Defendant’s outsized role in the market as a trusted brand, as
`
`described above, which means consumers expect it to be different than other companies without
`
`such a reputation.
`
`157. Defendant is a positive and consistent advocate for firefighters, as its name, Flying
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`Embers, acknowledges the constant wildfires of California.
`
`158. Consumers expect a company that supports first responders so significantly will
`
`uphold a standard of honesty.
`
`159. Plaintiff provided or will provide notice to defendant, its agents, representatives,
`
`retailers, and their employees.
`
`160. Defendant received notice and should have been aware of these issues due to
`
`complaints by regulators, competitors, and consumers, to its main offices, and by consumers
`
`through online forums.
`
`161. The Products did not conform to their affirmations of fact and promises due to
`
`defendant’s actions and were not merchantable because they were not fit to pass in the trade as
`
`advertised.
`
`162. Plaintiff and class members would not have purchased the Products or paid as much
`
`if the true facts had been known, suffering damages.
`
`Negligent Misrepresentation
`
`163. Defendant had a duty to truthfully represent the Products, which it breached.
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`20
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`Case: 1:21-cv-05668 Document #: 1 Filed: 10/24/21 Page 21 of 22 PageID #:21
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`164. This duty is based on defendant’s position, holding itself out as having special
`
`knowledge and experience in this area, as the leading seller of alcoholic beverages, advertised as
`
`being “less bad” for you than standard alcoholic beverages, due to the addition of “good stuff,”
`
`like antioxidants, probiotics, and adaptogens.
`
`165. The representations took advantage of consumers’ cognitive shortcuts made at the
`
`point-of-sale and their trust in defendant, a leading innovator in the alcoholic beverage sector.
`
`166. Plaintiff and class members reasonably and justifiably relied on these negligent
`
`misrepresentations and omissions, which served to induce and did induce, their purchase of the
`
`Products.
`
`167. Plaintiff and class members would not have purchased the Products or paid as much
`
`if the true facts ha
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