Case: 1:21-cv-06380 Document #: 1 Filed: 11/30/21 Page 1 of 39 PageID #:1
`
`
`ELLIOT LAW OFFICE, PC
`DAVID ELLIOT (270381)
`2028 3rd Avenue
`San Diego, CA 92101
`davidelliot@elliotfirm.com
`Tel: (619) 468-4865
`
`Attorney for Plaintiffs and the Proposed Class
`
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`
`
`
`
`LISA BOSS, LINDA GUNNETT,
`AND PEGGY TATUM on behalf of
`themselves and all others similarly
`situated,
`
`
`
` v.
`
`THE KRAFT HEINZ COMPANY,
`KRAFT HEINZ FOODS COMPANY
`(LLC)
`
`
`
`
`Plaintiffs,
`
`Defendants.
`
`
`
`
`
`
`
`Case No:
`
`CLASS ACTION COMPLAINT FOR
`VIOLATIONS OF:
`
`1. ILLINOIS CONSUMER FRAUD AND DECEPTIVE
`BUSINESS PRACTICES ACT, 815 ILCS 505/1
`2. CONSUMERS LEGAL REMEDIES ACT, CAL. CIV.
`CODE §§1750
`3. UNFAIR COMPETITION LAW, UNLAWFUL
`PRONG, CAL. BUS. & PROF. CODE §§17200
`4. UNFAIR COMPETITION LAW, UNFAIR PRONG,
`CAL. BUS. & PROF. CODE §§17200
`5. FALSE ADVERTISING LAW, CAL. BUS. & PROF.
`CODE §§ 17500
`6. PENNSYLVANIA UNFAIR TRADE PRACTICES
`AND CONSUMER PROTECTION LAW, 73 PA. STAT.
`ANN. § 201
`7. BREACH OF EXPRESS WARRANTY
`8. BREACH OF IMPLIED WARRANTY
`9. NEGLIGENT MISREPRESENTATION
`10. FRAUD BY OMISSION
`
`DEMAND FOR JURY TRIAL
`
`
`
`CLASS ACTION COMPLAINT
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`

`

`Case: 1:21-cv-06380 Document #: 1 Filed: 11/30/21 Page 2 of 39 PageID #:2
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
` TABLE OF CONTENTS
`
`
`
`I. JURISDICTION AND VENUE ....................................................................................... 1
`
`II. NATURE OF THE ACTION .......................................................................................... 2
`
`III. PARTIES ........................................................................................................................ 3
`
`IV.FACTUAL ALLEGATIONS ......................................................................................... 4
`
`1. Defendants Do Not Disclose That Their Products Are Artificially Flavored. ................ 4
`
`2. Federal and State Law Require Defendants to Disclose the Artificial Flavor in
`the Products. ......................................................................................................................... 8
`
`3. Defendants’ Competitors Label Their Products Lawfully. ............................................ 12
`
`4. Plaintiffs and the Class Pay a Price Premium for Defendants’ Misbranded
`Products. ............................................................................................................................. 13
`
`V. DELAYED DISCOVERY ............................................................................................ 15
`
`VI. CLASS ACTION ALLEGATIONS ............................................................................ 15
`
`VII. CAUSES OF ACTION ............................................................................................... 19
`
` FIRST CAUSE OF ACTION: Violations of Illinois Consumer Fraud and
`Deceptive Business Practices Act ...................................................................................... 19
`
` SECOND CAUSE OF ACTION: Violation of the Consumers Legal Remedies Act
`(CLRA), Cal. Civ. Code §§ 1750, et seq. (on behalf of the California Sub-Class) ........... 20
`
` THIRD CAUSE OF ACTION Violation of the Unfair Competition Law (UCL),
`Unlawful Prong, Cal. Bus. & Prof. Code §§ 17200, et seq. (on behalf of the
`California Sub-Class) ......................................................................................................... 21
`
` FOURTH CAUSE OF ACTION: Violations of the Unfair Competition Law
`(UCL), Unfair Prong, Cal. Bus. & Prof. Code §§ 17200, et seq. (on behalf of the
`California Sub-Class) ......................................................................................................... 22
`
` FIFTH CAUSE OF ACTION: Violations of California’s False Advertising Law
`
`Cal. Bus. & Prof. Code §§ 17500, et seq. (on behalf of the California Sub-class) ........... 25
`
` SIXTH CAUSE OF ACTION: Pennsylvania Unfair Trade Practices and
`Consumer Protection Law .................................................................................................. 26
`
` SEVENTH CAUSE OF ACTION: Breach of Express Warranties
`
`(on behalf of the California Sub-Class and states with substantially similar laws) .......... 28
`
` EIGHTH CAUSE OF ACTION: Breach of Implied Warranties
`
`(on behalf of the California Sub-Class and states with substantially similar laws) .......... 29
`i
`
`CLASS ACTION COMPLAINT
`
`

`

`Case: 1:21-cv-06380 Document #: 1 Filed: 11/30/21 Page 3 of 39 PageID #:3
`
`
` NINTH CAUSE OF ACTION: Negligent Misrepresentation, Cal. Civ. Code §§
`1709-1710 and the common law of all states (on behalf of the Nationwide Class
`and the California Sub-Class) ............................................................................................ 31
`
` TENTH CAUSE OF ACTION: Fraud by Omission ........................................................ 33
`
`VIII. PRAYER FOR RELIEF ............................................................................................ 34
`
`IX. JURY DEMAND ......................................................................................................... 35
`
`
`
`
`
`
`
`
`
`
`
`ii
`
`CLASS ACTION COMPLAINT
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`

`

`Case: 1:21-cv-06380 Document #: 1 Filed: 11/30/21 Page 4 of 39 PageID #:4
`
`
`
`1
`
`Plaintiffs Lisa Boss, Linda Gunnett, and Peggy Tatum (“Plaintiffs”), on behalf of
`
`2
`
`themselves and all others similarly situated, by and through undersigned counsel, hereby
`
`3
`
`bring this action against The Kraft Heinz Company (“Kraft Heinz“ ) and Kraft Heinz
`
`4
`
`Foods Company LLC (“Kraft Heinz Foods,”) (collectively, “Defendants”), and upon
`
`5
`
`information and belief and investigation of counsel, allege as follows:
`
`6
`
`7
`
`I.
`
`JURISDICTION AND VENUE
`
`1.
`
`Plaintiffs bring this proposed class action in this Court pursuant to the Class
`
`8
`
`Action Fairness Act of 2005 (“CAFA”), Pub. L. No. 109-2, 119 Stat. 4 (2005).
`
`9
`
`2.
`
`This Court has subject matter jurisdiction over this proposed class action
`
`10
`
`under CAFA, 28 U.S. Code § 1332(d), which provides the federal courts with original
`
`11
`
`jurisdiction over any class action in which any member of the plaintiff class is a citizen of
`
`12
`
`a state different from any defendant and the matter in controversy exceeds $5 million in
`
`13
`
`the aggregate, exclusive of interest and costs.
`
`14
`
`3. Minimal diversity as required by 28 U.S.C. §§ 1332(a)(1), (d)(2)(A) is
`
`15
`
`satisfied as Plaintiffs as well as other members of the proposed class are citizens of states
`
`16
`
`other than Illinois and Defendants are citizens of Illinois.
`
`17
`
`4.
`
`The jurisdictional amount in controversy is satisfied. Plaintiffs allege on
`
`18
`
`information and belief that the total claims of the members of the proposed Class in this
`
`19
`
`action exceed $5 million in the aggregate, exclusive of interest and costs, as required by
`
`20
`
`28 U.S.C. § 1332(d)(2), (5).
`
`21
`
`5.
`
`This matter is not a “local controversy” pursuant to 28 U.S.C. §
`
`22
`
`1332(d)(5)(B). Plaintiffs allege on information and belief that more than two-thirds of the
`
`23
`
`members of the proposed Class are citizens of states other than Illinois and that the
`
`24
`
`proposed Class contains more than 100 persons.
`
`25
`
`6.
`
`This Court has both general and specific personal jurisdiction over the
`
`26
`
`Defendants.
`
`27
`
`28
`
`
`
`1
`
`CLASS ACTION COMPLAINT
`
`

`

`Case: 1:21-cv-06380 Document #: 1 Filed: 11/30/21 Page 5 of 39 PageID #:5
`
`
`
`1
`
`7.
`
`This Court has personal jurisdiction over Defendants because they have
`
`2
`
`affirmatively established and maintained contacts with the State of Illinois (“State”) and
`
`3
`
`are registered to do business in Illinois.
`
`4
`
`8.
`
`This court has general personal jurisdiction over Defendants because they
`
`5
`
`maintain corporate headquarters in Chicago, Illinois, and are otherwise at home in the
`
`6
`
`State.
`
`7
`
`9.
`
`This Court further has specific personal jurisdiction arising from Defendants’
`
`8
`
`decisions to market, distribute, and sell the products that are the subject of this action in
`
`9
`
`Illinois.
`
`10
`
`10. Defendants have sufficient minimum contacts with this State and sufficiently
`
`11
`
`avail themselves of the markets and legal protections of this State through promotion,
`
`12
`
`sales, and marketing of the Products within the State to render the exercise of jurisdiction
`
`13
`
`by this Court reasonable and fair.
`
`14
`
`11. Venue is proper in this County and this judicial district pursuant to 28 U.S.C.
`
`15
`
`§1391(a) because, as set forth below, Defendants conduct extensive business in this
`
`16
`
`district, Defendants made decisions and took actions in this district that give rise to
`
`17
`
`Plaintiffs’ causes of action, and because Defendants maintain corporate headquarters in
`
`18
`
`this district.
`
`19
`
`20
`
`II. NATURE OF THE ACTION
`
`11. This is a national consumer class action for the violation of state consumer
`
`21
`
`protection, unfair competition, and false advertising statutes, and for common-law breach
`
`22
`
`of warranty, negligent misrepresentation, and fraud by omission.
`
`23
`
`12. Defendants manufacture, label, distribute, advertise, and sell “water
`
`24
`
`enhancer” water-flavoring products packaged under the trade name, “MiO.”
`
`25
`
`26
`
`27
`
`28
`
`
`
`13. These Products are labeled as if they contain solely natural flavors.
`
`14. The Products however, contain undisclosed artificial flavoring.
`
`15. Federal and state law require any food or beverage product that contains any
`
`artificial flavor to prominently disclose this fact on the product’s front- and back-labels.
`2
`
`CLASS ACTION COMPLAINT
`
`

`

`Case: 1:21-cv-06380 Document #: 1 Filed: 11/30/21 Page 6 of 39 PageID #:6
`
`
`
`1
`
`2
`
`16. The Products’ labels omit all of the required disclosures.
`
`17. Because these labels conceal the fact that the Products are made with artificial
`
`3
`
`flavors, those labels are false and misleading.
`
`4
`
`18. The Products are misbranded under Federal and state law and therefore
`
`5
`
`unlawful to sell in the United States.
`
`6
`
`19. Defendants willfully conceal from consumers the fact that these Products
`
`7
`
`contain artificial flavoring chemicals that simulate the Products’ claimed natural flavors.
`
`8
`
`20. Defendants’ packaging, labeling, and advertising scheme for these Products
`
`9
`
`is intended to give consumers the false impression that they are buying a premium all-
`
`10
`
`natural product instead of a product that is artificially flavored.
`
`11
`
`21. Plaintiffs, who purchased the Products multiple times and were deceived by
`
`12
`
`Defendants’ unlawful conduct, bring this action on their own behalf and on behalf of
`
`13
`
`consumers nationwide to remedy Defendants’ unlawful acts.
`
`14
`
`22. On behalf of the Class as defined herein, Plaintiffs seek an order compelling
`
`15
`
`Defendants to, inter alia: (1) cease packaging, distributing, advertising, and selling the
`
`16
`
`Products in violation of U.S. FDA regulations and state consumer protection laws; (2)
`
`17
`
`inform consumers regarding the Products’ misbranding; (3) award Plaintiffs and the other
`
`18
`
`Class members restitution, actual damages, statutory damages, and punitive damages; and
`
`19
`
`(4) pay all costs of suit, expenses, and attorney fees.
`
`20
`
`21
`
`22
`
`III. PARTIES
`
`23. Defendant The Kraft Heinz Company is incorporated in Delaware.
`
`24. Kraft Heinz states in federal court filings that the corporation is co-
`
`23
`
`headquartered in Illinois and Pennsylvania.
`
`24
`
`25
`
`25. Kraft Heinz maintains headquarters at 200 E. Randolph Street, Chicago, IL.
`
`26. Kraft Heinz maintains a second headquarters at One PPG Place, Pittsburgh,
`
`26
`
`Pennsylvania.
`
`27
`
`28
`
`
`
`27. Defendant Kraft Heinz Foods is a subsidiary of Defendant Kraft Heinz.
`
`28. Kraft Heinz Foods is incorporated in Delaware.
`3
`
`CLASS ACTION COMPLAINT
`
`

`

`Case: 1:21-cv-06380 Document #: 1 Filed: 11/30/21 Page 7 of 39 PageID #:7
`
`
`
`1
`
`29. Kraft Heinz Foods states on the Product labels that its corporate headquarters
`
`2
`
`is in Chicago, Illinois.
`
`3
`
`30. Kraft Heinz Foods maintains headquarters at 200 E. Randolph Street,
`
`4
`
`Chicago, Illinois.
`
`5
`
`31. Kraft Heinz Foods is registered with the Illinois Secretary of State under
`
`6
`
`registration number 06356486.
`
`7
`
`32. Defendants manufacture, label, advertise, market, distribute, and sell the
`
`8
`
`Products in Illinois, California, Pennsylvania, and throughout the United States.
`
`9
`
`33. Plaintiff Lisa Boss is a resident and citizen of California and purchased the
`
`10
`
`Products multiple times in Tulare County, California, for personal and household
`
`11
`
`consumption.
`
`12
`
`34. Plaintiff Linda Gunnett is a resident and citizen of California, who purchased
`
`13
`
`the Products multiple times in Riverside County, California, for personal and household
`
`14
`
`consumption.
`
`15
`
`35. Plaintiff Peggy Tatum is a resident and citizen of California and purchased
`
`16
`
`the products multiple times in Contra Costa County, California, for personal and
`
`17
`
`household consumption.
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`IV. FACTUAL ALLEGATIONS
`
`1. Defendants Do Not Disclose That Their Products Are Artificially Flavored.
`
`36. At least eighteen of Defendants’ MiO flavored water enhancers (the
`
`“Products”) contain an undisclosed artificial flavor.
`
`37. Artificial dl-malic acid, a synthetic petrochemical, is in fact the primary
`
`flavoring agent in the Products.
`
`38. Sixteen of the eighteen Products list malic acid as either the first or second
`
`ingredient by weight after water.
`
`39. All of the Products’ front labels display the name of each Product’s
`
`4
`
`CLASS ACTION COMPLAINT
`
`

`

`Case: 1:21-cv-06380 Document #: 1 Filed: 11/30/21 Page 8 of 39 PageID #:8
`
`
`characterizing fruit or berry or “tea” flavor.2
`
`40.
`
` These label representations convey to the consumer by operation of federal
`
`1
`
`2
`
`3
`
`and state law that the Products are made exclusively from and flavored only with natural
`
`4
`
`fruits and berries or fruit and berry flavors.
`
`5
`
`41. None of the Products or Products’ packaging includes on either the front or
`
`6
`
`back label any indication that any of the Products contains artificial flavoring chemicals.
`
`7
`
`8
`
`42. The Products contain artificial flavoring chemicals.
`
`43. The Products are made with a synthetic chemical flavoring ingredient
`
`9
`
`identified in the product ingredient list as “malic acid”.
`
`10
`
`44. The “malic acid” that Defendants put in the Products is not a natural flavoring
`
`11
`
`but is instead a synthetic flavoring chemical manufactured in a petrochemical factory from
`
`12
`
`petroleum feedstocks.
`
`13
`
`45. Because the Products contain added artificial flavoring ingredients that
`
`14
`
`simulate and reinforce the Products’ characterizing fruit and berry flavors, the Products’
`
`15
`
`front labels are required by law to disclose the presence of those additional flavorings
`
`16
`
`rather than deceptively claim that the flavor is conferred only by natural flavorings.
`
`17
`
`46. All of the Products’ labeling omits the Federal and state-required “Artificial
`
`18
`
`Flavor” or “Artificially Flavored” label statement.
`
`19
`
`47. Front label images for representative Products are shown below for “Cherry
`
`20
`
`Blackberry,” “Acai Berry Storm,” and “Fruit Punch” flavors of the “MiO” and “MiO
`
`21
`
`Energy” labeled Products.
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`2 The eighteen Products include: Acai Berry Storm, Artic Grape, Berry Blast, Berry Grape,
`Berry Pomegranate, Blackberry Raspberry, Cherry Blackberry, Cranberry Raspberry, Fruit
`Punch, Mango Peach, Orange Vanilla, Orchard Apple, Strawberry Orange, Strawberry
`Pineapple Smash, Strawberry Watermelon, Sweet Tea, Tropical Cherry, and Tropical
`Fusion.
`
`5
`
`CLASS ACTION COMPLAINT
`
`

`

`Case: 1:21-cv-06380 Document #: 1 Filed: 11/30/21 Page 9 of 39 PageID #:9
`
`
`
`
`
`
`
`
`
`48. The Products’ labels fail to disclose that the Products contain artificial flavor.
`
`49. Defendants sell the Products individually and in multi-product packs.
`
`50. The front of the 4-bottle variety pack, shown below, also provides no
`
`indication that any of the packaged Products contain artificial flavors, even though the
`
`“Fruit Punch” and “Sweet Tea” products contain artificial flavors.
`
`
`
`
`
`
`
`51. The front of the 12-pack of Strawberry Watermelon, shown below, also
`
`provides no indication that the Product contains artificial flavors even though the Product
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`does in fact contain artificial flavors.
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`
`
`
`
`52. Representative back label images for three of the Products are provided
`
`below for the “Fruit Punch,” “Berry Blast,” and “Sweet Tea” flavors.
`
`6
`
`CLASS ACTION COMPLAINT
`
`

`

`Case: 1:21-cv-06380 Document #: 1 Filed: 11/30/21 Page 10 of 39 PageID #:10
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`53. The “malic acid” shown on the Products’ ingredient lists is the artificial
`
`flavoring ingredient dl-malic acid.
`
`54. None of the Products’ ingredient lists, as shown on the back labels, identify
`
`the presence of this artificial flavoring even though such disclosure is required by law.
`
`55. Under Federal and state law, the product ingredient list is also required to
`
`disclose the presence of artificial flavorings.
`
`56. The Products’ ingredient lists also fail to identify the “malic acid” in the
`
`Products as an artificial flavor.
`
`57. Neither the individual Products’ labels nor the Products’ variety pack labels
`
`include any of the required artificial-flavor disclosures.
`
`58. The malic acid Defendants added to the Products is a synthetic manufactured
`
`petrochemical called dl-malic acid.3
`
`59. The dl-malic acid added to the Products is a petrochemical that is synthesized
`
`from benzene or butane. It does not occur in nature.
`
`60. None of the Products’ labeling informs the consumer, as required by federal
`
`and state law, that the Products contain this artificial flavor.
`
`61. Federal and state consumer protection laws require all food products that
`
`contain artificial flavor to disclose this fact to consumers prominently on both the front
`
`and back labels.
`
`
`3 D-malic acid is also called d-hydroxybutanedioic acid or (R)-(+)-2-Hydroxysuccinic acid.
`7
`
`CLASS ACTION COMPLAINT
`
`

`

`Case: 1:21-cv-06380 Document #: 1 Filed: 11/30/21 Page 11 of 39 PageID #:11
`
`
`
`1
`
`62. Defendants fail to do so, unlawfully misleading consumers to believe that all
`
`2
`
`these Products are naturally flavored when in fact they contain artificial flavoring.
`
`3
`
`63. Defendants are sophisticated manufacturers, marketers, and distributors of
`
`4
`
`foods and beverages.
`
`5
`
`64. Food-ingredient suppliers offer manufacturers both the natural and artificial
`
`6
`
`versions of the flavoring ingredient malic acid.
`
`7
`
`65. Defendants chose to purchase the artificial version of malic acid, not the
`
`8
`
`natural, but label the Products as if they contained the natural compound instead.
`
`9
`
`66. Defendants, as sophisticated actors in the food and beverage industry, made
`
`10
`
`a conscious choice not to label the Products in accordance with federal and state statutory
`
`11
`
`and common law requirements.
`
`12
`
`67. Defendants knew or should have known that the Products are mislabeled and
`
`13
`
`misbranded and violate Federal and state consumer protection laws.
`
`14
`
`68. Defendants willfully conceal from consumers, through Product misbranding
`
`15
`
`and misleading advertising, the fact that the Products are artificially flavored.
`
`16
`
`17
`
`18
`
`2. Federal and State Law Require Defendants to Disclose the Artificial Flavor
`in the Products.
`
`69. An artificial flavor is “any substance, the function of which is to impart
`
`19
`
`flavor, which is not derived from a spice, fruit or fruit juice, vegetable or vegetable juice,
`
`20
`
`edible yeast, herb, bark, bud, root, leaf or similar plant material, meat, fish, poultry, eggs,
`
`21
`
`dairy products, or fermentation products thereof.” 21 CFR 101.22(a)(1).
`
`22
`
`70. The dl-malic acid that Defendants put in these Products is derived from
`
`23
`
`petrochemicals, not from “a spice, fruit or fruit juice, vegetable or vegetable juice, edible
`
`24
`
`yeast, herb, bark, bud, root, leaf or similar plant material. . . .”
`
`25
`
`71. The dl-malic acid in the Products provides the characterizing tart flavor of
`
`26
`
`the fruits and berries listed on the Products’ front labels.
`
`27
`
`28
`
`
`
`72. The “malic acid” that Defendants put in the Products is therefore an artificial
`
`8
`
`CLASS ACTION COMPLAINT
`
`

`

`Case: 1:21-cv-06380 Document #: 1 Filed: 11/30/21 Page 12 of 39 PageID #:12
`
`
`flavor under federal and state law.4
`
`73. Because it contains an artificial flavor, federal and state laws require the
`
`1
`
`2
`
`3
`
`Products to display both front- and back-label disclosures to inform consumers that they
`
`4
`
`are artificially flavored.
`
`5
`
`6
`
`7
`
`74. The Products’ labeling shows none of the required disclosures.
`
`75. The Products therefore violate federal and state consumer protection laws.
`
`76. U.S. Food, Drug, and Cosmetic Act regulations require that a food’s label
`
`8
`
`accurately describe the food product, its characterizing flavors, and all ingredients. See,
`
`9
`
`21 C.F.R. 102.5(a).
`
`10
`
`77. Under federal law, any recognizable primary flavor identified on the front
`
`11
`
`label of a food Product is referred to as a “characterizing flavor.”
`
`12
`
`78. Federal regulations hold that if “the label, labeling, or advertising of a food
`
`13
`
`makes any direct or indirect representations with respect to the primary recognizable
`
`14
`
`flavor(s), by word, vignette, e.g., depiction of a fruit, or other means” then “such flavor
`
`15
`
`shall be considered the characterizing flavor”. See 21 C.F.R. 101.22(i).
`
`16
`
`79. Each of the fruits and berries listed on the Products’ front-labels are primary
`
`17
`
`recognizable flavors and are therefore by law considered characterizing flavors.
`
`18
`
`80.
`
`If a product’s characterizing flavor is not created exclusively by the named
`
`19
`
`flavor ingredient, the product’s front label must state that the product contains either
`
`20
`
`natural or artificial flavorings or both.
`
`21
`
`81.
`
`If any artificial flavor “simulates, resembles or reinforces” the characterizing
`
`22
`
`flavor in the product, the food must be prominently labeled as “Artificially Flavored.” 21
`
`23
`
`C.F.R. 101.22(i) (3), (4).
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`4 Both the natural form and the artificial form of malic acid are considered “GRAS” –
`Generally Regarded as Safe – under U.S. food labeling laws. The artificial form, dl-malic
`acid, however, has not been extensively tested for safety in food.
`
`
`9
`
`CLASS ACTION COMPLAINT
`
`

`

`Case: 1:21-cv-06380 Document #: 1 Filed: 11/30/21 Page 13 of 39 PageID #:13
`
`
`
`1
`
`82. Federal regulations at 21 C.F.R. 101.22(c) require all foods containing
`
`2
`
`artificial flavoring to include:
`
`3
`
`4
`
`5
`
`6
`
`7
`
`A statement of artificial flavoring . . . [which] shall be placed on the food or
`
`on its container or wrapper, or on any two or all three of these, as may be
`
`necessary to render such a statement likely to be read by the ordinary person
`
`under customary conditions of purchase and use of such food.
`
`83. A food product’s label must also include a statement of the “presence or
`
`8
`
`absence of any characterizing ingredient(s) or component(s) . . . when the presence or
`
`9
`
`absence of such ingredient(s) or component(s) in the food has a material bearing on price
`
`10
`
`or consumer acceptance . . . and consumers may otherwise be misled about the presence
`
`11
`
`or absence of the ingredient(s) or component(s) in the food.” 21 C.F.R. 102.5(c).
`
`12
`
`84. Such statement must be in clearly noticeable print on the front display panel
`
`13
`
`and of sufficient size for an average consumer to notice.
`
`14
`
`15
`
`85. The Products’ labels do not include any of the required label statements.
`
`86. The Products’ labels therefore violate federal, California, Illinois and
`
`16
`
`Pennsylvania state laws as well as similar laws of other states.
`
`17
`
`87. California law prohibits corporations and other entities from making untrue
`
`18
`
`or misleading statements about goods, engaging in unethical practices injurious to
`
`19
`
`California residents or competing corporations and other entities, and from violating FDA
`
`20
`
`and other federal regulations and the laws of other states regarding consumer protections.
`
`21
`
`88. California’s Sherman law also incorporates by reference all of the federal
`
`22
`
`FDA labeling regulations so that any food product that is in violation of FDA regulations
`
`23
`
`also violates California state law.
`
`24
`
`89.
`
`Illinois law prohibits businesses from engaging in unfair methods of
`
`25
`
`competition and unfair or deceptive acts or practices in the conduct of any trade or
`
`26
`
`commerce to include making unlawful the employment of deception, misrepresentation,
`
`27
`
`and the concealment, suppression, or omission of material facts.
`
`28
`
`
`
`90. The Illinois Food Drug and Cosmetic Act (410 ILCS 620/11) also requires
`10
`
`CLASS ACTION COMPLAINT
`
`

`

`Case: 1:21-cv-06380 Document #: 1 Filed: 11/30/21 Page 14 of 39 PageID #:14
`
`
`Defendants to place on the Products’ labels a notice to inform consumers that the Products
`
`1
`
`2
`
`contain artificial flavoring.
`
`3
`
`91. Pennsylvania law prohibits businesses from engaging in unfair methods of
`
`4
`
`competition and unfair or deceptive practices in trade or commerce, including any
`
`5
`
`representations that goods have ingredients, characteristics, benefits, or qualities they do
`
`6
`
`not have and deceptive conduct likely to create confusion to the detriment of consumers.
`
`7
`
`92. Defendants were therefore required under all these states’ laws to place
`
`8
`
`prominently on the Products’ front labels a notice sufficient to allow consumers to
`
`9
`
`understand that the Products contain artificial flavorings.
`
`10
`
`93. Defendants failed to disclose in the Product labels that the Products contain
`
`11
`
`artificial flavors.
`
`12
`
`94. Defendants failed to accurately label the Products, deceiving consumers and
`
`13
`
`at a minimum violating federal law, rendering the Products misbranded and illegal to sell,
`
`14
`
`as well as the state laws of California, Illinois, and Pennsylvania.
`
`15
`
`95. Other states’ laws similarly require that food product labels must disclose the
`
`16
`
`presence of artificial flavoring and be accurate and complete and not misleading.
`
`17
`
`96. The Products are therefore misbranded and illegal to distribute or sell in
`
`18
`
`commerce in California, Illinois, Pennsylvania, and anywhere in the U.S.
`
`19
`
`97. Plaintiffs and proposed Class members were unaware that the Products
`
`20
`
`contained artificial flavors when they purchased them.
`
`21
`
`98. When purchasing the Products, Plaintiffs were seeking products of particular
`
`22
`
`qualities, specifically products that were flavored only with the natural ingredients claimed
`
`23
`
`on the labels and that did not contain artificial flavors.
`
`24
`
`99. Plaintiffs are not alone in these consumer preferences. Forbes Magazine
`
`25
`
`reported that 88% of consumers polled indicated they would pay more for foods perceived
`
`26
`
`as natural or healthy. “All demographics [of consumers]—from Generation Z to Baby
`
`27
`
`28
`
`
`
`11
`
`CLASS ACTION COMPLAINT
`
`

`

`Case: 1:21-cv-06380 Document #: 1 Filed: 11/30/21 Page 15 of 39 PageID #:15
`
`
`Boomers—say they would pay more” for such products, specifically including foods with
`
`no artificial flavors.5
`
`100. Plaintiffs lost money as a result of Defendants’ conduct because they
`
`1
`
`2
`
`3
`
`4
`
`purchased Products that contained undisclosed and undesirable artificial flavors at a price
`
`5
`
`premium.
`
`6
`
`101. Defendants’ marketing of the Products reflects this knowledge of
`
`7
`
`consumers’ preference for natural products – not by manufacturing the Products only with
`
`8
`
`natural ingredients but rather by concealing the fact that the Products contain artificial
`
`9
`
`flavoring chemicals.
`
`10
`
`11
`
`3. Defendants’ Competitors Label Their Products Lawfully.
`
`102. Defendants not only deceive consumers but also gain an unfair commercial
`
`12
`
`advantage in the marketplace by labeling the Products deceptively.
`
`13
`
`103. Other manufacturers of competing beverage and water enhancer products
`
`14
`
`label their products lawfully.
`
`15
`
`104. Other manufacturers of artificially-flavored fruit and berry-flavored drinks
`
`16
`
`and water enhancer products, for example, accurately and lawfully label their products as
`
`17
`
`“Artificially Flavored.”
`
`18
`
`105. Other competing manufacturers, offering products whose labels suggest as
`
`19
`
`Defendants do that their products are naturally flavored, truly make their products only
`
`20
`
`with natural ingredients.
`
`21
`
`106. Defendants, however, conceal the use of artificial flavoring, thus deceiving
`
`22
`
`consumers, illegally cutting costs and increasing profits, and competing unfairly and
`
`23
`
`unlawfully in the marketplace.
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`107. Defendants’ conduct injures competing manufacturers that do not engage in
`
`
`5 “Consumers Want Healthy Foods--And Will Pay More For Them”; Forbes Magazine,
`February 15, 2015. https://www.forbes.com/sites/nancygagliardi/2015/02/18/consumers-
`want-healthy-foods-and-will-pay-more-for-them/#4b8a6b4b75c5; last visited November
`3, 2021.
`
`12
`
`CLASS ACTION COMPLAINT
`
`

`

`Case: 1:21-cv-06380 Document #: 1 Filed: 11/30/21 Page 16 of 39 PageID #:16
`
`
`the same illegal behavior. Those manufacturers compete for market share and limited shelf
`
`1
`
`2
`
`space, as well as for consumers’ buying preferences and dollars.
`
`3
`
`108. Defendants’ competitors market their products so as to compete lawfully.
`
`4
`
`Kraft Heinz and Kraft Heinz Foods do not.
`
`5
`
`6
`
`7
`
`4. Plaintiffs and the Class Pay a Price Premium for Defendants’ Misbranded
`
`Products.
`
`109. Plaintiffs purchased the Products in California during the Class Period as
`
`8
`
`defined herein.
`
`9
`
`110. Plaintiff Peggy Tatum purchased the Products about two times per month
`
`10
`
`from about 2016 until October 2021 at Walmart and Target stores located in or near
`
`11
`
`Brentwood, California.
`
`12
`
`111. Plaintiff Lisa Boss purchased the Products one to two times per month from
`
`13
`
`about 2018 until Oct 2021 at various locations in California, most recently at a Walmart
`
`14
`
`warehouse store located at or near 3750 S. Mooney Boulevard, Visalia, CA 93277.
`
`15
`
`112. Plaintiff Linda Gunnett purchased the Products about once per month from
`
`16
`
`about 2019 until Oct 2021 from retailers in Riverside County including Ralphs, Walmart,
`
`17
`
`and Vons.
`
`18
`
`113. Plaintiffs purchased the Products at the marked retail prices, individually and
`
`19
`
`in variety packs, ranging from $2.75 to $4.99 per unit, and from time to time at other
`
`20
`
`promotional prices.
`
`21
`
`114. Plaintiffs first discovered Defendants’ unlawful conduct described herein in
`
`22
`
`2021, when they learned that the Products’ characterizing flavors were deceptively
`
`23
`
`simulated using artificial flavoring even though Defendants failed to disclose that fact on
`
`24
`
`the Products’ labels.
`
`25
`
`115. Plaintiffs were deceived by and relied upon the Products’ deceptive labeling,
`
`26
`
`and specifically Defendants’ omission of the fact that the Products contained artificial
`
`27
`
`flavorings. Plaintiffs purchased the Products believing they were naturally flavored, based
`
`28
`
`
`
`on the Products’ deceptive labeling and failure to disclose the artificially flavoring.
`13
`
`CLASS ACTION COMPLAINT
`
`

`

`Case: 1:21-cv-06380 Document #: 1 Filed: 11/30/21 Page 17 of 39 PageID #:17
`
`
`
`1
`
`116. Plaintiffs, as reasonable consumers, are not required to subject consumer
`
`2
`
`food products to laboratory analys