`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
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`EASTERN DIVISION
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`Melanie McDermott, individually and on
`behalf of all others similarly situated,
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`1:22-cv-01555
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`Plaintiff,
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`
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`- against -
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`Class Action Complaint
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`General Mills Sales, Inc.,
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`
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`Defendant
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`Jury Trial Demanded
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`Plaintiff alleges upon information and belief, except for allegations pertaining to Plaintiff,
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`which are based on personal knowledge:
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`1. General Mills Sales, Inc. (“Defendant”) manufactures, labels, markets, and sells fruit
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`snacks filled with thick, fruit flavored liquids under the Gushers brand (“Product”).
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`
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`
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`Case: 1:22-cv-01555 Document #: 1 Filed: 03/24/22 Page 2 of 25 PageID #:2
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`2.
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`The relevant representations include “Fruit Gushers,” “Fruit Flavored Snacks,”
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`“Strawberry Splash – Flavored With Other Natural Flavors,” “Tropical Flavors – Flavored With
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`Other Natural Flavors,” “No Artificial Flavors,” “Gelatin Free,” and various fruit-colored liquids
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`and images of the individual pieces.
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`3.
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`The representations about the Product’s fruit flavors cause consumers to expect only
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`natural fruit flavors.
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`4. However, the representations are false, deceptive, and misleading, because the
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`Product contains artificial flavoring ingredients.
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`I.
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`CONSUMER DEMAND FOR NATURAL FLAVORS
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`5.
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`Consumers have been increasingly concerned about the ingredients added to what
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`they eat and drink.
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`6.
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`7.
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`This is especially so when it comes to parents with young children.
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`Surveys have shown that such parents are less likely to buy snacks for their kids
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`which have artificial ingredients, even where the food or beverage is considered an indulgence or
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`treat.
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`8. According to the Wall Street Journal, “As consumer concern rises over artificial
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`ingredients, more food companies are reconstructing recipes” to remove artificial flavors.1
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`9. According to Paul Manning, chief executive officer and president of Sensient
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`Technologies, “Consumer desire for naturally flavored products is an emerging trend.”2
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`10. According to Consumers Union, over 80% of consumers expect that the word
`
`
`1 Lauren Manning, How Big Food Is Using Natural Flavors to Win Consumer Favor, Wall Street
`Journal.
`2 Keith Nunes, Using natural ingredients to create authentic, fresh flavors, Food Business News,
`Sept. 20, 2018.
`
`2
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`
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`“natural,” in almost any context, on a food label means that a food does not contain any artificial
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`ingredients.
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`11. Explanations for why consumers prefer foods containing natural, instead of artificial
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`ingredients, are varied.
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`12. Many Americans believe products are healthier when artificial ingredients are
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`removed, even in “unhealthy” categories such as snacks, cake mix, and frozen pizza.
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`13. A recent survey reported that over 82% of US respondents believe that foods with
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`artificial flavors are less healthy than those promoted as containing natural flavors and/or not
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`containing artificial flavors.
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`14. Consumers seek to avoid artificial flavors because they are weary of ingredients
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`which are highly processed with chemical additives and synthetic solvents in laboratories.
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`15. According to Nielsen, the absence of artificial flavors is very important for over 40%
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`of respondents to their Global Health & Wellness Survey.
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`16. One scholar theorized “the preference for natural products appeals to a moral
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`ideology and offers a moral satisfaction.”3
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`17. The trade journal, Perfumer & Flavorist, described “The Future of Artificial Flavors
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`& Ingredients” as bleak, given consumer opposition to these synthetic ingredients.4
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`18. Mintel announced that consumer avoidance of artificial flavors is just as strong as
`
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`3 Rozin, P., Spranca, M., Krieger, Z., Neuhaus, R., Surillo, D., Swerdlin, A., & Wood, K. (2004).
`Preference for natural: Instrumental and ideational/moral motivations, and the contrast between
`foods and medicines. Appetite, 43(2), 147–154. doi:10.1016/j.appet.2004.03.005.
`4 Jim Kavanaugh, The Future of Artificial Flavors & Ingredients, Perfumer & Flavorist, June 12,
`2017.
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`3
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`their desire for natural flavors, in its Report, “Artificial: Public Enemy No. 1.”5
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`19. About half of Americans say they seek out natural flavors at least some of the time.
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`20.
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`In contrast, artificial flavors were sought out by only about one in 10 consumers,
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`with approximately half saying they avoid each of them at least some of the time.
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`21. Nielsen reported that 62% of consumers try to avoid artificial flavors.
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`22. New Hope Network concluded that 71% of consumers avoid artificial flavors.
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`23. Label Insight determined that 76% of consumers avoid artificial flavors.
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`24. A recent survey shows more than three in four people worldwide are convinced that
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`artificial flavors have no place on their ingredient lists.6
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`25. According to Forbes, 88% of consumers consider foods without artificial flavors to
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`be more natural and healthier than foods with artificial flavors, and would pay more for such foods.
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`II. CONSUMERS VALUE FRUITS
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`26. Consumers increasingly value fruit and natural fruit flavors.
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`27. Even where a product is a snack food, the addition of natural fruit flavors and absence
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`of artificial flavors causes consumers to feel better about consuming it, without the typical guilt
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`from eating a snack.
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`28. The last two decades have seen significant increases in consumer demand for
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`strawberries and tropical fruits.
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`29. Among tropical fruits, the most consumed include pineapples, guavas, mangos, and
`
`
`5 Alex Smolokoff, Natural color and flavor trends in food and beverage, Natural Products Insider,
`Oct. 11, 2019; Thea Bourianne, Exploring today’s top ingredient trends and how they fit into our
`health-conscious world, March 26-28, 2018; Nancy Gagliardi, Consumers Want Healthy Foods –
`And Will Pay More For Them, Forbes, Feb 18, 2015.
`6 What ‘Natural’ Really Means to Consumers GNT Group’s Guide to Global Consumer Demands
`attests importance of natural colors for future-proof products, July 13, 2017.
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`4
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`bananas.
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`30. Other tropical fruits which are popular include papayas, oranges, passionfruit, limes,
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`lemons and kiwis.
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`III. PRODUCT REPRESENTED AS ONLY CONTAINING NATURAL FLAVORS
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`31. Defendant markets the Product with the prominent statement, “No Artificial
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`Flavors.”
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`32. The representation that the Product has “No Artificial Flavors” appeals to the more
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`
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`than seven out of ten consumers who avoid artificial flavors.
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`33. This conveys to consumers that the Product will get its strawberry and tropical taste
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`from only natural flavoring ingredients.
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`34. Though the ingredients listed for the strawberry and tropical varieties include
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`“Natural Flavor,” they also include “Malic Acid.”
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`5
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`Strawberry Ingredients: Sugar, Corn
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`Syrup, Dried Corn Syrup, Modified
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`Corn Starch, Pear Puree
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`Concentrate, Fructose, Maltodextrin,
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`Palm Oil, Glycerin. Contains 2% or
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`less of: Cottonseed Oil, Glycerin, Grape
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`Juice Concentrate, Carrageenan, Citric
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`Acid, Monoglycerides, Sodium Citrate,
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`Malic Acid, Vitamin C (ascorbic acid),
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`Natural Flavor, Potassium Citrate,
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`
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`Agar-Agar, Red 40, Xanthan Gum.
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`Tropical Ingredients: Sugar, Corn
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`Syrup, Dried Corn Syrup, Modified
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`Corn Starch, Pear Puree
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`Concentrate, Fructose, Maltodextrin,
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`Palm Oil. Contains 2% or less of:
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`Cottonseed Oil, Glycerin, Grape Juice
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`Concentrate, Carrageenan, Citric Acid,
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`Monoglycerides, Sodium Citrate, Malic
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`Acid, Vitamin C (ascorbic acid),
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`Natural Flavor, Potassium Citrate,
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`Agar-Agar, Xanthan Gum, Color (red
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`
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`40, blue 1, yellow 5 & 6).
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`35. Each variety contains more malic acid than natural flavor.
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`36. Unbeknownst to consumers, the ingredient list does not inform consumers that this
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`malic acid is an artificial flavoring ingredient which provides flavoring to the Product.
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`37.
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`Instead of listing DL-Malic Acid, the ingredient is identified only as “Malic Acid,”
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`in violation of regulations that ingredients must be listed by their specific, and not general name.
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`6
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`IV. MALIC ACID
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`38. A flavor is a substance the function of which is to impart taste. See 21 C.F.R. §
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`101.22(a)(1) and (3).
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`39. Taste is the combination of sensations arising from specialized receptor cells located
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`in the mouth.7
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`40. Taste can be defined as sensations of sweet, sour, salty, bitter, and umami.
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`41. However, limiting taste to five categories suggests that taste is simple, which is not
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`true.
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`42. For example, the taste of sour includes the sourness of vinegar (acetic acid), sour
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`milk (lactic acid), lemons (citric acid), apples (malic acid), and wines (tartaric acid).
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`43. Each of those acids is responsible for unique sensory characteristics of sourness.
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`V. FLAVOR PROPERTIES OF STRAWBERRY AND TROPICAL FRUITS
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`44. Fruit flavors are the sum of the interaction between sugars, acids, and volatile
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`compounds.8
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`45. Consumer acceptability of the flavor of strawberries and tropical fruits are based on
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`their perceived sweetness and tartness, determined by their sugar to acid ratio.
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`46. Sugars, mainly glucose and fructose, and their ratio to acids, such as citric and malic
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`acid, determine the sweetness of fruits.
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`47. The table below shows the acid composition of numerous fruits.
`
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`7 Gary Reineccius, Flavor Chemistry and Technology § 1.2 (2d ed. 2005).
`8 Y.H. Hui, et al., Handbook of Fruit and Vegetable Flavors, p. 693 (2010).
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`7
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`48.
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`In strawberries, pineapples, mangos, and guavas, citric acid and malic acid are the
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`most important organic acids.
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`49.
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`In bananas, papaya, and watermelon, the predominant fruit acid is malic acid.
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`50. Malic acid contributes to the fruity, sweet and sour taste not just of these tropical
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`fruits but of almost every other tropical fruit.
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`A. Chemical Structure of Malic Acid
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`51. Malic acid (molecular formula C4H6O5) is the common name for 1-hydroxy-1, 2-
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`ethanedicarboxylic acid.
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`52. Malic acid has two isomers, or different arrangements of atoms in the molecule, L-
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`malic acid, and D-malic acid. 21 C.F.R. § 184.1069.
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`53. An isomer is a molecule sharing the same atomic make-up as another but differing
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`in structural arrangements.9
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`9 Dan Chong and Jonathan Mooney, Chirality and Stereoisomers (2019).
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`8
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`54. Stereoisomers contain different types of isomers, each with distinct characteristics
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`that separate each other as different chemical entities with different chemical properties.
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`55. Stereoisomers differ from each other by spatial arrangement, meaning different
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`atomic particles and molecules are situated differently in any three-dimensional direction by even
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`one degree.
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`56. An enantiomers is a type of stereoisomer that is a mirror-image and cannot be
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`superimposed.
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`57. Enantiomers are like right and left-hand versions of the same molecular formula.
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`58. D-Malic Acid and L-Malic Acid are enantiomers.
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`59. Below are skeletal formulas of the enantiomers D-Malic Acid and L-Malic Acid:
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`60. L-malic acid occurs naturally in various fruits and is known for providing sweetness
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`
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`and tartness, among other flavors.
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`61. D-Malic Acid does not occur naturally.
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`62. D-Malic Acid is most commonly found as a racemic mixture of the D isomer and L
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`isomer, DL-Malic Acid, which is commercially made from petroleum products.
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`9
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`VI. ADDITION OF DL-MALIC ACID
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`63. When chemical components of a solution are added to a solution, the previous
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`combination of chemicals changes.
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`64. Adding DL-Malic Acid to a solution of natural flavorings containing L-Malic Acid
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`changes the concentration of malic acid in the solution and the ratio of total malic acid to sugars
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`in that solution.
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`65. Natural sugars – like glucose, fructose, and sucrose – combined with artificial DL-
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`Malic Acid in a ratio engineered to resemble the natural chemical combination of sugar and L-
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`Malic Acid found in the characterizing strawberry and tropical flavors of the Product is not
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`equivalent to the natural flavor of those characterizing fruits and flavors.
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`66. A natural chemical combination of sugar and L-Malic Acid, altered by adding
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`artificial DL-Malic Acid, is no longer equivalent to the original chemical combination of sugar
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`and L-Malic Acid, and therefore no longer the natural flavor.
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`67. Defendant includes DL-Malic Acid to help make the Product taste tart and fruity,
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`like strawberries and tropical fruits taste naturally.
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`68. Defendant adds artificial DL-malic acid to the Product to create, enhance, simulate,
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`and/or reinforce the sweet and tart taste that consumers associate with strawberries and tropical
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`fruits.
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`69. Defendant had the option to add naturally extracted L-Malic Acid, naturally
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`manufactured acid such as citric acid, natural strawberry or tropical fruit flavors to the Product,
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`but used artificial DL-Malic Acid because it was likely cheaper or more accurately resembled the
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`natural strawberry and tropical fruit flavors than citric acid or other acids.
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`70. DL-malic acid is synthetically produced from petroleum in a high-pressure, high-
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`temperature, catalytic process.
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`10
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`71. Since there are natural and artificial types of malic acid, laboratory analysis is
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`required to identify which type was used in the Product.
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`72. Laboratory analysis concluded the strawberry and tropical varieties of the Product
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`contain artificial, DL-malic acid, instead of natural, L-malic acid.
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`73. The Product’s front label is misleading because it states, “No Artificial Flavors,”
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`“Fruit Flavored Snacks,” and “Flavored With Other Natural Flavors,” when these statements are
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`false and misleading.
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`74. The ingredients are declared in a way that is misleading and contrary to law, because
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`Defendant lists “Malic Acid,” the ingredient’s generic name, instead of its specific name, “DL-
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`Malic Acid.”
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`VII. REQUIREMENTS FOR LABELING
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`75. Federal and identical state regulations prohibit false and deceptive identification of
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`the source of a food or beverage’s characterizing flavors.
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`76. Artificial flavor is defined as “any substance, the function of which is to impart
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`flavor, which is not derived from a spice, fruit or fruit juice, vegetable or vegetable juice, edible
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`yeast, herb, bark, bud, root, leaf or similar plant material, meat, fish, poultry, eggs, dairy products,
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`or fermentation products thereof.” 21 C.F.R § 101.22(a)(1).
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`77. Natural flavor is defined as “essential oil, oleoresin, essence or extractive, protein
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`hydrolysate, distillate, or any product of roasting, heating or enzymolysis, which contains the
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`flavoring constituents” from fruits or vegetables, “whose significant function in food is flavoring
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`rather than nutritional.” 21 C.F.R § 101.22(a)(3).
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`78. DL-Malic Acid is not a “natural flavor” as this term is defined by federal and state
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`regulations and is not derived from a fruit or vegetable or any other natural source.
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`11
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`79. A combination of sugar and DL-Malic Acid in a ratio resembling a fruit flavor cannot
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`be derived from a fruit or vegetable.
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`80. A combination of sugar, natural L-Malic Acid, and artificial DL-Malic Acid
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`combined in a way to resemble the natural ratio of sugar and L-Malic Acid found in the
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`characterizing natural flavors of the Product cannot be derived from a fruit or vegetable.
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`81. A combination of sugars and artificial DL-Malic Acid engineered to resemble the
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`natural ratio of sugars and natural L-Malic Acid that make up the natural flavor of the
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`characterizing fruits of the Product is not a natural flavor.
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`82. The natural flavor of strawberries and tropical fruits is heavily dependent on specific
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`ratios of sugar and L-Malic Acid, while the Product’s flavors depend upon a ratio of sugar and
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`DL-Malic Acid.
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`83. DL-Malic Acid could function as a flavor enhancer or PH balancer.
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`84. A flavor enhancer is “added to supplement, enhance, or modify the original taste and
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`or aroma of a food without imparting a characteristic taste or aroma of its own.” 21 C.F.R. §
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`170.3(o)(11).
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`85. For example, malic acid added to vinegar (ascetic acid) dishes like barbecue pork,
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`coleslaw, or pickled eggs would most likely not fundamentally alter the underlying vinegar flavors.
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`86. However, because the flavor imparted by malic acid is a core component of
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`strawberries and tropical fruits, DL-Malic Acid does not function as a flavor enhancer.
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`87. Under these circumstances, artificial DL-Malic Acid fundamentally alters the
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`original combination of sugar and natural L-Malic Acid core to strawberry and tropical fruits, so
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`that the flavors of the Product are no longer a natural ratio of sugar and L-Malic Acid but instead
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`an artificial ratio of sugar and DL-Malic Acid.
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`12
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`88. PH balancers are “substances added to change or maintain active acidity or basicity,
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`including buffers, acids, alkalis, and neutralizing agents.” 21 C.F.R. § 170.3(o)(23).
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`89. The malic acid used is not a PH balancer because it is not necessary to change or
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`maintain active acidity or basicity in the Product.
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`90.
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`Irrespective of the purpose Defendant may claim DL-Malic Acid was added to the
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`Product, it has the same effect on its characterizing flavors.
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`91. Defendant does not have the ability to command DL-Malic Acid to only perform
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`certain functions and is not allowed to decide which malic acid constitutes flavor and which malic
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`acid constitutes only a flavor enhancer or PH balancer.
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`92. The Product’s primary or “characterizing” flavors are strawberries and tropical fruit.
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`21 C.F.R. § 101.22.
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`93. The Product’s
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`label makes “direct or
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`indirect representations” about
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`its
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`characterizing flavors, through words, “Strawberry [Splash]” and “Tropical [Flavors],” and the
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`multicolored labeling purporting to be juices from various fruits. 21 C.F.R. § 101.22(i).
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`94. Federal and state regulations require the Product to disclose whether its
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`characterizing strawberry and tropical fruit flavor is from strawberries and tropical fruit, natural
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`sources other than strawberries and tropical fruit, and/or from artificial, chemical sources, such as
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`DL-Malic Acid, from petroleum. 21 C.F.R. § 101.22(i).
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`95. Since the Product contains artificial flavor, DL-Malic Acid, that simulates, resembles
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`and reinforces the characterizing strawberry and tropical fruit flavor, the name of the
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`characterizing flavors “shall be accompanied by the word(s) ‘artificial’ or ‘artificially flavored,’”
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`such as “Artificial Strawberry and Tropical Flavored.” 21 C.F.R. § 101.22(i)(2).
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`96. The statements, “Flavored With Other Natural Flavors,” “Fruit Flavored Snacks,”
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`13
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`“No Artificial Flavors,” and the multicolored label and packaging caused consumers like Plaintiff
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`to expect only natural flavors.
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`97. Consumers are unable to learn the malic acid listed in the ingredients is the artificial
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`version without a chemistry kit.
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`98. Consumers are unable to learn the malic acid is used to provide flavoring without a
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`detailed knowledge of chemistry and relevant regulations.
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`99. Defendant is required to tell consumers if it used the artificial version of malic acid,
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`instead of only using the generic name.
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`100. The Product’s strawberry and tropical flavors containing DL-Malic Acid resembles
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`the natural characterizing flavors represented to be used.
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`101. Plaintiff purchased the Product because the packaging claimed it contained “No
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`Artificial Flavors” and that only natural flavors were responsible for the strawberry and tropical
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`fruit taste.
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`102. Plaintiff was unaware that the Product contained artificial DL-Malic Acid at the time
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`of purchase, and that this ingredient affected its characterizing flavors.
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`103. Defendant, and not Plaintiff, knew or should have known that the statement, “No
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`Artificial Flavors,” was false, deceptive, and misleading, and that Plaintiff would not be able to
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`tell the Product contained artificial DL- Malic Acid unless Defendant disclosed this, as required
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`by law.
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`104. Defendant employs professional chemists to create the chemical flavor formula of
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`the Product.
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`105. Defendant knew or should have known that DL-Malic Acid is not naturally
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`occurring, and that by adding DL-Malic Acid to the Product, the natural flavorings would be
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`14
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`fundamentally changed.
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`106. Defendant knew that DL-Malic Acid would contribute to the tart and fruity
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`strawberry and tropical fruit taste, and that it was used to enhance the taste of strawberries and
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`tropical fruits.
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`107. On information and belief, Defendant through their employees did know that DL-
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`Malic Acid was not naturally occurring and would fundamentally alter any natural combination of
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`sugar and L-Malic Acid in the Product but chose to include DL-Malic Acid because it was cheaper
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`for Defendant than using natural L-Malic Acid and because it did not believe its customers were
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`educated enough to know the difference.
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`VIII. CONCLUSION
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`108. Defendant makes other representations and omissions with respect to the Product
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`which are false and misleading.
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`109. Reasonable consumers must and do rely on a company to honestly and lawfully
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`market and describe the components, attributes, and features of a product, relative to itself and
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`other comparable products or alternatives.
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`110. The value of the Product that Plaintiff purchased was materially less than its value
`
`as represented by Defendant.
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`111. Defendant sold more of the Product 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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`112. Had Plaintiff and proposed class members known the truth, they would not have
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`bought the Product or would have paid less for it.
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`113. As a result of the false and misleading representations, the Product is sold at a
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`premium price, approximately no less than no less than $4.49 per 4.8 OZ, excluding tax and sales,
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`15
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`higher than similar products, represented in a non-misleading way, and higher than it would be
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`sold for absent the misleading representations and omissions.
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`Jurisdiction and Venue
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`114. 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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`115. 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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`116. Plaintiff Melanie McDermott is a citizen of Illinois.
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`117. Defendant General Mills Sales, Inc. is a Delaware corporation with a principal place
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`of business in Minneapolis, Hennepin County, Minnesota.
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`118. The class of persons Plaintiff seeks to represent includes persons who are citizens of
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`different states from which Defendant is a citizen
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`119. The members of the class Plaintiff seeks to represent are more than 100, because the
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`Product has been sold for several years, with the representations described here, in thousands of
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`locations, in the states covered by Plaintiff’s proposed classes.
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`120. The Product is available to consumers from third-parties, which includes grocery
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`stores, dollar stores, warehouse club stores, drug stores, convenience stores, big box stores, and
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`online.
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`121. Venue is in the Eastern Division in this District because a substantial part of the
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`events or omissions giving rise to these claims occurred in Cook County, including Plaintiff’s
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`purchase, consumption, and/or use of the Product and awareness and/or experiences of and with
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`the issues described here.
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`16
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`Parties
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`122. Plaintiff Melanie McDermott is a citizen of Chicago, Cook, Illinois.
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`123. Defendant General Mills Sales, Inc. is a Delaware corporation with a principal place
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`of business in Minneapolis, Minnesota, Hennepin County.
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`124. Defendant is one of the largest food companies in the world.
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`125. In its early years, the company’s focus was on milling flour, and it was led by a
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`military general, thus the name of “General Mills” seemed to stick.
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`126. During the Second World War, General Mills switched from producing foods to
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`armaments for the military.
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`127. Following the war, General Mills developed numerous culinary innovations to
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`improve the lives of Americans.
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`128. The Gushers brand is sold under the Betty Crocker line of products.
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`129. Betty Crocker is considered the mother of the American kitchen, because of her
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`profound influence on the culinary practices in this country.
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`130. Betty Crocker was known for eschewing artificial and synthetic ingredients, in favor
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`of authentic ingredients, with as few chemically processed ingredients as possible.
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`131. The Betty Crocker brand tells consumers a product will meet the high standards Ms.
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`Crocker espoused.
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`132. The Gushers brand is one of the top selling fruit snacks in America.
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`133. A lunchbox mainstay, children and adults enjoy Gushers because they have a chewy
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`and fruity taste.
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`134. That the Product purports to get its taste from natural fruit flavors causes many
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`parents to buy them for their children, because they seek to avoid foods containing artificial
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`flavors.
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`135. Even though Gushers is a snack food, consumers increasingly turn to snacks that are
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`indulgences, provided they contain ingredients which they value or, in this instance, represent that
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`they do not contain ingredients which they try to avoid, such as artificial flavors.
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`136. Consumers trust General Mills and the Gushers brand to be honest with them,
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`because they have built up a reservoir of good will when it comes to foods, especially snacks.
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`137. The Product is available to consumers from third-parties, which includes grocery
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`stores, dollar stores, warehouse club stores, drug stores, convenience stores, big box stores, and
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`online.
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`138. Plaintiff purchased the Product on one or more occasions within the statutes of
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`limitations for each cause of action alleged, at stores including Meijer, 14169 S Bell Rd Homer
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`Glen IL 60491-8464 between February 8, 2022, and March 8, 2022, and/or among other times.
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`139. Plaintiff believed and expected the Product contained only natural flavoring
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`ingredients and did not contain artificial flavoring ingredients because that is what the
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`representations and omissions said and implied.
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`140. Plaintiff relied on the words, terms coloring, descriptions, layout, packaging, tags,
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`and/or images on the Product, on the labeling, statements, omissions, claims, statements, and
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`instructions, made by Defendant or at its directions, in digital, print and/or social media, which
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`accompanied the Product and separately, through in-store, digital, audio, and print marketing.
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`141. Plaintiff bought the Product at or exceeding the above-referenced price.
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`142. Plaintiff would not have purchased the Product if she knew the representations and
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`omissions were false and misleading or would have paid less for it.
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`143. Plaintiff chose between Defendant’s Product and products represented similarly, but
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`which did not misrepresent their attributes, requirements, instructions, features, and/or
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`components.
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`144. The Product was worth less than what Plaintiff paid and she would not have paid as
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`much absent Defendant's false and misleading statements and omissions.
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`145. Plaintiff intends to, seeks to, and will purchase the Product again when she can do so
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`with the assurance the Product's representations are consistent with its abilities, attributes, and/or
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`composition.
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`146. Plaintiff is unable to rely on the labeling and representations not only of this Product,
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`but other similar fruit snacks, because she is unsure whether those representations are truthful.
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`Class Allegations
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`147. Plaintiff seeks certification under Fed. R. Civ. P. 23 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; and
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`Consumer Fraud Multi-State Class: All persons in
`the States of Arkansas, Iowa, Utah, Idaho, Alaska,
`and Montana who purchased the Product during the
`statutes of limitations for each cause of action
`alleged.
`
`148. Common questions of issues, law, and fact predominate and include whether
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`Defendant’s representations were and are misleading and if Plaintiff and class members are entitled
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`to damages.
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`149. Plaintiff's claims and basis for relief are typical to other members because all were
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`subjected to the same unfair, misleading, and deceptive representations, omissions, and actions.
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`150. Plaintiff is an adequate representative because her interests do not conflict with other
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`members.
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`151. No individual inquiry is necessary since the focus is only on Defendant’s practices
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`and the class is definable and ascertainable.
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`152. 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.
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`153. Plaintiff's counsel is competent and experienced in complex class action litigation
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`and intends to protect class members’ interests adequately and fairly.
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`154. 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)
`
`155. Plaintiff incorporates by reference all preceding paragraphs.
`
`156. Plaintiff believed the Product contained only natural flavoring ingredients and did
`
`not contain artificial flavoring ingredients.
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`157. Defendant’s false, misleading and deceptive representations and omissions are
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`material in that they are likely to influence consumer purchasing decisions.
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`158. Defendant misrepresented the Product through statements, omissions, ambiguities,
`
`half-truths and/or actions.
`
`159. Plaintiff relied on the representations and omissions to believe the Product contained
`
`only natural flavoring ingredients and did not contain artificial flavoring ingredients.
`
`160. Plaintiff and class members would not have purchased the Product 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)
`
`161. The Consumer Fraud Acts of the States in the Consumer Fraud Multi-State Class are
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`similar to the consumer protection statute invoked by Plaintiff and prohibit the use of unfair or
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`deceptive business practices in the conduct of commerce.
`
`162. The members of the Consumer Fraud Multi-State Class reserve their rights to assert
`
`their consumer protection claims under the Consumer Fraud Acts of the States they represent
`
`and/or the consumer protection statute invoked by Plaintiff.
`
`163. Defendant intended that members of the Consumer Fraud Multi-State Class would
`
`rely upon its deceptive conduct.
`
`164. As a result of Defendant’s use of artifice, and unfair or deceptive acts or business
`
`practices, the members of the Consumer Fraud Multi-State Class sustained damages.
`
`165. Defendant’s conduct showed motive and a reckless disrega