throbber
Case: 1:22-cv-02421 Document #: 1 Filed: 05/06/22 Page 1 of 46 PageID #:1
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`
`
` CASE NO. 1:22-cv-2421
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`CLASS ACTION COMPLAINT
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`JURY TRIAL DEMANDED
`
`
`JULIE RUIZ, individually and on behalf
`of all others similarly situated,
`
`Plaintiff,
`
`
`v.
`
`
`CONAGRA BRANDS, INC.,
`
`Defendant,
`
`
`
`
`
`CLASS ACTION COMPLAINT
`
`Plaintiff Julie Ruiz (“Plaintiff”) individually and on behalf of all others similarly situated,
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`brings this Class Action Complaint against Defendant Conagra Brands, Inc. (“Conagra” or
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`“Defendant”) and allege the following based on personal knowledge as to herself, and as to all
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`other matters, upon information and belief, including investigation conducted by her attorneys.
`
`NATURE OF THE ACTION
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`1.
`
`This action concerns Conagra’s false and misleading labeling of its Angie’s
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`BOOMCHICKAPOP® microwave popcorn products (“PFAS Popcorn” or “Products”)1, which
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`are prominently labeled as containing “only real ingredients,” “ingredients sourced from nature,”
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`
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`1 The action concerns varieties of Angie’s BOOMCHICKAPOP® microwave popcorn products,
`which, based on information and belief, utilize a substantially similar (if not identical)
`microwave popping bag. As alleged herein, Conagra conceals the inclusion of PFAS in its
`Products from consumers. Accordingly, discovery will reveal the exhaustive list of substantially
`similar Products that are included in this action.
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`

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`and “Real, Simple Ingredients. Nothing Fake,” when, in fact, Plaintiff’s testing has revealed the
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`Products contain per- and polyfluoroalkyl substances (“PFAS”).
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`2.
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`Conagra formulates, manufactures, markets and sells the Products, which it
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`uniformly represents as containing “only real, simple ingredients,” and “nothing fake.”2
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`2 https://www.boomchickapop.com/microwave-popcorn/real-butter-microwave-popcorn (Last
`accessed April 16, 2021).
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`2
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`3.
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`As one of North America’s leading packaged food manufacturers, with products in
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`97% of America’s households, Conagra knows the importance of marketing and labeling and the
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`value of the label representations it carefully chooses for placement on its products.
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`4.
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`Conagra intentionally uses the words “simple,” “nature,” and “real” to describe the
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`source of its Products’ ingredients.
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`5.
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`“Simple” is defined as “not elaborate or artificial.”3 “Nature” is defined as “the
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`physical world and everything in it that is not made by people.”4
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`6.
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`“Real”
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`is
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`defined
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`as
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`“produced using traditional methods and
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`without artificial substances”5 and “not fake, false, or artificial”6 and thus likewise confirms for
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`reasonable consumers that the Products will be free from ingredients that are artificial or human-
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`made.
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`7.
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`Reasonable consumers, therefore, fairly and reasonably understand that a product
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`marketed as containing only “real, simple ingredients,” “ingredients sourced from nature,” and
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`“nothing fake” would not contain human-made chemicals, let alone human-made chemicals
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`known to be harmful.
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`8.
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`However, despite Conagra’s consistent and pervasive marketing of the Products as
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`containing only real, simple ingredients sourced from nature, the Products actually contain
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`significant levels of PFAS chemicals—a category of human-made chemicals with a toxic,
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`persistent, and bioaccumulative nature which are associated with numerous health concerns.
`
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`3 https://www.dictionary.com/browse/simple
`4 https://www.britannica.com/dictionary/nature
`5 https://dictionary.cambridge.org/us/dictionary/english/real
`6 https://www.britannica.com/dictionary/real
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`3
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`9.
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`Conagra knows that consumers are concerned with the ingredients in their food.
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`Thus, Conagra has intentionally utilized its marketing, centering on its use of only “real,” simple
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`and naturally-sourced ingredients, to drive sales and increase profits, including by targeting health-
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`conscious consumers who reasonably believe that the Products are free from unnatural or artificial
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`ingredients like harmful human-made chemicals.
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`10.
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`The presence of PFAS chemicals in the Products is entirely inconsistent with
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`Conagra’s uniform representations and renders them “unnatural” and not “real” or “simple” by
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`definition.
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`11.
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`As a result of Conagra’s misconduct, Plaintiff and putative Class Members have
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`suffered injury in fact, including economic damages.
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`12.
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`Plaintiff brings this suit to halt Conagra’s dissemination of false and misleading
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`representations and to correct the false and misleading perception that Conagra’s representations
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`have created in the minds of reasonable consumers.
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`13.
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`Plaintiff seeks damages, injunctive relief, and other equitable remedies for herself
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`and for the proposed classes.
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`JURISDICTION AND VENUE
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`14.
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`This Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C.
`
`§ 1332 of the Class Action Fairness Act of 2005 because: (1) there are 100 or more putative
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`Class Members; (ii) the aggregate amount in controversy exceeds $5,000,000.00, exclusive of
`
`interest and costs; and (iii) there is minimal diversity because Plaintiff and Defendant are citizens
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`of different states. This Court has supplemental jurisdiction over Plaintiff’s state law claims
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`pursuant to 28 U.S.C. § 1367.
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`4
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`

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`15.
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`This Court has personal jurisdiction over Defendant because it is headquartered
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`in this District, Defendant has substantial aggregate contacts with this District, including
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`engaging in conduct that has a direct, substantial, reasonably foreseeable, and intended effect of
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`causing injury to persons throughout the United States, and purposely availed itself of the laws
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`of the United States and the State of Illinois.
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`16.
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`In accordance with 28 U.S.C. § 1391, venue is proper in this District because a
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`substantial part of the conduct giving rise to Plaintiff’s claims occurred in this District,
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`Defendant transacts business in this District, and Defendant has intentionally availed itself of
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`the laws and markets within this District.
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`PARTIES
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`17. At all relevant times, Plaintiff Julie Ruiz has resided in San Bernadino County,
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`California.
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`18.
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`Conagra Brands, Inc. is incorporated in Delaware with its principal place of
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`business located at 222 W. Merchandise Mart Plaza, Suite 1300, Chicago, Illinois.
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`FACTUAL ALLEGATIONS
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`Angie’s BOOMCHICKAPOP® Microwave Popcorn Products
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`19. Microwave popcorn is a popular snack item enjoyed by millions of consumers.
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`Since it was first introduced in the 1980s, it has made up a significant portion of the snack food
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`market. As the COVID-19 pandemic forced millions of Americans to spend more time at home,
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`the microwave popcorn industry increased nearly 15% percent, making it a $1.0 billion dollar
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`category of the snack food industry.7
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`7 Popcorn Sales Pop Off With Rise In At-Home Consumption Occasions, Gifting, CANDY &
`SNACK TODAY, https://candyusa.com/cst/popcorn-sales-pop-off-with-the-rise-of-at-home-
`consumption-occasions-gifting/ (Last accessed March 22, 2022).
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`20.
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`Popcorn is popular for a variety of reasons, but its relative healthfulness is chief
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`among them. Popcorn is a whole-grain that is naturally low in fat and calories, sugar-free, and
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`gluten-free, making it a good fit for a variety of diets and health-conscious lifestyles.8
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`21.
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`The Products at issue are microwave popcorn products sold under the Angie’s
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`BOOMCHICKAPOP® brand name.
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`22.
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`23.
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`Defendant Conagra Brand’s Inc. acquired Angie’s BOOMCHICKAPOP® in 2017.
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`Prior to its acquisition, and continuing through the present, the Angie’s
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`BOOMCHICKAPOP® brand has been recognized by consumers as a healthy and natural snack
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`brand that is free from artificial ingredients. This perception is supported by the brand’s mission
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`statement9:
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`Angie’s BOOMCHICKAPOP® has a simple belief: Make a better-
`for-you snack with real, simple ingredients. After all, when it comes
`to everyday snacking, what people want is whole grain. Not a list of
`words that make you tired just trying to pronounce them.
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`24.
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`At the time of Conagra’s acquisition, Angie’s BOOMCHICKAPOP® was only
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`available as a ready-to-eat bagged popcorn. In October 2018, Conagra introduced Angie’s
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`BOOMCHICKAPOP® microwave popcorn.10
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`25.
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`The Products are sold in three flavors: Real Butter Popcorn, Sea Salt Popcorn and
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`Lightly Sweet Kettle Corn.
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`26.
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`The Products are sold at mass market retailers and grocery stores throughout the
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`United States, including Target, Walmart, Publix, Meijer’s, and Walgreens, as well as authorized
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`online retailers such as Amazon.
`
`
`8 All About Popcorn, POPCORN.ORG, https://www.popcorn.org/All-About-Popcorn/Our-Story
`(Last accessed March 22, 2022).
`9 https://www.conagrafoodservice.com/products/angies
`10 https://www.conagrabrands.com/news-room/news-angies-boomchickapop-continues-growth-
`and-innovation-with-launch-of-microwave-popcorn-prn-122651 (Last accessed April 16, 2022)
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`6
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`27. Microwave popcorn, including the Products at issue in this case, is prepared by
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`heating a specially designed bag that contains unpopped popcorn kernels and any additional
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`additives, such as butter and salt. The bag is placed directly in the microwave where the heat from
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`cooking pops the kernels, creating the finished popcorn product.
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`28.
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`Based on information and belief, all of the Products utilize a substantially similar,
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`if not identical, microwave popping bag.
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`Defendant’s False and Deceptive Advertising
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`29.
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`Conagra uniformly represents the Products as a food that is made with “real, simple
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`ingredients,” “nothing fake,” and “ingredients sourced from nature” (collectively, “Real and
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`Naturally-Sourced Ingredient Representations”).
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`30.
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`The Real and Naturally-Sourced Ingredient Representations appear prominently on
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`the front11 and sides12 of the Products’ packaging:
`
`
`11 https://www.boomchickapop.com/microwave-popcorn/real-butter-microwave-popcorn (Last
`accessed April 16, 2021).
`12
`https://www.rossgranvillemarket.com/shop/pantry/snacks_chips_and_dips/popcorn/unpopped/bo
`omchickapop_microwave_sea_salt_popcorn_4_ea/p/1564405684703356929
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`
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`7
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`31.
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`The Real and Naturally-Sourced Ingredient Representations also appear on the
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`Products’ individual microwave bags13:
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`13 https://www.abillion.com/reviews/60ef9557a567a40099a89758
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`9
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`32.
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`The Real and Naturally-Sourced Ingredient Representations are central to
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`Conagra’s marketing and sale of its Products and are strategically employed to convince
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`consumers that the Products are free of unnatural or artificial ingredients, including toxic human-
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`made ingredients.
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`33.
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`Conagra corroborates its label statements on its website by featuring images of the
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`boxes with the Real and Naturally-Sourced Ingredient Representations, describing the Products as
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`made with “just the good stuff” and “nothing fake”14:
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`
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`34.
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`Conagra also promotes its PFAS Popcorn on its social media accounts by posting
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`images of the Products’ boxes and which contain the Real and Naturally-Sourced Ingredient
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`Representations, along with additional representations about the Products’ ingredients15:
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`14 https://www.boomchickapop.com (Last accessed April 20, 2022).
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`15 https://www.instagram.com/p/BpPektVBz9A (Last accessed April 16, 2022).
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`10
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`Case: 1:22-cv-02421 Document#: 1 Filed: 05/06/22 Page 11 of 46 PagelD #:11
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`ie angiesboomchickapop ‘+ Follow «++
`
`angiesboomchickapop ®% You asked,
`we answered.Introducing Angie’s
`BOOMCHICKAPOPMicrowave
`Popcorn! Real, simple ingredients.
`Nothing fake. Now available in three of
`yourfavorite flavors: Real Butter, Sea
`Salt and Lightly Sweet Kettle Corn.
`Whichonewill you try first?!? #BOOM
`#crushit sj: @tabithablue
`
`#microwave #newproduct#kettlecorn
`#seasalt #butter #popcorn
`#boomchickapop #glutenfree
`#wholegrain #nonGMO
`184w
`
`i)
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`9AV
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`3,749 views
`
`W
`
`OCTOBER 22, 2018 Login to like or comment.
`Which onewill you try first?!? #BOOM #crushit fi: @tabithablue
`
`
`
`angiesboomchickapop @ + Follow
`
`angiesboomchickapop @ You asked, we answered. Introducing
`Angie’s BOOMCHICKAPOP Microwave Popcorn! Real, simple
`ingredients. Nothing fake. Now available in three of your favorite
`flavors: Real Butter, Sea Salt and Lightly Sweet Kettle Corn.
`
`
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`11
`11
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`Case: 1:22-cv-02421 Document #: 1 Filed: 05/06/22 Page 12 of 46 PageID #:12
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`35.
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`Further, Conagra is intentional in its design of the Real and Naturally-Sourced
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`Ingredient Representations. Conagra admits that it purposefully designs its product labeling as
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`“simple enhancements” designed to entice health-conscious consumers by helping them “make
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`better-informed food choices to improve their diet and health.”16
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`36.
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`Conagra’s focus on its “real” and “simple” labeling carries through all aspects of
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`its marketing. Conagra uses “SmartLabel” – an online resource that provides consumers with
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`detailed information on products’ ingredients and other attributes.17
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`37.
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`For example, the Real Butter flavor is described as being made with just a few
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`ingredients18:
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`
`
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`16https://www.conagrabrands.com/our-company/overview/company-milestones (Last accessed
`April 13, 2022).
`17 https://www.smartlabel.org/faq
`18 https://smartlabel.labelinsight.com/product/6376409/other/claims (Last accessed April 6,
`2022).
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`12
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`38.
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`Conagra also spotlights its “free from” product attributes on the Products’ boxes
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`and its online marketing of the Products, in an effort to bolster its Natural Ingredient Claims19:
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`39.
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`Conagra is well aware that the future success of its business is dependent on its
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`ability to meet consumer demand for food products that exclude ingredients which are known or
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`suspected to be harmful to human health. In assessing potential risks to its sales and profits,
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`Conagra has acknowledged that “[h]ealth care issues facing the United States and health-
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`conscious consumer expectations have put increasing pressure on the food industry to constantly
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`19 https://www.boomchickapop.com/about-us (Last accessed April 21, 2022).
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`13
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`Case: 1:22-cv-02421 Document #: 1 Filed: 05/06/22 Page 14 of 46 PageID #:14
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`evaluate the nutritional profiles of its products. If our products fail to keep up with health trends
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`and consumer expectations, our business performance may be negatively impacted.”20
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`40.
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`Conagra is also aware that its business could be affected by consumer concerns or
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`perceptions regarding the health effects of certain product ingredients.21 Accordingly, Conagra’s
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`brand portfolio—and more importantly, its marketing of those brands—has evolved to satisfy
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`changing food preferences, such as demand for products that eliminate unnatural, human-made, or
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`toxic chemicals.
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`41.
`
`Conagra’s acquisition of Angie’s BOOMCHICKAPOP® was part of this
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`evolution. In an October 2018 press release, Conagra stated: “We see great potential for Angie's
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`BOOMCHICKAPOP to continue growing as we focus on bringing the attributes consumers look
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`to the brand for – flavorful snacks made with real, simple ingredients – into new products and
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`categories. With Angie's BOOMCHICKAPOP Microwave Popcorn, we saw an opportunity to
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`create a new experience for our fans: enjoying a hot, freshly popped bowl of our flavorful popcorn
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`while feeling good about what they’re eating.”22 (emphasis added)
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`42.
`
`To further distinguish itself from its competitors in its effort to appeal to health-
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`conscious consumers, and to garner the trust of those consumers, Conagra has also engaged in a
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`public relations campaign in which it represents itself as being transparent about the ingredients in
`
`its products:
`
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`20https://www.conagrabrands.com/sites/g/files/qyyrlu371/files/2016-
`10/ConAgra%20Corporate%20Responsibility%20Report_2011.pdf (Last accessed April 14,
`2022).
`21 https://www.sec.gov/ix?doc=/Archives/edgar/data/0000023217/000156459021037738/cag-
`10k_20210530.htm
`22 https://www.conagrabrands.com/news-room/news-angies-boomchickapop-continues-growth-
`and-innovation-with-launch-of-microwave-popcorn-prn-122651
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`14
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`Image 2.23
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`43.
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`Conagra claims to “take food safety seriously every step of the way—from
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`sourcing safe ingredients, to implementing appropriate shipping and storage, to packaging our
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`food with clear and safe directions for microwave preparation.” 24
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`44.
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`Conagra further represents that “[t]hrough nutrition panels, ingredient statements
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`and responsible marketing, we maintain open, honest communication with our stakeholders.”25
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`PFAS Chemicals and Associated Risks
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`45.
`
`PFAS are a category of highly persistent and potentially harmful human-made
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`chemicals.26
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`46.
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`PFAS are not naturally occurring.27 They were first developed by scientists in the
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`1940s.28 Thus, they are indisputably “unnatural” and not “real” or “simple.”
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`47.
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`The human-made PFAS chemicals, which are in the PFAS Popcorn, are sometimes
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`called “forever chemicals” because they bioaccumulate, or build up in the body over time.
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`
`23https://www.conagrabrands.com/citizenship-reports/conagra-brands-citizenship-report-2021
`(Last accessed April 14, 2022).
`24 https://www.conagrabrands.com/our-company/corporate-social-responsibility/food-safety
`(Last accessed April 14, 2022).
`25 https://www.conagrabrands.com/our-company/corporate-social-responsibility/food-quality-
`safety
`26 PFAS Explained, EPA, https://www.epa.gov/pfas/pfas-explained (last visited Nov. 27, 2021).
`27 https://www.atsdr.cdc.gov/pfas/resources/pfas-faqs.html
`28 https://www.3m.com/3M/en_US/pfas-stewardship-us/pfas-history/
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`15
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`48.
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`Diet is considered a major route of PFAS exposure for humans, and reasonable
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`consumers purchasing products represented as containing ingredients that are “real,” “simple,”
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`“sourced from nature” and “nothing fake” would not expect those products to contain harmful
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`human-made chemicals, such as PFAS.29
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`49.
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`PFAS chemicals have been associated with a variety of negative health effects for
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`humans and the environment. The health risks associated with PFAS include, but are not limited
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`to, decreased male and female fertility, negative developmental effects or delays in children,
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`increased risk of cancers, liver damage, asthma and thyroid disease, adverse impacts on the
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`immune system, interference with hormones and increased cholesterol levels.30
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`50.
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`According to the Environmental Protection Agency, limiting exposure to PFAS can
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`help protect individual health. “Because certain PFAS are known to cause risks to human health,
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`the most important steps you and your family can take to protect your health is to understand how
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`to limit your exposure to PFAS by taking [steps to] reduce possible exposure during daily
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`activities.”31
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`51.
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`Because PFAS accumulates in body tissues over time, the most obvious way to
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`avoid exposure is for consumers to avoid products which they know contain PFAS.32
`
`
`29 Dietary Habits Related to Food Packaging and Population Exposure to PFASs,
`Environmental Health Perspectives, https://ehp.niehs.nih.gov/doi/full/10.1289/EHP4092
`30 See https://www.epa.gov/pfas/our-current-understanding-human-health-and-environmental-
`risks-pfas; 30 Center for Disease Control and Prevention Agency for Toxic Substances and
`Disease Registry, What are the health effects of PFAS?, U.S. DEPT. OF HEALTH AND HUMAN
`SERVS., https://www.atsdr.cdc.gov/pfas/health-effects/index.html (last visited Nov. 27, 2021);
`Liza Gross, These Everyday Toxins may be Hurting Pregnant Women and Their Babies, N.Y.
`TIMES (Sept. 23, 2020, updated Oct. 18, 2021)
`https://www.nytimes.com/2020/09/23/parenting/pregnancy/pfas-toxins-chemicals.html.
`31 https://www.epa.gov/pfas/meaningful-and-achievable-steps-you-can-take-reduce-your-risk
`32 https://www.healthline.com/health-news/how-to-reduce-your-exposure-to-pfas-the-hidden-
`toxic-forever-chemicals#How-to-limit-PFAS-exposure
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`16
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`52.
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`Conagra is well aware of this, which is exactly why it has engaged in an aggressive,
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`uniform marketing campaign intended to convince consumers that the Products are real and
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`sourced from nature sourced
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`53.
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`Conagra has engaged in this uniform marketing campaign in an effort to convince
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`reasonable consumers to believe that the Products are superior to other products that are not real
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`or sourced from nature.
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`54.
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`Reasonable consumers purchasing the Products would believe, based on Conagra’s
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`real and sourced from nature representations, that the Products do not contain unnatural or human-
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`made chemicals that could adversely impact their health.
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`PFAS Use in Microwave Popcorn Bags
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`55.
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`Food contact materials, such as wrappers and packaging, are often treated with
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`PFAS to increase water and grease resistance and enhance the material’s non-stick properties.33
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`PFAS can also help ingredients from leaking out of their packaging.34
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`56.
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`The use of PFAS chemicals in food contact materials is concerning because studies
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`have confirmed that PFAS migrates to food, where it is then ingested by consumers. 35
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`57.
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`Compared with other types of materials that come into contact with food,
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`microwave popcorn bags have among the highest concentrations of PFAS chemical migration. 36
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`33 https://saferchemicals.org/wp-
`content/uploads/2018/12/saferchemicals.org_take_out_toxics_pfas_chemicals_in_food_packagin
`g.pdf?x15132 (Last accessed April 21, 2022).; See also Begley TH, Hsu W, Noonan G,
`Diachenko G. Migration of fluorochemical paper additives from food-contact paper into foods
`and food simulants. Food Addit Contam Part A Chem Anal Control Expo Risk Assess. 2008
`Mar;25(3):384-90. doi: 10.1080/02652030701513784. PMID: 18311629.
`34 https://ehp.niehs.nih.gov/doi/full/10.1289/EHP4092
`35 Migration of fluorochemical paper additives from food-contact paper into foods and food
`simulants, Food Additives & Contaminants, https://doi.org/10.1080/02652030701513784
`36 Dietary Habits Related to Food Packaging and Population Exposure to PFASs,
`Environmental Health Perspectives, https://ehp.niehs.nih.gov/doi/full/10.1289/EHP4092
`
`
`
`17
`
`

`

`Case: 1:22-cv-02421 Document #: 1 Filed: 05/06/22 Page 18 of 46 PageID #:18
`
`58.
`
`In fact, studies show that consumption of microwave popcorn is associated with
`
`higher PFAS chemical levels in humans as a direct consequence of PFAS migration from
`
`microwave popcorn bags; furthermore, consuming microwave popcorn creates significantly higher
`
`exposure to PFAS in humans than other foods that come into contact with packaging materials
`
`containing PFAS.37
`
`59.
`
`Part of the reason that microwave popcorn creates a unique risk of PFAS exposure
`
`to humans is due to the fact that PFAS chemical migration increases with higher temperatures,
`
`longer contact time with the treated packaging, and the presence of emulsifiers. 38 All of these
`
`factors are present when preparing popcorn.
`
`60.
`
`Studies have shown that oil containing even small amounts of an emulsifier—as is
`
`present in the Products39—can significantly enhance migration of a fluorochemical from paper.40
`
`Additionally, studies have shown that salt—also present in the Products—increases the migration
`
`of PFAS chemicals to food.41
`
`
`37 Presence of Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS) in Food Contact Materials
`(FCM) and Its Migration to Food - PMC (nih.gov)
`38 Dietary Habits Related to Food Packaging and Population Exposure to PFASs | Environmental
`Health Perspectives | Vol. 127, No. 10 (nih.gov)
`39 Based on information and belief, Conagra uses palm oil as an emulsifier in its Products. See
`https://productswithoutpalmoil.com/palm-oil-uses-what-is-palm-oil-used-
`for/#Why_palm_oil_is_used_in_food
`40 Migration of fluorochemical paper additives from food-contact paper into foods and food
`simulants, Food Additives & Contaminants, https://doi.org/10.1080/02652030701513784
`41 Presence of Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS) in Food Contact Materials
`(FCM) and Its Migration to Food, Foods.,
`https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8306913/
`
`
`
`18
`
`

`

`Case: 1:22-cv-02421 Document #: 1 Filed: 05/06/22 Page 19 of 46 PageID #:19
`
`61.
`
`Studies have also found that PFAS chemicals are in the vapors from cooked
`
`microwave popcorn bags, indicating the potential for inhalation exposure when the bags are
`
`opened by consumers.42
`
`Plaintiff’s Independent Testing Confirms the Presence of PFAS Chemicals in the Products
`
`62.
`
`Plaintiff sought independent third-party testing to determine whether the Products’
`
`bags contain PFAS chemicals.
`
`63.
`
`Plaintiff’s independent testing was conducted in accordance with accepted industry
`
`standards for detecting whether the Products contain organic fluorine, which is a surrogate for
`
`PFAS chemicals.
`
`64.
`
`There are more than 12,000 PFAS chemicals currently in existence.43 Accordingly,
`
`it is impractical, if not impossible, for scientists and researchers to test for the presence of each of
`
`these 12,000 chemicals in any particular sample.
`
`65.
`
`The presence of organic fluorine in a sample, however, indicates the sample
`
`contains PFAS, and is therefore a widely-accepted method of determining whether a sample
`
`contains PFAS.
`
`66.
`
`Here, Plaintiff’s testing detected the presence of 51 ppm of organic fluorine in the
`
`Products.
`
`67.
`
`Plaintiff’s testing demonstrates that the Products contain levels of unnatural,
`
`human-made PFAS chemicals in the Products in direct opposition to Conagra’s uniform
`
`representations.
`
`Defendant’s Unlawful Conduct
`
`
`42 Dietary Habits Related to Food Packaging and Population Exposure to PFASs,
`Environmental Health Perspectives, https://ehp.niehs.nih.gov/doi/full/10.1289/EHP4092
`43 https://comptox.epa.gov/dashboard/chemical-lists/pfasmaster (Last accessed April 11, 2022).
`
`
`
`19
`
`

`

`Case: 1:22-cv-02421 Document #: 1 Filed: 05/06/22 Page 20 of 46 PageID #:20
`
`68.
`
`At all times relevant to this action, Conagra has been aware that its Products utilize
`
`PFAS chemicals to create grease resistance and/or enhance non-stick properties when cooking
`
`popcorn.
`
`69.
`
`Since at least January 2006, Conagra has acknowledged to the public that it sells
`
`microwave popcorn in packaging coated with PFAS, including in a January 31, 2006 article in the
`
`Wall Street Journal.45
`
`70.
`
`Since at least 2006, shareholders have urged Conagra’s Board of Directors to
`
`consider eliminating the use of PFAS in its food packaging, including in microwave popcorn.46
`
`71.
`
`Since at least 2006, consumers have expressed concern about the use of PFAS in
`
`Conagra’s products, including by sending more than 13,500 personal letters to grocery store
`
`managers which asked grocery stores to discontinue the sale of food utilizing PFAS in its
`
`packaging. Conagra was aware of this grass roots campaign, which was organized by advocacy
`
`group Ohio Citizen Action, and responded by issuing a cease-and-desist letter to the organization.47
`
`72.
`
`To capitalize on increasing consumer demand for products free from artificial
`
`ingredients, including harmful human-made chemicals like PFAS, Conagra has knowingly and
`
`willfully deployed a concerted strategy to distinguish its Products from competing options in the
`
`highly competitive snack industry by representing its PFAS Popcorn as a product free from
`
`artificial ingredients.
`
`73.
`
`Throughout the class period, Conagra has targeted health-conscious consumers by
`
`falsely and misleadingly representing its Products are only made with “real” and “simple”
`
`
`45 https://www.wsj.com/articles/SB113867354944860566
`46 https://iehn.org/resources/resolution/conagra-pfoa-related-chemicals-in-product-packaging
`47 https://www.healthandenvironment.org/partnership_calls/363
`
`
`
`20
`
`

`

`Case: 1:22-cv-02421 Document #: 1 Filed: 05/06/22 Page 21 of 46 PageID #:21
`
`ingredients from “natural sources” with “nothing fake.” Consequently, reasonable consumers
`
`believe the Popcorn is free of unnatural, human-made chemicals.
`
`74.
`
`Conagra’s strategy to stay aligned with consumer preferences in order to retain a
`
`competitive advantage in the marketplace, which includes representing to sell products which
`
`contain only real and simple ingredients from natural sources, would inevitably be negatively
`
`impacted if it disclosed the presence of PFAS in its Products.
`
`75.
`
`Further, Conagra’s claims touting it bona fides as a company dedicated to natural,
`
`clean products and sustainability, in conjunction with its conspicuous representations pertaining
`
`to the Products’ other attributes that consumers associate with products free from artificial
`
`ingredients, further contribute to the reasonable consumer perception and belief that the Products
`
`contain only natural ingredients and are free of human-made chemicals.
`
`76.
`
`Consumers lack the expertise to ascertain the true ingredients in Conagra’s
`
`Products prior to purchase. Accordingly, reasonable consumers must, and do rely on Conagra to
`
`accurately and honestly advertise its Products’ ingredients as real, simple and natural, and not
`
`contradict those representations by using unnatural human-made chemicals in its Products that
`
`are known to contaminate food upon cooking and which pose a risk to human health. Such
`
`misrepresentations are material to reasonable consumers’ purchasing decisions.
`
`77.
`
`Conagra’s representations that the Products contain only naturally-sourced, “real”
`
`ingredients, including inter alia, the Real and Naturally-Sourced Ingredient Representations
`
`described herein, are false because products containing toxic, human-made ingredients like PFAS
`
`are unnatural and not real by definition.
`
`78.
`
`Conagra’s Real and Naturally-Sourced Ingredient Representations are likely to
`
`mislead reasonable consumers, and indeed did mislead Plaintiff and Class members regarding the
`
`
`
`21
`
`

`

`Case: 1:22-cv-02421 Document #: 1 Filed: 05/06/22 Page 22 of 46 PageID #:22
`
`presence of PFAS chemicals in its Products. Accordingly, these acts and practices by Conagra are
`
`deceptive.
`
`79.
`
`Customers reasonably relied on Conagra’s false statements and misleading
`
`representations, and reasonably expected that Conagra’s Products would conform with its Real
`
`and Naturally-Sourced Ingredient Representations and, as such, would not contain unnatural,
`
`human-made PFAS chemicals.
`
`80.
`
`Conagra’s false statements, misleading representations and material omissions are
`
`intentional, or otherwise entirely careless, and render its Products worthless or less valuable.
`
`81.
`
`Plaintiff purchased the Products because she wanted microwave popcorn that did
`
`not contain artificial or chemical ingredients not from natural sources.
`
`82.
`
`If Conagra had disclosed to Plaintiff and putative Class Members that its Popcorn
`
`contained PFAS chemicals, Plaintiff and putative Class Members would not have purchased
`
`Conagra’s PFAS Popcorn or they would have paid less for the products.
`
`83.
`
`Plaintiff and Class Members were among the intended recipients of Conagra’s
`
`deceptive representations and omissions described herein.
`
`84.
`
`Conagra’s representations and omissions, as described herein, are material in that
`
`a reasonable person would attach importance to such information and would be induced to act

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