Case: 1:22-cv-02421 Document #: 1 Filed: 05/06/22 Page 1 of 46 PageID #:1
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`
`
` CASE NO. 1:22-cv-2421
`
`CLASS ACTION COMPLAINT
`
`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,
`
`brings this Class Action Complaint against Defendant Conagra Brands, Inc. (“Conagra” or
`
`“Defendant”) and allege the following based on personal knowledge as to herself, and as to all
`
`other matters, upon information and belief, including investigation conducted by her attorneys.
`
`NATURE OF THE ACTION
`
`1.
`
`This action concerns Conagra’s false and misleading labeling of its Angie’s
`
`BOOMCHICKAPOP® microwave popcorn products (“PFAS Popcorn” or “Products”)1, which
`
`are prominently labeled as containing “only real ingredients,” “ingredients sourced from nature,”
`
`
`
`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.
`
`

`

`Case: 1:22-cv-02421 Document #: 1 Filed: 05/06/22 Page 2 of 46 PageID #:2
`
`and “Real, Simple Ingredients. Nothing Fake,” when, in fact, Plaintiff’s testing has revealed the
`
`Products contain per- and polyfluoroalkyl substances (“PFAS”).
`
`2.
`
`Conagra formulates, manufactures, markets and sells the Products, which it
`
`uniformly represents as containing “only real, simple ingredients,” and “nothing fake.”2
`
`
`
`
`
`
`
`
`
`
`2 https://www.boomchickapop.com/microwave-popcorn/real-butter-microwave-popcorn (Last
`accessed April 16, 2021).
`
`
`
`2
`
`

`

`Case: 1:22-cv-02421 Document #: 1 Filed: 05/06/22 Page 3 of 46 PageID #:3
`
`3.
`
`As one of North America’s leading packaged food manufacturers, with products in
`
`97% of America’s households, Conagra knows the importance of marketing and labeling and the
`
`value of the label representations it carefully chooses for placement on its products.
`
`4.
`
`Conagra intentionally uses the words “simple,” “nature,” and “real” to describe the
`
`source of its Products’ ingredients.
`
`5.
`
`“Simple” is defined as “not elaborate or artificial.”3 “Nature” is defined as “the
`
`physical world and everything in it that is not made by people.”4
`
`6.
`
`“Real”
`
`is
`
`defined
`
`as
`
`“produced using traditional methods and
`
`without artificial substances”5 and “not fake, false, or artificial”6 and thus likewise confirms for
`
`reasonable consumers that the Products will be free from ingredients that are artificial or human-
`
`made.
`
`7.
`
`Reasonable consumers, therefore, fairly and reasonably understand that a product
`
`marketed as containing only “real, simple ingredients,” “ingredients sourced from nature,” and
`
`“nothing fake” would not contain human-made chemicals, let alone human-made chemicals
`
`known to be harmful.
`
`8.
`
`However, despite Conagra’s consistent and pervasive marketing of the Products as
`
`containing only real, simple ingredients sourced from nature, the Products actually contain
`
`significant levels of PFAS chemicals—a category of human-made chemicals with a toxic,
`
`persistent, and bioaccumulative nature which are associated with numerous health concerns.
`
`
`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
`
`
`
`3
`
`

`

`Case: 1:22-cv-02421 Document #: 1 Filed: 05/06/22 Page 4 of 46 PageID #:4
`
`9.
`
`Conagra knows that consumers are concerned with the ingredients in their food.
`
`Thus, Conagra has intentionally utilized its marketing, centering on its use of only “real,” simple
`
`and naturally-sourced ingredients, to drive sales and increase profits, including by targeting health-
`
`conscious consumers who reasonably believe that the Products are free from unnatural or artificial
`
`ingredients like harmful human-made chemicals.
`
`10.
`
`The presence of PFAS chemicals in the Products is entirely inconsistent with
`
`Conagra’s uniform representations and renders them “unnatural” and not “real” or “simple” by
`
`definition.
`
`11.
`
`As a result of Conagra’s misconduct, Plaintiff and putative Class Members have
`
`suffered injury in fact, including economic damages.
`
`12.
`
`Plaintiff brings this suit to halt Conagra’s dissemination of false and misleading
`
`representations and to correct the false and misleading perception that Conagra’s representations
`
`have created in the minds of reasonable consumers.
`
`13.
`
`Plaintiff seeks damages, injunctive relief, and other equitable remedies for herself
`
`and for the proposed classes.
`
`JURISDICTION AND VENUE
`
`14.
`
`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
`
`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
`
`of different states. This Court has supplemental jurisdiction over Plaintiff’s state law claims
`
`pursuant to 28 U.S.C. § 1367.
`
`
`
`4
`
`

`

`Case: 1:22-cv-02421 Document #: 1 Filed: 05/06/22 Page 5 of 46 PageID #:5
`
`15.
`
`This Court has personal jurisdiction over Defendant because it is headquartered
`
`in this District, Defendant has substantial aggregate contacts with this District, including
`
`engaging in conduct that has a direct, substantial, reasonably foreseeable, and intended effect of
`
`causing injury to persons throughout the United States, and purposely availed itself of the laws
`
`of the United States and the State of Illinois.
`
`16.
`
`In accordance with 28 U.S.C. § 1391, venue is proper in this District because a
`
`substantial part of the conduct giving rise to Plaintiff’s claims occurred in this District,
`
`Defendant transacts business in this District, and Defendant has intentionally availed itself of
`
`the laws and markets within this District.
`
`PARTIES
`
`17. At all relevant times, Plaintiff Julie Ruiz has resided in San Bernadino County,
`
`California.
`
`18.
`
`Conagra Brands, Inc. is incorporated in Delaware with its principal place of
`
`business located at 222 W. Merchandise Mart Plaza, Suite 1300, Chicago, Illinois.
`
`FACTUAL ALLEGATIONS
`
`Angie’s BOOMCHICKAPOP® Microwave Popcorn Products
`
`19. Microwave popcorn is a popular snack item enjoyed by millions of consumers.
`
`Since it was first introduced in the 1980s, it has made up a significant portion of the snack food
`
`market. As the COVID-19 pandemic forced millions of Americans to spend more time at home,
`
`the microwave popcorn industry increased nearly 15% percent, making it a $1.0 billion dollar
`
`category of the snack food industry.7
`
`
`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).
`
`
`
`5
`
`

`

`Case: 1:22-cv-02421 Document #: 1 Filed: 05/06/22 Page 6 of 46 PageID #:6
`
`20.
`
`Popcorn is popular for a variety of reasons, but its relative healthfulness is chief
`
`among them. Popcorn is a whole-grain that is naturally low in fat and calories, sugar-free, and
`
`gluten-free, making it a good fit for a variety of diets and health-conscious lifestyles.8
`
`21.
`
`The Products at issue are microwave popcorn products sold under the Angie’s
`
`BOOMCHICKAPOP® brand name.
`
`22.
`
`23.
`
`Defendant Conagra Brand’s Inc. acquired Angie’s BOOMCHICKAPOP® in 2017.
`
`Prior to its acquisition, and continuing through the present, the Angie’s
`
`BOOMCHICKAPOP® brand has been recognized by consumers as a healthy and natural snack
`
`brand that is free from artificial ingredients. This perception is supported by the brand’s mission
`
`statement9:
`
`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.
`
`24.
`
`At the time of Conagra’s acquisition, Angie’s BOOMCHICKAPOP® was only
`
`available as a ready-to-eat bagged popcorn. In October 2018, Conagra introduced Angie’s
`
`BOOMCHICKAPOP® microwave popcorn.10
`
`25.
`
`The Products are sold in three flavors: Real Butter Popcorn, Sea Salt Popcorn and
`
`Lightly Sweet Kettle Corn.
`
`26.
`
`The Products are sold at mass market retailers and grocery stores throughout the
`
`United States, including Target, Walmart, Publix, Meijer’s, and Walgreens, as well as authorized
`
`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)
`
`
`
`6
`
`

`

`Case: 1:22-cv-02421 Document #: 1 Filed: 05/06/22 Page 7 of 46 PageID #:7
`
`27. Microwave popcorn, including the Products at issue in this case, is prepared by
`
`heating a specially designed bag that contains unpopped popcorn kernels and any additional
`
`additives, such as butter and salt. The bag is placed directly in the microwave where the heat from
`
`cooking pops the kernels, creating the finished popcorn product.
`
`28.
`
`Based on information and belief, all of the Products utilize a substantially similar,
`
`if not identical, microwave popping bag.
`
`Defendant’s False and Deceptive Advertising
`
`29.
`
`Conagra uniformly represents the Products as a food that is made with “real, simple
`
`ingredients,” “nothing fake,” and “ingredients sourced from nature” (collectively, “Real and
`
`Naturally-Sourced Ingredient Representations”).
`
`30.
`
`The Real and Naturally-Sourced Ingredient Representations appear prominently on
`
`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
`
`
`
`7
`
`

`

`Case: 1:22-cv-02421 Document #: 1 Filed: 05/06/22 Page 8 of 46 PageID #:8
`Case: 1:22-cv-02421 Document#: 1 Filed: 05/06/22 Page8 of 46 PagelD #:8
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`8
`
`

`

`Case: 1:22-cv-02421 Document #: 1 Filed: 05/06/22 Page 9 of 46 PageID #:9
`
`31.
`
`The Real and Naturally-Sourced Ingredient Representations also appear on the
`
`Products’ individual microwave bags13:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`13 https://www.abillion.com/reviews/60ef9557a567a40099a89758
`
`
`
`9
`
`
`
`

`

`Case: 1:22-cv-02421 Document #: 1 Filed: 05/06/22 Page 10 of 46 PageID #:10
`
`32.
`
`The Real and Naturally-Sourced Ingredient Representations are central to
`
`Conagra’s marketing and sale of its Products and are strategically employed to convince
`
`consumers that the Products are free of unnatural or artificial ingredients, including toxic human-
`
`made ingredients.
`
`33.
`
`Conagra corroborates its label statements on its website by featuring images of the
`
`boxes with the Real and Naturally-Sourced Ingredient Representations, describing the Products as
`
`made with “just the good stuff” and “nothing fake”14:
`
`
`
`34.
`
`Conagra also promotes its PFAS Popcorn on its social media accounts by posting
`
`images of the Products’ boxes and which contain the Real and Naturally-Sourced Ingredient
`
`Representations, along with additional representations about the Products’ ingredients15:
`
`
`
`
`
`
`
`
`14 https://www.boomchickapop.com (Last accessed April 20, 2022).
`
`15 https://www.instagram.com/p/BpPektVBz9A (Last accessed April 16, 2022).
`
`
`
`10
`
`

`

`Case: 1:22-cv-02421 Document #: 1 Filed: 05/06/22 Page 11 of 46 PageID #:11
`Case: 1:22-cv-02421 Document#: 1 Filed: 05/06/22 Page 11 of 46 PagelD #:11
`
`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)
`
`9AV
`
`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.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`11
`11
`
`

`

`Case: 1:22-cv-02421 Document #: 1 Filed: 05/06/22 Page 12 of 46 PageID #:12
`
`
`
`
`
`35.
`
`Further, Conagra is intentional in its design of the Real and Naturally-Sourced
`
`Ingredient Representations. Conagra admits that it purposefully designs its product labeling as
`
`“simple enhancements” designed to entice health-conscious consumers by helping them “make
`
`better-informed food choices to improve their diet and health.”16
`
`36.
`
`Conagra’s focus on its “real” and “simple” labeling carries through all aspects of
`
`its marketing. Conagra uses “SmartLabel” – an online resource that provides consumers with
`
`detailed information on products’ ingredients and other attributes.17
`
`37.
`
`For example, the Real Butter flavor is described as being made with just a few
`
`ingredients18:
`
`
`
`
`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).
`
`
`
`12
`
`

`

`Case: 1:22-cv-02421 Document #: 1 Filed: 05/06/22 Page 13 of 46 PageID #:13
`
`38.
`
`Conagra also spotlights its “free from” product attributes on the Products’ boxes
`
`and its online marketing of the Products, in an effort to bolster its Natural Ingredient Claims19:
`
`
`
`
`
`
`
`39.
`
`Conagra is well aware that the future success of its business is dependent on its
`
`ability to meet consumer demand for food products that exclude ingredients which are known or
`
`suspected to be harmful to human health. In assessing potential risks to its sales and profits,
`
`Conagra has acknowledged that “[h]ealth care issues facing the United States and health-
`
`conscious consumer expectations have put increasing pressure on the food industry to constantly
`
`
`19 https://www.boomchickapop.com/about-us (Last accessed April 21, 2022).
`
`
`
`13
`
`

`

`Case: 1:22-cv-02421 Document #: 1 Filed: 05/06/22 Page 14 of 46 PageID #:14
`
`evaluate the nutritional profiles of its products. If our products fail to keep up with health trends
`
`and consumer expectations, our business performance may be negatively impacted.”20
`
`40.
`
`Conagra is also aware that its business could be affected by consumer concerns or
`
`perceptions regarding the health effects of certain product ingredients.21 Accordingly, Conagra’s
`
`brand portfolio—and more importantly, its marketing of those brands—has evolved to satisfy
`
`changing food preferences, such as demand for products that eliminate unnatural, human-made, or
`
`toxic chemicals.
`
`41.
`
`Conagra’s acquisition of Angie’s BOOMCHICKAPOP® was part of this
`
`evolution. In an October 2018 press release, Conagra stated: “We see great potential for Angie's
`
`BOOMCHICKAPOP to continue growing as we focus on bringing the attributes consumers look
`
`to the brand for – flavorful snacks made with real, simple ingredients – into new products and
`
`categories. With Angie's BOOMCHICKAPOP Microwave Popcorn, we saw an opportunity to
`
`create a new experience for our fans: enjoying a hot, freshly popped bowl of our flavorful popcorn
`
`while feeling good about what they’re eating.”22 (emphasis added)
`
`42.
`
`To further distinguish itself from its competitors in its effort to appeal to health-
`
`conscious consumers, and to garner the trust of those consumers, Conagra has also engaged in a
`
`public relations campaign in which it represents itself as being transparent about the ingredients in
`
`its products:
`
`
`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
`
`
`
`14
`
`

`

`Case: 1:22-cv-02421 Document #: 1 Filed: 05/06/22 Page 15 of 46 PageID #:15
`
`
`
`
`
`Image 2.23
`
`43.
`
`Conagra claims to “take food safety seriously every step of the way—from
`
`sourcing safe ingredients, to implementing appropriate shipping and storage, to packaging our
`
`food with clear and safe directions for microwave preparation.” 24
`
`44.
`
`Conagra further represents that “[t]hrough nutrition panels, ingredient statements
`
`and responsible marketing, we maintain open, honest communication with our stakeholders.”25
`
`PFAS Chemicals and Associated Risks
`
`45.
`
`PFAS are a category of highly persistent and potentially harmful human-made
`
`chemicals.26
`
`46.
`
`PFAS are not naturally occurring.27 They were first developed by scientists in the
`
`1940s.28 Thus, they are indisputably “unnatural” and not “real” or “simple.”
`
`47.
`
`The human-made PFAS chemicals, which are in the PFAS Popcorn, are sometimes
`
`called “forever chemicals” because they bioaccumulate, or build up in the body over time.
`
`
`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/
`
`
`
`15
`
`

`

`Case: 1:22-cv-02421 Document #: 1 Filed: 05/06/22 Page 16 of 46 PageID #:16
`
`48.
`
`Diet is considered a major route of PFAS exposure for humans, and reasonable
`
`consumers purchasing products represented as containing ingredients that are “real,” “simple,”
`
`“sourced from nature” and “nothing fake” would not expect those products to contain harmful
`
`human-made chemicals, such as PFAS.29
`
`49.
`
`PFAS chemicals have been associated with a variety of negative health effects for
`
`humans and the environment. The health risks associated with PFAS include, but are not limited
`
`to, decreased male and female fertility, negative developmental effects or delays in children,
`
`increased risk of cancers, liver damage, asthma and thyroid disease, adverse impacts on the
`
`immune system, interference with hormones and increased cholesterol levels.30
`
`50.
`
`According to the Environmental Protection Agency, limiting exposure to PFAS can
`
`help protect individual health. “Because certain PFAS are known to cause risks to human health,
`
`the most important steps you and your family can take to protect your health is to understand how
`
`to limit your exposure to PFAS by taking [steps to] reduce possible exposure during daily
`
`activities.”31
`
`51.
`
`Because PFAS accumulates in body tissues over time, the most obvious way to
`
`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
`
`
`
`16
`
`

`

`Case: 1:22-cv-02421 Document #: 1 Filed: 05/06/22 Page 17 of 46 PageID #:17
`
`52.
`
`Conagra is well aware of this, which is exactly why it has engaged in an aggressive,
`
`uniform marketing campaign intended to convince consumers that the Products are real and
`
`sourced from nature sourced
`
`53.
`
`Conagra has engaged in this uniform marketing campaign in an effort to convince
`
`reasonable consumers to believe that the Products are superior to other products that are not real
`
`or sourced from nature.
`
`54.
`
`Reasonable consumers purchasing the Products would believe, based on Conagra’s
`
`real and sourced from nature representations, that the Products do not contain unnatural or human-
`
`made chemicals that could adversely impact their health.
`
`PFAS Use in Microwave Popcorn Bags
`
`55.
`
`Food contact materials, such as wrappers and packaging, are often treated with
`
`PFAS to increase water and grease resistance and enhance the material’s non-stick properties.33
`
`PFAS can also help ingredients from leaking out of their packaging.34
`
`56.
`
`The use of PFAS chemicals in food contact materials is concerning because studies
`
`have confirmed that PFAS migrates to food, where it is then ingested by consumers. 35
`
`57.
`
`Compared with other types of materials that come into contact with food,
`
`microwave popcorn bags have among the highest concentrations of PFAS chemical migration. 36
`
`
`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