Case: 1:22-cv-04243 Document #: 1 Filed: 08/11/22 Page 1 of 30 PageID #:1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`
`
`
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`Plaintiff,
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`WILLIAM MIGNIN, III, INDIVIDUALLY AND ON
`BEHALF OF ALL OTHERS SIMILARLY SITUATED,
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`
`
`v.
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`MARS, INC.,
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`
`
`Defendant.
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`Case No.:
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`Judge:
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`JURY TRIAL DEMANDED
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`CLASS ACTION COMPLAINT
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`Plaintiff William Mignin, III (“Plaintiff” or “Mr. Mignin”) brings this action on behalf of
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`himself, and all others similarly situated against Mars, Inc. (“Defendant” or “Mars”). Plaintiff
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`makes the following allegations pursuant to the investigation of his counsel and based upon
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`information and belief, except as to the allegations specifically pertaining to himself, which are
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`based on personal knowledge.
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`NATURE OF THE ACTION
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`1.
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`Plaintiff brings this class action lawsuit on behalf of himself and similarly situated
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`consumers (“Class Members”) who purchased for personal, family, or household consumption,
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`Defendant’s candies sold under the brand name “Skittles®” (the “Products”),1 which are unfit for
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`human consumption because they contain titanium dioxide (“TiO2”), a known toxin. Defendant
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`has long known of the health problems posed by TiO2. In fact, in February 2016, Defendant
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`1 This includes Skittles® Original, Skittles® Wild Berry, Sour Skittles®, Tropical Skittles®, and Smoothies
`Skittles®, among others.
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`1
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`publicly committed to phasing out TiO2. Defendant has flouted its own promise to consumers.
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`More than six years later, Defendant continues to sell the Products with TiO2.
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`2.
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`Interestingly, in its February 2016 press release, Defendant indicated that its
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`planned phase out of TiO2 was called for simply because “consumers today are calling on food
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`manufacturers to use more natural ingredients in their products.” Incredibly, Defendant even
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`claimed that “[a]rtificial colors pose no known risks to human health or safety.” In doing so,
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`Defendant concealed from consumers material information it knew. Namely, that numerous of its
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`competitors and other food manufacturers had long removed the toxin from their product lines
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`because of scientific research showing that the toxin is unsafe for consumption.
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`3.
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`Several nations have banned the harmful toxin, TiO2. For example, in 2019, TiO2
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`was banned in France, where Defendant maintains offices and announced that it could and would
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`comply with France’s law requiring TiO2 no longer be allowed in food products.
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`4.
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`In May 2021, the European Food Safety Authority (“EFSA”) released its report on
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`the health concerns associated with TiO2, determining that TiO2 could not be considered safe for
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`consumption. Professor Maged Younes, Chair of EFSA’s expert Panel on Food Additives and
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`Flavourings (“FAF”) underscored these findings, stating that: “Taking into account all available
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`scientific studies and data, the Panel concluded that titanium dioxide can no longer be considered
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`safe as a food additive. A critical element in reaching this conclusion is that we could not exclude
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`genotoxicity concerns after consumption of titanium dioxide particles.”2
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`5.
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`Building on EFSA’s research, the European Commission (“EC”) announced that it
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`too would adopt a ban on the use of TiO2 as a food additive. Under that plan, the ban would apply
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`2 EFSA, “Titanium dioxide: E171 no longer considered safe when used as a food additive,” (May 6, 2021)
`https://www.efsa.europa.eu/en/news/titanium-dioxide-e171-no-longer-considered-safe-when-used-food-
`additive.
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`2
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`following a six-month transition period, and beginning summer 2022, the additive should no longer
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`be added to food products. That plan was adopted unanimously by Member States.
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`6.
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`Defendant – with offices in Netherland, Denmark, Ireland, Italy, Portugal,
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`Germany, Norway, Czech Republic, Romania, Belgium, Switzerland, Austria, Slovakia, Hungary,
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`France, Greece, and Spain3 - and with sales in each of those Member States was reminded of the
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`scientific findings concerning TiO2 and was required to comply with the EC’s ban.
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`7.
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`Nonetheless, in the United States, Defendant maintains sales with TiO2 as an
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`additive, failing to inform consumers of the implications of consuming the toxin. Instead,
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`Defendant relies on the ingredient list which is provided in minuscule print on the back of the
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`Products, the reading of which is made even more challenging by the lack of contrast in color
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`between the font and packaging, as set out below in a way consumers would normally view the
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`product in a store.
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`3 MARS, “Our Locations,” https://cze.mars.com/en/locations?language_content_entity=en.
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`3
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`8.
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`Consequently, consumers who purchase Defendant’s Products are at heightened
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`risk of a host of health effects for which they were unaware stemming from genotoxicity – the
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`ability of a chemical substance to change DNA.
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`9.
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`Based on Defendant’s omissions, a reasonable consumer would expect that the
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`Products can be safely purchased and consumed as marketed and sold. However, the Products are
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`not safe and pose a significant health risk to unsuspecting consumers. Yet, neither before nor at
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`the time of purchase does Defendant notify consumers like Plaintiff that the Products are unsafe
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`to consumers, contain heightened levels of titanium dioxide, and should otherwise be approached
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`with caution.
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`10.
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`Accordingly, Plaintiff brings his claims against Defendant individually and on
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`behalf of a class of all others similarly situated for (1) violation of the Uniform Deceptive Trade
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`Practices Act, 815 ILCS 510, et seq.; (2) violation of the Consumer Fraud and Deceptive Business
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`Practices Act, 815 ILCS 505, et seq.; (3) Fraud; (4) Fraudulent Inducement; (5) Fraudulent
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`Omission or Concealment; (6) Quasi-Contract/Unjust Enrichment; and (7) Breaches of Express
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`Warranty, Implied Warranty of Merchantability/Fitness for a Particular Purpose and Magnuson
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`Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
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`PARTIES
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`11.
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`Plaintiff William Mignin, III is a natural person and citizen of Illinois who resides
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`in Batavia, Illinois. Mr. Mignin regularly purchases Defendant’s Products. Mr. Mignin’s most
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`recent purchase of the Products was on or around July 21, 2022, when he purchased Sour Skittles®
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`from a brick-and-mortar 7-Eleven located at 336 E. Wilson Street, Batavia, Illinois. Prior to his
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`purchase, Mr. Mignin reviewed the labeling, packaging, and marketing materials of the Products
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`and saw the false and misleading claims that, among other things, the Products are safe for human
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`4
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`consumption. Mr. Mignin understood these claims to be representations and warranties by Mars,
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`Inc., that the Products are free from all traces of harmful ingredients. Mr. Mignin reasonably relied
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`on these representations and warranties in deciding to purchase the Products, and these
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`representations were part of the basis of the bargain in that he would not have purchased the
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`Products or would not have purchased them on the same terms if the true facts about its contents
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`had been known. As a direct result of Mars, Inc.’s material misrepresentations and omissions, Mr.
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`Mignin suffered, and continues to suffer, economic injuries.
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`12. Mr. Mignin remains interested in purchasing candies from Defendant that are safe
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`for consumption. However, Plaintiff is unable to determine if the Products are actually safe for
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`consumption. Plaintiff understands that the composition of the Products may change over time.
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`But as long as Defendant may market the Products as safe for consumption when the Products are
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`not safe for consumption, then when presented with false or misleading information when
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`shopping, he will be unable to make informed decisions about whether to purchase Defendant’s
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`Products and will be unable to evaluate the different prices between Defendant’s Products and
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`competitor’s Products. Plaintiff is further likely to repeatedly be misled by Defendant’s conduct,
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`unless and until Defendant is compelled to ensure that Products marketed and labeled as safe for
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`consumption are, in fact, safe for consumption.
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`13.
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`Defendant Mars, Inc. is a foreign corporation with its domestic headquarters located
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`at 9885 Elm Street, McLean, Virginia 22101. Defendant Mars, Inc. operates four business
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`segments: Mars Wrigley Confectionary, Petcare, Food, and MARS Edge.4 The business segment
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`relevant to Plaintiff’s claims herein, is Mars Wrigley Confectionary (“Mars Wrigley”), which
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`manufactures, packages, and distributes its candy products. In 2016, Mars Chocolate and Wrigley
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`4 https://web.archive.org/web/20130326103541/http://www.mars.com/global/brands.aspx
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`5
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`were merged to create a new subsidiary of the company – Mars Wrigley.5 Relevant to Plaintiff’s
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`claims herein, Mars is a leading manufacturer, packager, and distributor of, among other products,
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`candy and confectionery. Mars Wrigley maintains its global headquarters in Chicago, Illinois, and
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`its US headquarters in New Jersey.6
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`14. Mars has done business throughout Illinois and the United States at all times during
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`the Class Period. At all relevant times, Mars, Inc., has advertised, marketed, manufactured,
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`distributed, and/or sold candy and confectionery, including the Products at issue, to consumers in
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`and throughout Illinois and the United States. At all relevant times, Mars, Inc. formulated, directed,
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`controlled, had the authority to control, and/or participated in the acts and practices set forth in this
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`Complaint.
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`15.
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`Plaintiff reserves the right to amend this Complaint and add different products and
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`additional defendants, including without limitation any officer, director, employee, supplier, or
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`distributor of Defendant who has knowingly and willfully aided, abetted, and/or conspired in the
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`false and deceptive conduct alleged herein.
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`JURISDICTION AND VENUE
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`16.
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`Jurisdiction is proper in this Court because Plaintiff is a citizen of Illinois and
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`Defendant purposefully availed itself of the laws, protections, and advantages of Illinois by
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`conducting business in this State, maintaining its global headquarters in this State, and by
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`conducting business within every County in this State, with consumers like Plaintiff.
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`17.
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`Venue is proper in this Court pursuant to 735 ILCS 5/2-101 because the transactions
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`or some part thereof out of which this cause of action arose occurred in this County.
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`5 https://www.mars.com/news-and-stories/press-releases/hackettstown-us-base
`6 Id.
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`6
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`FACTUAL ALLEGATIONS
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`Mars’ Candy Skittles®
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`Skittles® candy is manufactured, marketed, and sold by Mars Wrigley. The candy
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`A.
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`18.
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`is well-known by its colorful array, which Mars has dubbed “the rainbow” for marketing purposes
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`to great success. For example, Skittles® was “America’s favorite non-chocolate chewy candy in
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`2017, with sales in excess of $185 million U.S. dollars.”7
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`19.
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`20.
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`21.
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`The color of Defendant’s rainbow, however, is due to its use of TiO2.
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`Significantly, Defendant need not rely on the use of TiO2 to achieve this result.
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`Numerous of Defendant’s competitors do not use TiO2 in their products and yet
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`are able to maintain the colorful impression Defendant hopes to achieve with its Products.
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`22.
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`For example, Swedish Fish Soft & Chewy Candy does not rely on TiO2 and yet
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`achieves a bright red color.
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`23.
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`Likewise, Black Forest Gummy Bears does not rely on TiO2 and still strikes an
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`assortment of colors, including orange, red, yellow, and green.
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`24.
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`Similarly, Sour Patch Kids does not make use of TiO2 and accomplishes vivid
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`colors like lime green, yellow, orange, and redberry.
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`25.
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`Nerds also achieves bright colors including blue, green, red, and orange without the
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`use of TiO2.
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`26.
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`Indeed, even Defendant has colorful confectionary goods such as its M&Ms
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`product line that does not rely on TiO2.
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`7 Nils-Gerrit Wunsch, Sales of Leading Non-Chocolate Chewy Candy Brands of the United States in 2017,
`STATISTA (Nov. 25, 2020) https://www.statista.com/statistics/190409/top-non-chocolate-chewy-candy-
`brands-in-the-united-states/ (last visited July 21, 2022).
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`7
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`B.
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`26.
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`Titanium Dioxide is Harmful to Human Health
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`In February 2016, Defendant alerted the public of its intention to remove TiO2 from
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`its confectionary products.
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`27.
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`Following that announcement, Jaydee Hanson, Senior Policy Analyst at the Center
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`for Food Safety, stated that “We are pleased to see that MARS has taken a positive step toward
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`eliminating toxic, unnecessary nanomaterials from its line of food products. We urge the company
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`to speed up the removal of these additives, especially given the grave health concerns associated
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`with titanium dioxide and other nanoparticles.”
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`28. Mr. Hanson further stated that “Studies have shown that the human health risks
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`associated with ingesting nanoparticles of many common food additives far outweigh any utility
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`for producers. There are plenty of non-toxic alternatives available and we urge MARS and others
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`to commit to not using any engineered nanomaterials in human and animal food products.”
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`29.
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`Defendant’s public statements built on efforts by other large food companies to
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`remove TiO2 from their products. In March 2015, for example, Dunkin Donuts announced that it
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`would no longer use TiO2.
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`30.
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`The reason for eliminating titanium dioxide is simple: TiO2 – which is used in
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`paints, coatings, adhesives, plastics, printing inks, and roofing materials – has demonstrated an
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`ability to pass through biological membranes, circulate through the body, and enter cells. Research
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`shows that the effects are serious, including DNA and chromosomal damage, organ damage,
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`inflammation, brain damage, genital malformations, lesions in the liver and kidneys, and cell
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`neurosis.
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`31.
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`Titanium dioxide also builds up in the body’s intestinal tract. Ordinarily, the
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`intestinal tract serves to absorb nutrients for the body. However, titanium dioxide cannot be
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`absorbed. When this occurs, the body’s M-Cells absorb these particles and bring them to the innate
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`immune system. Over time, the titanium dioxide particles are incorporated by the innate immune
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`system cells where they will remain without being degraded or dissolved.
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`32.
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`In 2019, the French government responded to these troubling findings by banning
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`all foods containing titanium dioxide. This ban took effect in January 2020.
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`33.
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`At that time, one of Defendant’s subsidiaries, Mars Wrigley Confectionary France,
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`confirmed that it could and would comply with the law.
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`34.
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`Later that year, in October 2020, the European Parliament removed titanium
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`dioxide from the list of food additives authorized by the European Union for human consumption.
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`European researchers studying titanium dioxide noted that the long half-lives of titanium dioxide
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`nanoparticles created the potential for the particles to accumulate inside human organs and tissue.
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`European researchers also determined that titanium dioxide nanoparticles could cause DNA
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`strands to break, leading to chromosomal damage.
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`C.
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`35.
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`Defendant’s Omissions Concerning TiO2 is Actionable
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`Despite its February 2016 commitment to U.S. consumers and its apparent
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`compliance with the laws of the European Commission, Defendant has endangered U.S.
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`consumers, exposing them to TiO2, which Defendant knows carries significant health concerns. It
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`also failed to tell consumers that contrary to its earlier representations, it did not remove TiO2.
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`36.
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`As a result, Plaintiff and the Class were injured by the full purchase price of the
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`Products because the Products are worthless, as they are marketed as safe for human consumption
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`when they are not in fact safe for human consumption.
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`37.
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`Plaintiff and Class Members bargained for products that are safe for human
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`consumption and were deprived of the basis of their bargain when Defendant sold them Products
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`containing dangerous substances with serious health consequences.
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`38.
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`No reasonable consumer would expect that the Products marketed as safe for
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`human consumption would pose a risk to their health, safety, and well-being, or that it would
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`contain TiO2, which is linked to harmful health effects in humans. Accordingly, Plaintiff and Class
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`Members suffered economic injuries as a result of purchasing the Products.
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`39.
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`As the Products expose consumers to a substance that poses a risk to consumers’
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`health, the Products are not fit for human consumption. Plaintiff and the Class are further entitled
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`to damages for the injury sustained in being exposed to TiO2, damages related to Defendant’s
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`conduct, and injunctive relief.
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`40. Moreover, because these facts relate to a critical safety-related deficiency in the
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`Products, Defendant was under a continuous duty to disclose to Plaintiff and Class Members the
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`true standard, quality, and grade of the Products and to disclose that the Products contained
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`substances known to have adverse health effects. Nonetheless, Defendant concealed and
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`misrepresented this information, as discussed herein.
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`41.
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`Although Defendant is in the best position to know what content it placed on its
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`packaging during the relevant timeframe, and the knowledge that Defendant had regarding the
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`presence of TiO2, and its failure to warn consumers that the Products contained TiO2, to the extent
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`necessary, Plaintiff alleges the following facts with particularity:
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`42. WHO: Defendant made material omissions of fact about the Products through its
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`labeling, which shows that the Products are safe for human consumption. These representations
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`constitute omitted material information regarding harmful chemicals.
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`43. WHAT: Defendant’s conduct here was, and continues to be, fraudulent because it
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`omitted and concealed that the Products contain a substance – TiO2 – that is widely known to have
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`significant health repercussions, has been completely banned for purposes of human consumption
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`in other countries and is not fit for human consumption. Thus, Defendant’s conduct deceived
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`Plaintiff and Class Members into believing that the Products are safe for human consumption when
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`they are not and fail to disclose the amount of TiO2 in the Products. Defendant knew or should
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`have known that this information is material to reasonable consumers, including Plaintiff and Class
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`Members in making their purchasing decisions, yet they continued to pervasively market the
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`Products in this manner in the U.S. market.
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`44. WHEN: Defendant made material omissions during the putative class periods,
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`including prior to and at the time Plaintiff and Class Members purchased the Products, despite its
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`knowledge that the Products’ contained TiO2, a harmful substance with known adverse health
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`effects.
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`45. WHERE: Defendant’s marketing message was uniform and pervasive, carried
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`through material omissions on the labeling of the Products’ packaging, website, and through
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`marketing materials.
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`46. HOW: Defendant made material omissions of fact regarding the Products,
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`including, but not limited to the amount of TiO2 in the products, that TiO2 is not safe for human
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`consumption, and other material omissions related to TiO2 in the Products.
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`47. WHY: Defendant made the material omissions detailed herein for the express
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`purpose of inducing Plaintiff, Class Members, and all reasonable consumers to purchase and/or
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`pay for the Products, the effect of which was that Defendant profited by selling the Products to
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`hundreds of thousands of consumers.
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`48.
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`INJURY: Plaintiff and Class Members purchased, paid a premium (up to the full
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`price), or otherwise paid more for the Products than they otherwise would have absent Defendant’s
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`omissions.
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`CLASS ALLEGATIONS
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`49.
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`Class Definition. Plaintiff brings this action on behalf of a class of similarly
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`situated individuals, defined as all persons in the United States who, within the applicable statute
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`of limitations period, up to and including the date of final judgment in this action, purchased any
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`of Defendant’s Products at issue (the “Class”).
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`50.
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`Illinois Subclass. Plaintiff also seeks to represent a subclass of all Class Members
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`who within the applicable statue of limitations period, up to and including the date of final
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`judgment in this action, purchased any of the Products at issue in Illinois (the “Illinois Subclass”).
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`51.
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`Excluded from the Class and Illinois Subclass are persons who made such purchase
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`for purpose of resale, Defendant and any entities in which Defendant has a controlling interest,
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`Defendant’s agents and employees, the Judge to whom this action is assigned, and members of the
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`Judge’s staff, and the Judge’s immediate family.
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`52.
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`Plaintiff reserves the right to amend the definition of the Class and Illinois Subclass
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`if discovery or further investigation reveals that the Class or Illinois Subclass should be expanded
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`or otherwise modified.
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`53.
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`Numerosity. Members of the Class and Illinois Subclass are so numerous that their
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`individual joinder herein is impractical. On information and belief, members of the Class and
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`Illinois Subclass number in the millions. The precise number of the Class Members and their
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`identities are unknown to Plaintiff at this time but may be determined through discovery. Class
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`12
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`Members may be notified of the pendency of this action by mail and/or publications through the
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`distribution records of Defendant and third-party retailers and vendors.
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`54.
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`Commonality and Predominance. Common questions of law and fact exist as to
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`all Class Members and predominate over questions affecting only individual Class Members.
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`Common legal and factual questions include but are not limited to: whether Defendant warranted
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`the Products as “Safe for Human Consumption”; whether the Products contain Titanium Dioxide;
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`whether Defendant breached these warranties; and whether Defendant committed the statutory and
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`common law violations alleged against them herein by doing so.
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`55.
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`Typicality. The claims of the named Plaintiff are typical of the claims of the Class
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`in that Plaintiff purchased one of Defendant’s Products in reliance on the presentations and
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`warranties described above and suffered a loss as a result of that purchase.
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`56.
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`Adequacy. Plaintiff is an adequate representative of the Class and Illinois Subclass
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`because his interest does not conflict with the interests of the Class and Illinois Subclass Members
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`he seeks to represent, he has retained competent counsel experienced in prosecuting class actions,
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`and they intend to prosecute this action vigorously. The interests of the Class and Illinois Subclass
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`members will be fairly and adequately protected by Plaintiff and his counsel.
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`57.
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`Superiority. The class mechanism is superior to other available means for the fair
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`and efficient adjudication of the claims of Class Members. Each individual Class Member may
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`lack the resources to undergo the burden and expense of individual prosecution of the complex
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`and extensive litigation necessary to establish Defendant’s liability. Individualized litigation
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`increases the delay and expense of all parties and multiplies the burden on the judicial system
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`presented by the complex legal and factual issues of the case. Individualized litigation also presents
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`a potential for inconsistent or contradictory judgments. In contrast, the class action device presents
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`far fewer management difficulties and provides the benefits of single adjudication, economy of
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`scale, and comprehensive supervision by a single court on the issue of Defendant’s liability. Class
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`treatment of the liability issue will ensure that all claims and claimants are before this Court for
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`consistent adjudication of liability issues.
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`58.
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`Defendant has acted or failed to act on grounds generally applicable to the Class,
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`thereby making appropriate final injunctive relief with respect to the Class and Illinois Subclass as
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`a whole.
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`59. Without a class action, Defendant will continue a course of action that will result
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`in further damages to Plaintiff and members of the Class and Illinois Subclass and will likely retain
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`the benefits of its wrongdoing.
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`60.
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`Based on the foregoing allegations, Plaintiff’s claims for relief include those set
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`forth below.
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`61.
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`62.
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`COUNT I
`Violation of Illinois’s Uniform Deceptive Trade Practices Act,
`815 ILCS 510, et seq.
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`Plaintiff realleges and reincorporates by reference all paragraphs alleged above.
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`Plaintiff brings this claim individually and on behalf of the Class and Illinois
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`Subclass against Defendant.
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`63.
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`The Illinois Uniform Deceptive Trade Practices Act 815 ILCS 510 provides, in part,
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`that:
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`
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` “A person engages in a deceptive trade practice when, in the course
`of his or her business, vocation, or occupation, the person:
`(1) passes off goods or services as those of another;
`(2) causes likelihood of confusion or of misunderstanding as to the
`source, sponsorship, approval, or certification of goods or services;
`(3) causes likelihood of confusion or of misunderstanding as to
`affiliation, connection, or association with or certification by
`another;
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`(4) uses deceptive representations or designations of geographic
`origin in connection with goods or services;
`(5) represents that goods or services have sponsorship, approval,
`characteristics, ingredients, uses, benefits, or quantities that they do
`not have or that a person has a sponsorship, approval, status,
`affiliation, or connection that he or she does not have;
`(6) represents that goods are original or new if they are deteriorated,
`altered, reconditioned, reclaimed, used, or secondhand;
`(7) represents that goods or services are of a particular standard,
`quality, or grade or that goods are a particular style or model, if they
`are of another;
`(8) disparages the goods, services, or business of another by false or
`misleading representation of fact;
`(9) advertises goods or services with intent not to sell them as
`advertised;
`(10) advertises goods or services with intent not to supply
`reasonably expectable public demand, unless the advertisement
`discloses a limitation of quantity;
`(11) makes false or misleading statements of fact concerning the
`reasons for, existence of, or amounts of price reductions;
`(12) engages in any other conduct which similarly creates a
`likelihood of confusion or misunderstanding.”
`
`For the reasons discussed above, Defendant has engaged in practices that violate the Illinois
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`Uniform Deceptive Trade Practices Act 815 ILCS 510.
`
`64.
`
`By committing the acts and practices alleged herein, Defendant has violated
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`Illinois’s Uniform Deceptive Trade Practices Act 815 ILCS 510, as to the Class, by engaging in
`
`unlawful, fraudulent, and unfair conduct.
`
`65.
`
`As more fully described above, Defendant’s misleading marketing, advertising,
`
`packaging, and labeling of the Products is likely to deceive reasonable consumers. In addition,
`
`Defendant has committed unlawful business practices by, inter alia, making the omissions of
`
`material facts, as set forth more fully herein, and violating the common law.
`
`66.
`
`Plaintiff and the Class Members reserve the right to allege other violations of law
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`which constitute other unlawful business acts or practices.
`
`
`
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`67.
`
`Defendant’s acts, omissions, misrepresentations, practices and non-disclosures as
`
`alleged herein also constitute unlawful business acts and practices within the meaning of the
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`Illinois Uniform Deceptive Trade Practices Act 815 ILCS 510 et seq. in that its conduct is
`
`substantially injurious to consumers, offends public policy, and is immoral, unethical, oppressive,
`
`and unscrupulous as the gravity of the conduct outweighs any alleged benefits attributable to such
`
`conduct.
`
`68.
`
`There were reasonably available alternatives to further Defendant’s legitimate
`
`business interests, other than the conduct described herein.
`
`69.
`
`Defendant’s claims, non-disclosures and misleading statements with respect to the
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`Products, as more fully set forth above, were false, misleading and/or likely to deceive or cause
`
`confusion for the consuming public within the meaning of the Illinois Uniform Deceptive Trade
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`Practices Act 815 ILCS 510 et seq.
`
`70.
`
`Plaintiff and the Class Members suffered a substantial injury by virtue of buying
`
`the Products that they would not have purchased absent Defendant’s unlawful, fraudulent, and
`
`unfair marketing, advertising, packaging, and omission about the defective nature of the Products.
`
`71.
`
`There is no benefit to consumers or competition from deceptively marketing and
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`omitting material facts about the true nature of the Products.
`
`72.
`
`Plaintiff and the Class Members had no way of reasonably knowing that the
`
`Products they purchased were not as marketed, advertised, packaged, or labeled. Thus, they could
`
`not have reasonably avoided the injury each of them suffered.
`
`73.
`
`The gravity of the consequences of Defendant’s conduct as described outweighs
`
`any justification, motive, or reason therefore, particularly considering the available legal
`
`
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`Case: 1:22-cv-04243 Document #: 1 Filed: 08/11/22 Page 17 of 30 PageID #:17
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`alternatives which exist in the marketplace, and such conduct is immoral, unethical, unscrupulous,
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`offends established public policy, or is substantially injurious to Plaintiff and the Class Members.
`
`74.
`
`Pursuant to the Illinois Uniform Deceptive Trade Practices Act 815 ILCS 510 et
`
`seq., Plaintiff and the Class and Illinois Subclass seek an order of this Court that includes, but is
`
`not limited to, an order providing (a) injunctive relief; (b) costs of Plaintiff’s and Class and Illinois
`
`Subclass Members’ attorneys’ fees and costs; and (c) any other further relief the Court deems
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`reasonable and equitable.
`
`75.
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`Here, equitable relief is appropriate because Plaintiff may lack an adequate remedy
`
`at law if, for instance, damages resulting from his purchase of the Products is determined to be an
`
`amount less than the premium price of the Products. Without compensation for the full premium
`
`price of the Products, Plaintiff would be left without the parity in purchasing power to which he is
`
`entitled.
`
`76.
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`Injunctive relief is also appropriate, and indeed necessary, to require Defendant to
`
`provide full and accurate disclosures regarding the Products so that Plaintiff and Class and Illinois
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`Subclass Members can reasonably rely on Defendant’s representations as well of those of
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`Defendant’s competitors who may then have an incentive to follow Defendant’s deceptive
`
`practices, further misleading consumers.
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`77.
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`Restitution and/or injunctive relief may also be more certain, prompt, and efficient
`
`than other legal remedies requested herein. The return of the full premium price, and an injunction
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`requiring either (1) adequate disclosure of TiO2 in the Products and its effects; or (2) the removal
`
`of such chemicals from the Products packaging, will ensure that Plaintiff is in the same place he
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`would have been in had Defendant’s wrongful conduct not occu