Case: 3:22-cv-50091 Document #: 1 Filed: 03/26/22 Page 1 of 22 PageID #:1
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
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`WESTERN DIVISION
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`Laura Harmon, individually and on behalf of
`all others similarly situated,
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`3:22-cv-50091
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`Plaintiff,
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`
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`- against -
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`Class Action Complaint
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`Pharmavite LLC,
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`
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`Defendant
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`Jury Trial Demanded
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`Plaintiff alleges upon information and belief, except for allegations pertaining to Plaintiff,
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`which are based on personal knowledge:
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`1.
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`Pharmavite LLC (“Defendant”) manufactures, labels, markets, and sells fruit
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`flavored gummy vitamins under the Nature Made brand (“Product”).
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`2.
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`The relevant representations include “Orange, Cherry & Mixed Berry With Other
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`Natural Flavors,” “No Artificial Flavors – Natural Fruit Flavors” and images of an orange,
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`raspberry, cherry and strawberry.
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`3.
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`The representations cause consumers to expect only natural fruit flavors.
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`4. However, the representations are false, deceptive, and misleading because the
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`Product contains artificial flavoring ingredients.
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`I.
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`CONSUMER DEMAND FOR NATURAL FLAVORS
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`5.
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`Consumers have been increasingly concerned about the ingredients added to what
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`they eat and drink.
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`6.
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`This is especially so when it comes to vitamins because this is a unique class of food
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`designed to improve well-being and health.
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`7.
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`8.
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`Consumers value fruit and natural fruit flavors, especially in the context of vitamins.
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`Surveys have shown that consumers are less likely to buy vitamins which have
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`artificial ingredients.
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`9. According to the Wall Street Journal, “As consumer concern rises over artificial
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`ingredients, more food companies are reconstructing recipes” to remove artificial flavors.1
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`10. According to Paul Manning, chief executive officer and president of Sensient
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`Technologies, “Consumer desire for naturally flavored products is an emerging trend.”2
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`11. According to Consumers Union, over 80% of consumers expect that the word
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`“natural,” in almost any context, and its variations, i.e., “nature,” on a label means that a food,
`
`
`1 Lauren Manning, How Big Food Is Using Natural Flavors to Win Consumer Favor, Wall Street
`Journal.
`2 Keith Nunes, Using natural ingredients to create authentic, fresh flavors, Food Business News,
`Sept. 20, 2018.
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`2
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`Case: 3:22-cv-50091 Document #: 1 Filed: 03/26/22 Page 3 of 22 PageID #:3
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`beverage, vitamin or dietary supplement does not contain artificial ingredients.3
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`12. Explanations for why consumers prefer foods containing natural, instead of artificial
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`ingredients, are varied.
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`13. A recent survey reported that over 82% of US respondents believe that foods with
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`artificial flavors are less healthy than those promoted as containing natural flavors and/or not
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`containing artificial flavors.
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`14. Consumers seek to avoid artificial flavors because they are weary of ingredients
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`which are highly processed with chemical additives and synthetic solvents in laboratories.
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`15. According to Nielsen, the absence of artificial flavors is very important for over 40%
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`of respondents to their Global Health & Wellness Survey.
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`16. One scholar theorized “the preference for natural products appeals to a moral
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`ideology and offers a moral satisfaction.”4
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`17. The trade journal, Perfumer & Flavorist, described “The Future of Artificial Flavors
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`& Ingredients” as bleak, given consumer opposition to these synthetic ingredients.5
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`18. Mintel announced that consumer avoidance of artificial flavors is just as strong as
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`their desire for natural flavors, in its Report, “Artificial: Public Enemy No. 1.”6
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`19. About half of Americans say they seek out natural flavors at least some of the time.
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`3 “Food” shall refer to food, beverages, vitamins and dietary supplements.
`4 Rozin, P., Spranca, M., Krieger, Z., Neuhaus, R., Surillo, D., Swerdlin, A., & Wood, K. (2004).
`Preference for natural: Instrumental and ideational/moral motivations, and the contrast between
`foods and medicines. Appetite, 43(2), 147–154. doi:10.1016/j.appet.2004.03.005.
`5 Jim Kavanaugh, The Future of Artificial Flavors & Ingredients, Perfumer & Flavorist, June 12,
`2017.
`6 Alex Smolokoff, Natural color and flavor trends in food and beverage, Natural Products Insider,
`Oct. 11, 2019; Thea Bourianne, Exploring today’s top ingredient trends and how they fit into our
`health-conscious world, March 26-28, 2018; Nancy Gagliardi, Consumers Want Healthy Foods –
`And Will Pay More For Them, Forbes, Feb 18, 2015.
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`20.
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`In contrast, artificial flavors were sought out by only about one in 10 consumers,
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`with approximately half saying they avoid each of them at least some of the time.
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`21. Nielsen reported that 62% of consumers try to avoid artificial flavors.
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`22. New Hope Network concluded that 71% of consumers avoid artificial flavors.
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`23. Label Insight determined that 76% of consumers avoid artificial flavors.
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`24. A recent survey shows more than three in four people worldwide are convinced that
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`artificial flavors have no place on their ingredient lists.7
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`25. According to Forbes, 88% of consumers consider foods without artificial flavors to
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`be more natural and healthier than foods with artificial flavors and would pay more for such foods.
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`II. PRODUCT REPRESENTED AS ONLY CONTAINING NATURAL FLAVORS
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`26. Defendant markets the Product with the prominent statement, “No Artificial Flavors
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`– Natural Fruit Flavors.”
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`27. The representation that the Product has “No Artificial Flavors” appeals to the more
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`than seven out of ten consumers who avoid artificial flavors.
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`28. This conveys to consumers that the Product will get its fruit taste from only natural
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`flavoring ingredients.
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`29. Though the ingredients listed include “Natural Flavors,” they also include “Malic
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`Acid.”
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`7 What ‘Natural’ Really Means to Consumers GNT Group’s Guide to Global Consumer Demands
`attests importance of natural colors for future-proof products, July 13, 2017.
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`Other Ingredients: Glucose Syrup,
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`Sugar, Water, Gelatin, Citric Acid,
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`Malic Acid, Palm Oil, Natural
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`Flavors, Colors Added (Including
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`Carmine), Carnauba Wax.
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`
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`30. The Product contains more malic acid than natural flavors, shown by its listing ahead
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`of natural flavors.
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`31. Unbeknownst to consumers, the ingredient list does not inform consumers that this
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`malic acid is an artificial flavoring ingredient which provides flavoring to the Product.
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`32.
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`Instead of listing DL-Malic Acid, Defendant lists “Malic Acid,” in violation of
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`regulations that ingredients must be listed by their specific, and not general name.
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`III. MALIC ACID
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`33. A flavor is a substance the function of which is to impart taste. See 21 C.F.R. §
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`101.22(a)(1) and (3).
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`34. Taste is the combination of sensations arising from specialized receptor cells located
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`in the mouth.8
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`35. Taste can be defined as sensations of sweet, sour, salty, bitter, and umami.
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`36. However, limiting taste to five categories suggests that taste is simple, which is not
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`true.
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`37. For example, the taste of sour includes the sourness of vinegar (acetic acid), sour
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`milk (lactic acid), lemons (citric acid), apples (malic acid), and wines (tartaric acid).
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`8 Gary Reineccius, Flavor Chemistry and Technology § 1.2 (2d ed. 2005).
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`38. Each of those acids is responsible for unique sensory characteristics of sourness.
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`IV. FLAVOR PROPERTIES OF FRUITS
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`39. Fruit flavors are the sum of the interaction between sugars, acids, and volatile
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`compounds.9
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`40. Consumer acceptability of the flavor of the pictured fruits are based on their
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`perceived sweetness and tartness, determined by their sugar to acid ratio.
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`41. Sugars, mainly glucose and fructose, and their ratio to acids, such as citric and malic
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`acid, determine the sweetness of fruits.
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`42. The table below shows the acid composition of numerous fruits.
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`43.
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`In cherries, malic acid is the predominant acid.
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`44.
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`In oranges, strawberries, and raspberries, malic acid is a secondary acid to citric acid.
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`45. Malic acid contributes and enhances the fruity, sweet and sour taste of these and other
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`9 Y.H. Hui, et al., Handbook of Fruit and Vegetable Flavors, p. 693 (2010).
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`6
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`fruits.
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`V. CHEMICAL STRUCTURE OF MALIC ACID
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`46. Malic acid (molecular formula C4H6O5) is the common name for 1-hydroxy-1, 2-
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`ethanedicarboxylic acid.
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`47. Malic acid has two isomers, or different arrangements of atoms in the molecule, L-
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`malic acid, and D-malic acid. 21 C.F.R. § 184.1069.
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`48. An isomer is a molecule sharing the same atomic make-up as another but differing
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`in structural arrangements.10
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`49. Stereoisomers contain different types of isomers, each with distinct characteristics
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`that separate each other as different chemical entities with different chemical properties.
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`50. Stereoisomers differ from each other by spatial arrangement, meaning different
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`atomic particles and molecules are situated differently in any three-dimensional direction by even
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`one degree.
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`51. An enantiomers is a type of stereoisomer that is a mirror-image and cannot be
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`superimposed.
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`52. Enantiomers are like right and left-hand versions of the same molecular formula.
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`53. D-Malic Acid and L-Malic Acid are enantiomers.
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`54. Below are skeletal formulas of the enantiomers D-Malic Acid and L-Malic Acid:
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`10 Dan Chong and Jonathan Mooney, Chirality and Stereoisomers (2019).
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`55. L-malic acid occurs naturally in various fruits and is known for providing sweetness
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`and tartness, among other flavors.
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`56. D-Malic Acid does not occur naturally.
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`57. D-Malic Acid is most commonly found as a racemic mixture of the D isomer and L
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`isomer, DL-Malic Acid, which is commercially made from petroleum products.
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`VI. ADDITION OF DL-MALIC ACID
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`58. Adding DL-Malic Acid to a solution of natural flavorings containing L-Malic Acid
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`changes the concentration of malic acid in the solution and the ratio of total malic acid to sugars
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`in that solution.
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`59. Natural sugars – like glucose, fructose, and sucrose – combined with artificial DL-
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`Malic Acid in a ratio engineered to resemble the natural chemical combination of sugar and L-
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`Malic Acid found in the characterizing fruit flavors of the Product is not equivalent to the natural
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`flavor of those characterizing fruits and flavors.
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`60. A natural chemical combination of sugar and L-Malic Acid, altered by adding
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`artificial DL-Malic Acid, is no longer equivalent to the original chemical combination of sugar
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`and L-Malic Acid, and therefore no longer the natural flavor.
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`61. Defendant includes DL-Malic Acid to help make the Product taste tart and fruity,
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`like the pictured fruits taste naturally.
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`62. Defendant adds artificial DL-malic acid to the Product to create, enhance, simulate,
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`and/or reinforce the sweet and tart taste that consumers associate with these and other fruits.
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`63. Defendant had the option to add naturally extracted L-Malic Acid, naturally
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`manufactured acid such as citric acid, or natural fruit flavors, but used artificial DL-Malic Acid
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`because it was likely cheaper or more accurately resembled the natural fruit flavors than citric acid
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`or other acids.
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`64. DL-malic acid is synthetically produced from petroleum in a high-pressure, high-
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`temperature, catalytic process.
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`65. Since there are natural and artificial types of malic acid, laboratory analysis is
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`required to identify which type was used in the Product.
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`66. Laboratory analysis concluded this, or other substantially similar Products sold by
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`Defendant contain artificial, DL-malic acid, instead of natural, L-malic acid.
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`67. The Product’s labeling is misleading because it states, “Orange, Cherry & Mixed
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`Berry With Other Natural Flavors,” and “No Artificial Flavors – Natural Fruit Flavors,” when
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`these statements are false and misleading.
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`68. The ingredients are declared in a way that is misleading and contrary to law, because
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`it lists “Malic Acid,” the ingredient’s generic name, instead of its specific name, “DL-Malic Acid.”
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`VII. REQUIREMENTS FOR LABELING
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`69. Federal and identical state regulations prohibit false and deceptive identification of
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`the source of a food, beverage, or dietary supplement’s characterizing flavors.
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`70. The requirements for labeling the flavor of a dietary supplement are the same as for
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`a food or beverage.
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`71. Artificial flavor is defined as “any substance, the function of which is to impart
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`flavor, which is not derived from a spice, fruit or fruit juice, vegetable or vegetable juice, edible
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`yeast, herb, bark, bud, root, leaf or similar plant material, meat, fish, poultry, eggs, dairy products,
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`or fermentation products thereof.” 21 C.F.R § 101.22(a)(1).
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`72. Natural flavor is defined as “essential oil, oleoresin, essence or extractive, protein
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`hydrolysate, distillate, or any product of roasting, heating or enzymolysis, which contains the
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`flavoring constituents” from fruits or vegetables, “whose significant function in food is flavoring
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`rather than nutritional.” 21 C.F.R § 101.22(a)(3).
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`73. DL-Malic Acid is not a “natural flavor” as this term is defined by federal and state
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`regulations and is not derived from a fruit or vegetable or any other natural source.
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`74. A combination of sugar and DL-Malic Acid in a ratio resembling a fruit flavor cannot
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`be derived from a fruit or vegetable.
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`75. A combination of sugar, natural L-Malic Acid, and artificial DL-Malic Acid
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`combined in a way to resemble the natural ratio of sugar and L-Malic Acid found in the
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`characterizing natural flavors of the Product cannot be derived from a fruit or vegetable.
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`76. A combination of sugars and artificial DL-Malic Acid engineered to resemble the
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`natural ratio of sugars and natural L-Malic Acid that make up the natural flavor of the
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`characterizing fruits of the Product is not a natural flavor.
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`77. The natural flavors of the pictured fruits is heavily dependent on specific ratios of
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`sugar and L-Malic Acid, while the Product’s flavors depend upon a ratio of sugar and DL-Malic
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`Acid.
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`78. DL-Malic Acid could function as a flavor enhancer or PH balancer.
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`79. A flavor enhancer is “added to supplement, enhance, or modify the original taste and
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`or aroma of a food without imparting a characteristic taste or aroma of its own.” 21 C.F.R. §
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`170.3(o)(11).
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`80. For example, malic acid added to vinegar (ascetic acid) dishes like barbecue pork,
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`coleslaw, or pickled eggs would most likely not fundamentally alter the underlying vinegar flavors.
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`81. However, because the flavor imparted by malic acid is a core component of the
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`pictured fruits, DL-Malic Acid does not function as a flavor enhancer.
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`82. Under these circumstances, artificial DL-Malic Acid fundamentally alters the
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`original combination of sugar and natural L-Malic Acid core to the pictured fruits, so that the
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`flavors of the Product are no longer a natural ratio of sugar and L-Malic Acid but instead an
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`artificial ratio of sugar and DL-Malic Acid.
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`83. PH balancers are “substances added to change or maintain active acidity or basicity,
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`including buffers, acids, alkalis, and neutralizing agents.” 21 C.F.R. § 170.3(o)(23).
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`84. The malic acid used is not a PH balancer because it is not necessary to change or
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`maintain active acidity or basicity in the Product.
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`85.
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`Irrespective of the purpose Defendant may claim DL-Malic Acid was added to the
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`Product, it has the same effect on its characterizing flavors.
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`86. Defendant does not have the ability to command DL-Malic Acid to only perform
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`certain functions and is not allowed to decide which malic acid constitutes flavor and which malic
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`acid constitutes only a flavor enhancer or PH balancer.
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`87. The Product’s primary or “characterizing” flavors are “Orange, Cherry & Mixed
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`Berry.” 21 C.F.R. § 101.22.
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`88. The Product’s
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`label makes “direct or
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`indirect representations” about
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`its
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`characterizing flavors, through words, “Orange, Cherry & Mixed Berry,” and the pictures of these
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`fruits. 21 C.F.R. § 101.22(i).
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`89. Federal and state regulations require the Product to disclose whether its
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`characterizing fruit flavors are from these fruits, natural sources other than these fruits, and/or from
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`artificial, chemical sources, such as DL-Malic Acid, from petroleum. 21 C.F.R. § 101.22(i).
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`90. Since the Product contains artificial flavor, DL-Malic Acid, that simulates, resembles
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`and reinforces the characterizing fruit flavors, the name of the characterizing flavors “shall be
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`accompanied by the word(s) ‘artificial’ or ‘artificially flavored,’” such as “Artificial Orange,
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`Cherry & Mixed Berry Flavored.” 21 C.F.R. § 101.22(i)(2).
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`91. Plaintiff and consumers are unable to learn the malic acid listed in the ingredients is
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`the artificial version without a chemistry kit and detailed knowledge of the relevant regulations.
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`92. The Product’s fruit flavor from DL-Malic Acid resembles the natural characterizing
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`flavors represented to be used.
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`93. Plaintiff purchased the Product because the packaging claimed it contained “No
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`Artificial Flavors” and that only natural flavors were responsible for the fruit taste.
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`94. Defendant employs chemists to create the chemical flavor formula of the Product.
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`95. Defendant knew or should have known that DL-Malic Acid is not naturally
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`occurring, and that by adding DL-Malic Acid, the natural flavorings would be fundamentally
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`changed.
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`96. Defendant knew that DL-Malic Acid would contribute to the tart and fruity fruit taste,
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`and that it was used to enhance the taste of fruits.
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`VIII. CONCLUSION
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`97. Defendant makes other representations and omissions with respect to the Product
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`which are false and misleading.
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`98. Reasonable consumers must and do rely on a company to honestly and lawfully
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`market and describe the components, attributes, and features of a product, relative to itself and
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`other comparable products or alternatives.
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`99. The value of the Product that Plaintiff purchased was materially less than its value
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`as represented by Defendant.
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`100. Defendant sold more of the Product and at higher prices than it would have in the
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`absence of this misconduct, resulting in additional profits at the expense of consumers.
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`101. Had Plaintiff and proposed class members known the truth, they would not have
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`bought the Product or would have paid less for it.
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`102. As a result of the false and misleading representations, the Product is sold at a
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`premium price, approximately no less than no less than $13.29 per 150 gummies, excluding tax
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`and sales, higher than similar products, represented in a non-misleading way, and higher than it
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`would be sold for absent the misleading representations and omissions.
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`Jurisdiction and Venue
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`103. Jurisdiction is proper pursuant to Class Action Fairness Act of 2005 (“CAFA”). 28
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`U.S.C. § 1332(d)(2).
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`104. The aggregate amount in controversy exceeds $5 million, including any statutory
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`damages, exclusive of interest and costs.
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`105. Plaintiff Laura Harmon is a citizen of Illinois.
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`106. Defendant Pharmavite LLC is a California limited liability company with a principal
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`place of business in West Hills, Los Angeles County, California. and upon information and belief,
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`at least one member of defendant is not a citizen of the same state as the plaintiff.
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`107. The class of persons Plaintiff seeks to represent includes persons who are citizens of
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`different states from which Defendant is a citizen
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`108. The members of the class Plaintiff seeks to represent are more than 100, because the
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`Product has been sold for several years, with the representations described here, in thousands of
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`locations, in the states covered by Plaintiff’s proposed classes.
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`109. The Product is available to consumers from third-parties, which includes grocery
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`stores, dollar stores, warehouse club stores, drug stores, convenience stores, big box stores, and/or
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`online, and from Defendant's website
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`110. Venue is in the Western Division in this District because a substantial part of the
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`events or omissions giving rise to these claims occurred in McHenry County, including Plaintiff’s
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`purchase, consumption, and/or use of the Product and awareness and/or experiences of and with
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`the issues described here.
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`Parties
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`111. Plaintiff Laura Harmon is a citizen of Marengo, McHenry, Illinois.
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`112. Defendant Pharmavite LLC is a California limited liability company with a principal
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`place of business in West Hills, California, Los Angeles County.
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`113. Defendant is one of the largest suppliers of vitamins and supplements in the world.
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`114. For decades, consumers have relied on the Nature Made brand and its green leaf logo
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`to expect dietary supplements made with natural ingredients.
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`115. In the dietary supplement and vitamin industry, which is often subject to negative
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`scrutiny, these promises of quality assured consumers they could trust what they were told.
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`116. Consumers trust the Nature Made brand to be honest with them, because they have
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`built up a reservoir of good will when it comes to vitamins.
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`117. The Product is available to consumers from third-parties, which includes grocery
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`stores, dollar stores, warehouse club stores, drug stores, convenience stores, big box stores, and/or
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`online, and from Defendant's website
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`118. Plaintiff purchased the Product on one or more occasions within the statutes of
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`limitations for each cause of action alleged, at stores including Walmart, 12300 S Il Route 47
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`Huntley IL 60142-9634 between November 13, 2021, and December 13, 2021, and/or among other
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`times.
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`119. Plaintiff believed and expected the Product contained only natural flavoring
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`ingredients and did not contain artificial flavoring ingredients because that is what the
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`representations and omissions said and implied.
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`120. Plaintiff relied on the words, terms coloring, descriptions, layout, packaging, tags,
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`and/or images on the Product, on the labeling, statements, omissions, claims, statements, and
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`instructions, made by Defendant or at its directions, in digital, print and/or social media, which
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`accompanied the Product and separately, through in-store, digital, audio, and print marketing.
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`121. Plaintiff bought the Product at or exceeding the above-referenced price.
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`122. Plaintiff would not have purchased the Product if she knew the representations and
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`omissions were false and misleading or would have paid less for it.
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`123. Plaintiff chose between Defendant’s Product and products represented similarly, but
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`which did not misrepresent their attributes, requirements, instructions, features, and/or
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`components.
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`124. The Product was worth less than what Plaintiff paid and she would not have paid as
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`much absent Defendant's false and misleading statements and omissions.
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`125. Plaintiff intends to, seeks to, and will purchase the Product again when she can do so
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`with the assurance the Product's representations are consistent with its abilities, attributes, and/or
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`composition.
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`126. Plaintiff is unable to rely on the labeling and representations not only of this Product,
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`but other similar gummy vitamins promoting only natural flavors, because she is unsure whether
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`those representations are truthful.
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`Class Allegations
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`127. Plaintiff seeks certification under Fed. R. Civ. P. 23 of the following classes:
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`Illinois Class: All persons in the State of Illinois who
`purchased
`the Product during
`the statutes of
`limitations for each cause of action alleged; and
`
`Consumer Fraud Multi-State Class: All persons in
`the States of Arkansas, Iowa, Wyoming, Texas,
`Nebraska, South Dakota, West Virginia, Utah, Idaho,
`Alaska, and Montana who purchased the Product
`during the statutes of limitations for each cause of
`action alleged.
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`128. Common questions of issues, law, and fact predominate and include whether
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`Defendant’s representations were and are misleading and if Plaintiff and class members are entitled
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`to damages.
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`129. Plaintiff's claims and basis for relief are typical to other members because all were
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`subjected to the same unfair, misleading, and deceptive representations, omissions, and actions.
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`130. Plaintiff is an adequate representative because her interests do not conflict with other
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`members.
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`131. No individual inquiry is necessary since the focus is only on Defendant’s practices
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`and the class is definable and ascertainable.
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`132. Individual actions would risk inconsistent results, be repetitive and are impractical
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`Case: 3:22-cv-50091 Document #: 1 Filed: 03/26/22 Page 17 of 22 PageID #:17
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`to justify, as the claims are modest relative to the scope of the harm.
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`133. Plaintiff's counsel is competent and experienced in complex class action litigation
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`and intends to protect class members’ interests adequately and fairly.
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`134. Plaintiff seeks class-wide injunctive relief because the practices continue.
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`Illinois Consumer Fraud and Deceptive Business Practices Act
`(“ICFA”), 815 ILCS 505/1, et seq.
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`(Consumer Protection Statute)
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`135. Plaintiff incorporates by reference all preceding paragraphs.
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`136. Plaintiff believed the Product contained only natural flavoring ingredients and did
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`not contain artificial flavoring ingredients.
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`137. Defendant’s false, misleading and deceptive representations and omissions are
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`material in that they are likely to influence consumer purchasing decisions.
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`138. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`139. Plaintiff relied on the representations and omissions to believe the Product contained
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`only natural flavoring ingredients and did not contain artificial flavoring ingredients.
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`140. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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` Violation of State Consumer Fraud Acts
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`(On Behalf of the Consumer Fraud Multi-State Class)
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`141. The Consumer Fraud Acts of the States in the Consumer Fraud Multi-State Class are
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`similar to the consumer protection statute invoked by Plaintiff and prohibit the use of unfair or
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`deceptive business practices in the conduct of commerce.
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`Case: 3:22-cv-50091 Document #: 1 Filed: 03/26/22 Page 18 of 22 PageID #:18
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`142. The members of the Consumer Fraud Multi-State Class reserve their rights to assert
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`their consumer protection claims under the Consumer Fraud Acts of the States they represent
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`and/or the consumer protection statute invoked by Plaintiff.
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`143. Defendant intended that members of the Consumer Fraud Multi-State Class would
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`rely upon its deceptive conduct.
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`144. As a result of Defendant’s use of artifice, and unfair or deceptive acts or business
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`practices, the members of the Consumer Fraud Multi-State Class sustained damages.
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`145. Defendant’s conduct showed motive and a reckless disregard of the truth such that
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`an award of punitive damages is appropriate.
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`Breaches of Express Warranty,
`Implied Warranty of Merchantability/Fitness for a Particular Purpose and
`Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
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`146. The Product was manufactured, identified, marketed and sold by Defendant and
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`expressly and impliedly warranted to Plaintiff and class members that it contained only natural
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`flavoring ingredients and did not contain artificial flavoring ingredients.
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`147. Defendant directly marketed the Product to Plaintiff and consumers through its
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`advertisements and marketing, through various forms of media, on the packaging, in print
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`circulars, direct mail, and targeted digital advertising.
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`148. Defendant knew the product attributes that potential customers like Plaintiff were
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`seeking and developed its marketing and labeling to directly meet those needs and desires.
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`149. Defendant’s representations about the Product were conveyed in writing and
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`promised it would be defect-free, and Plaintiff understood this meant that it contained only natural
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`flavoring ingredients and did not contain artificial flavoring ingredients.
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`150. Defendant’s representations affirmed and promised that the Product contained only
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`natural flavoring ingredients and did not contain artificial flavoring ingredients.
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`Case: 3:22-cv-50091 Document #: 1 Filed: 03/26/22 Page 19 of 22 PageID #:19
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`151. Defendant described the Product so Plaintiff and consumers believed it contained
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`only natural flavoring ingredients and did not contain artificial flavoring ingredients, which
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`became part of the basis of the bargain that it would conform to its affirmations and promises.
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`152. Defendant had a duty to disclose and/or provide non-deceptive descriptions and
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`marketing of the Product.
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`153. This duty is based on Defendant’s outsized role in the market for this type of Product,
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`a trusted company, known for its transparent labeling, and its commitment to putting customers
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`first.
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`154. Plaintiff recently became aware of Defendant’s breach of the Product’s warranties.
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`155. Plaintiff provided or will provide notice to Defendant, its agents, representatives,
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`retailers, and their employees.
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`156. Plaintiff hereby provides notice to Defendant that it breached the express and implied
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`warranties associated with the Product.
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`157. Defendant received notice and should have been aware of these issues due to
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`complaints by third-parties, including regulators, competitors, and consumers, to its main offices,
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`and by consumers through online forums.
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`158. The Product did not conform to its affirmations of fact and promises due to
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`Defendant’s actions.
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`159. The Product was not merchantable because it was not fit to pass in the trade as
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`advertised, not fit for the ordinary purpose for which it was intended and did not conform to the
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`promises or affirmations of fact made on the packaging, container or label, because it was marketed
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`as if it contained only natural flavoring ingredients and did not contain artificial flavoring
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`ingredients.
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`Case: 3:22-cv-50091 Document #: 1 Filed: 03/26/22 Page 20 of 22 PageID #:20
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`160. The Product was not merchantable because Defendant had reason to know the
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`particular purpose for which the Product was bought by Plaintiff, because she expected it contained
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`only natural flavoring ingredients and did not contain artificial flavoring ingredients, and she relied
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`on Defendant’s skill and judgment to select or furnish such a suitable product.
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`161. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Negligent Misrepresentation
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`162. Defendant had a duty to truthfully represent the Product, which it breached.
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`163. This duty was non-delegable, and based on Defendant’s position, holding itself out
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`as having special knowledge and experience in this area, a trusted company, known for its
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`transparent labeling, and its commitment to putting customers first.
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`164. Defendant’s representations and omissions regarding the Product went beyond the
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`specific representations on the packaging, as they incorporated the extra-labeling promises and
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`commitments to quality, transparency and putting customers first, that it has been known for.
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`165. These promises were outside of the standard representations that other companies
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`may make in a standard arms-length, retail c