Case 3:21-cv-00799-JPG Document 1 Filed 07/11/21 Page 1 of 13 Page ID #1
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF ILLINOIS
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`Emma Shelton, individually and on behalf of all
`others similarly situated,
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`3:21-cv-00799
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`Plaintiff,
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`- against -
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`Class Action Complaint
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`Kraft Heinz Foods Company,
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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. Kraft Heinz Foods Company (“defendant”) manufactures, labels, markets and sells
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`Extra Sharp Yellow and Extra Sharp White (Cheese) Bites with Butter Crackers under the Cracker
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`Barrel brand (“Product”).
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`2.
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`The Product’s name, which includes “Butter Crackers,” is deceptive and misleading
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`because it gives the false impression it contains a non-de minimis amount of butter, made from
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`milk, cream or both.
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`3.
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`Instead, the crackers have butter substitutes – vegetable oils – and no butter.
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`I.
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`BUTTER CRACKER
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`4. When consumers see a food represented as “Butter Crackers,” they will understand
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`it is a type of cracker, and that “butter” is its defining feature.
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`5.
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`The meaning of compound words is greater than the sum of its parts, such that “butter
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`cracker” does not mean “a cracker made with some butter” but a cracker which is made only or
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`predominantly with butter – where butter is capable of being used.1
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`6.
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`Consumers prefer butter to its synthetic substitutes, typically made from “vegetable”
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`oils, i.e., margarine.
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`7.
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`8.
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`Long established FDA guidance reflects consumer appreciation for butter.
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`The FDA recommends that where a food is labeled “Butter ____________” or uses
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`the word “butter” in conjunction with its name, reasonable consumers will expect that whenever
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`butter could be used in a product, it would be, instead of butter substitutes.2
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`9.
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`Consumers prefer butter to chemically produced “vegetable” oils for numerous
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`reasons.
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`10. First, butter does not contain the trans fats of vegetable oils.
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`1 Of course, a cracker must contain flour, so the expectation of only or predominantly butter is with respect to the role
`of butter or fat ingredients in a cracker.
`2 Compliance Policy Guide (“CPG”), Sec 505.200, “Butter” Featured in Product Name, Center for Food Safety and
`Applied Nutrition, Office of Regulatory Affairs, March 1988 (“If the product contains both butter and shortening but
`a sufficient amount of butter to give a characteristic butter flavor to the product, an appropriate name would be ‘butter
`flavored ____________’… if the product contains any artificial butter flavor it would have to be labeled in compliance
`with 21 CFR 101.22(i)(2).”).
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`2
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`11. Second, butter is natural, made by churning cow’s milk.
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`12. Butter substitutes, like vegetable oils, are synthetic.
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`13. Highly refined vegetable oils are subjected to hydrogenation and interesterification,
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`in the presence of chemical catalysts such as nickel and cadmium.
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`14. Third, butter is rich in nutrients like calcium and Vitamins A and D.
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`15. Fourth, butter has a creamy, sweet taste.
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`16. While vegetable oils are typically “refined, bleached and deodorized,” to supposedly
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`provide a neutral taste, the reality is different.
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`17. Vegetable oils are highly susceptible to oxidation.
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`18. The result is “reversion” of the flavor back to that of the original crude oil before it
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`was processed.
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`19. This flavor is described as “beany, ”“powdery” or “fishy.”
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`20. Vegetable oils detract from any authentic butter taste.
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`21. Though vegetable oils are described as “refined, bleached and deodorized,” and
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`purportedly do not affect a food’s taste, the reality is different.
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`22. To describe a food’s taste as “buttery” is a compliment, which refers to a light and
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`fluffy texture, while vegetable oils contribute to a waxy mouthfeel which leaves an aftertaste.
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`23. Fifth, butter creates a flaky texture that is softer and less dense than one using
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`vegetable oils, because butter is solid at room temperature.
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`24. Butter is more expensive than vegetable oils.
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`II.
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`“BUTTER CRACKERS” MISLEADING BECAUSE NO BUTTER
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`25. The name “Butter Crackers” is misleading because the Product does not contain any
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`butter and uses vegetable oils – canola and palm oil – in its place.
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`INGREDIENTS:
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`EXTRA SHARP CHEDDAR (CHEDDAR CHEESE [PASTEURIZED MILK,
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`CHEESE CULTURE, SALT, ENZYMES, ANNATTO (COLOR)], MODIFIED
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`CORNSTARCH ADDED TO PREVENT CAKING, NATAMYCIN
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`[A
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`NATURAL MOLD INHIBITOR]), EXTRA SHARP WHITE CHEDDAR
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`(CHEDDAR CHEESE [PASTEURIZED MILK, CHEESE CULTURE, SALT,
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`ENZYMES], MODIFIED CORNSTARCH ADDED TO PREVENT CAKING,
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`NATAMYCIN [A NATURAL MOLD INHIBITOR]), BUTTER CRACKERS
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`(UNBLEACHED ENRICHED FLOUR [WHEAT FLOUR, NIACIN, REDUCED
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`IRON, THIAMINE MONONITRATE
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`(VITAMIN B1), RIBOFLAVIN
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`(VITAMIN B2), FOLIC ACID], CANOLA OIL, SUGAR, PALM OIL,
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`LEAVENING [CALCIUM PHOSPHATE AND/OR BAKING SODA], SALT,
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`SOY LECITHIN).
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`26. Though crackers do not have high levels of fat, the fat content contributes to their
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`taste and texture.
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`27. The absence of butter – understood as made only from milk, cream, or both – is
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`misleading based on the representation of “Butter Crackers.”
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`28. “Butter crackers” which are made only with butter and not vegetable oils exist in the
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`marketplace and are technologically feasible.
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`INGREDIENTS: Enriched Unbleached Flour
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`(wheat flour, malted barley flour, niacin, reduced
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`iron, thiamine mononitrate, riboflavin, folic acid),
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`Butter (cream [milk], salt), Cane Sugar, Non-
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`GMO Baking Powder (monocalcium phosphate,
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`sodium bicarbonate, corn starch), Sea Salt,
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`Topping Salt.
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`29. These “Sweet Butter Crackers” contain butter and no butter substitutes.
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`30. Defendant did not have to name the Product “Butter Crackers,” but chose to, since
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`this is more enticing to consumers.
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`31. Consumers are accustomed to labels which truthfully disclose where a food labeled
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`as “Butter ” gets its taste from real butter or artificial butter flavor.
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`32. For example, cookies and biscuits which tout “butter” conspicuously disclose that
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`their butter taste is from artificial flavor.
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`33. Snacks that emphasize “butter” truthfully tell consumers that their butter taste is not
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`from butter but from artificial butter flavors.
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`34. Cake mix described as “Butter Golden” tells consumers its butter taste is because it
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`is “Artificially Flavored” to imitate butter instead of from butter.
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`35. Defendant’s Product does not even purport to have a “butter flavor,” as the
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`ingredients fail to indicate a flavoring ingredient, i.e., “Natural Flavor.”
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`36. The representation of “Butter Crackers” is especially misleading considering the lack
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`of qualifications for this description.
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`III. CONCLUSION
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`37. Reasonable consumers must and do rely on a company to honestly identify and
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`describe the components, attributes and features of a product or service, or its production process,
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`relative to itself and other comparable products or alternatives.
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`38. The value of the Product that plaintiff purchased was materially less than its value as
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`represented by defendant.
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`39. 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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`40. Had Plaintiff and proposed class members known the truth of the Fair Trade Certified
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`Dairy – that it failed to assure a minimum of basic worker protections, they would not have bought
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`the Product or would have paid less for it.
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`41. The Product is sold for a price premium compared to other similar products, no less
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`than $2.39 for a 1.58 ounces, a higher price than it would otherwise be sold for, absent the
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`misleading representations and omissions.
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`Jurisdiction and Venue
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`42.
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`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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`43. Upon information and belief, the aggregate amount in controversy exceeds $5
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`million, including any statutory damages, exclusive of interest and costs.
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`44. Plaintiff Emma Shelton is a citizen of Illinois.
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`45. Defendant Kraft Heinz Foods Company is a Pennsylvania limited liability company
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`with a principal place of business in Pittsburgh, Alleghany County, Pennsylvania and upon
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`information and belief, at least one member of defendant is not a citizen of the same state as the
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`plaintiff.
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`46. Venue is in this district because plaintiff resides in this district and a substantial part
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`of the events or omissions giving rise to the claims occurred here, plaintiff’s purchase of the
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`Product.
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`Parties
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`47. Plaintiff Emma Shelton is a citizen of Thompsonville, Franklin County, Illinois.
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`48. Defendant Kraft Heinz Foods Company, is a Pennsylvania limited liability company
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`with a principal place of business in Pittsburgh, Pennsylvania, Alleghany County.
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`49. Defendant’s corporate predecessor – the Kraft Corporation – was started in 1903
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`through the sale of cheese door-to-door in Chicago.
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`50. Within twenty years, Kraft had become the largest manufacturer of cheese in the
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`world.
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`world.
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`51.
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`In 2015, Kraft merged with Heinz to create one of the largest food companies in the
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`52. While defendant sells various types of foods, it is most well-known for selling foods
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`which contain dairy ingredients.
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`53. Defendant licenses the name of the popular Cracker Barrel restaurant chain, known
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`for its authentic and traditional southern food, of which butter is a key component.
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`54. Plaintiff bought the Product on one or more occasions within the statute of limitations
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`for each cause of action alleged, from stores including Kroger, 1704 W Deyoung St, Marion, IL
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`62959, between April and May, 2021, among other times.
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`55. Plaintiff saw the front label that said, “With Butter Crackers” and “Butter Crackers,”
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`and believed this meant the crackers had at least some butter.
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`56. Plaintiff was not distrustful of the representation of “Butter Crackers” and did not
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`scrutinize the ingredient list to disprove the front label claim.
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`57. Plaintiff bought the Product at or exceeding the above-referenced price.
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`58. Plaintiff relied on the representations identified here.
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`59. Plaintiff would not have purchased the Product if she knew the representations were
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`false and misleading.
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`60. Plaintiff chose between Defendant’s Product and other similar products which were
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`represented similarly, but which did not misrepresent their attributes and/or lower-priced products
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`which did not make the claims made by Defendant.
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`61. 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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`62. Plaintiff intends to, seeks to, and will purchase the Product again when she can do so
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`with the assurance that Product's representations are consistent with its composition.
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`Class Allegations
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`63. The class will consist of Illinois residents who purchased the Product during the
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`statutes of limitations for each cause of action alleged.
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`64. Common questions of law or fact predominate and include whether defendant’s
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`representations were and are misleading and if plaintiff and class members are entitled to damages.
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`65. Plaintiff's claims and basis for relief are typical to other members because all were
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`subjected to the same unfair and deceptive representations and actions.
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`66. Plaintiff is an adequate representative because her interests do not conflict with other
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`members.
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`67. 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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`68.
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`Individual actions would risk inconsistent results, be repetitive and are impractical
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`to justify, as the claims are modest relative to the scope of the harm.
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`69. 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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`70. 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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`71. Plaintiff incorporates by reference all preceding paragraphs.
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`72. Plaintiff and class members desired to purchase a product which contained at least
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`some butter, instead of no butter.
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`73. Defendant’s false and deceptive representations and omissions are material in that
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`they are likely to influence consumer purchasing decisions.
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`74. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`75. Plaintiff relied on the representations.
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`76. 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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`Breaches of Express Warranty,
`Implied Warranty of Merchantability and
`Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
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`77. The Product was manufactured, labeled and sold by defendant and expressly and
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`impliedly warranted to plaintiff and class members that it contained at least some butter, instead
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`of no butter.
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`78. 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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`79. This duty is based on Defendant’s outsized role in the market for this type of Product.
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`80. Plaintiff provided or will provide notice to defendant, its agents, representatives,
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`retailers and their employees.
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`81. Defendant received notice and should have been aware of these issues due to
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`complaints by regulators, competitors, and consumers, to its main offices.
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`82. The Product did not conform to its affirmations of fact and promises due to
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`defendant’s actions and were not merchantable because they were not fit to pass in the trade as
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`advertised.
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`83. 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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`84. Defendant had a duty to truthfully represent the Product, which it breached.
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`85. This duty is based on defendant’s position, holding itself out as having special
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`knowledge and experience this area.
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`86. The representations took advantage of consumers’ cognitive shortcuts made at the
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`point-of-sale and their trust in defendant, a well-known brand.
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`87. Plaintiff and class members reasonably and justifiably relied on these negligent
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`misrepresentations and omissions, which served to induce and did induce, their purchase of the
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`Product.
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`88. 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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`Fraud
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`89. Defendant misrepresented and/or omitted the attributes and qualities of the Product,
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`that it contained at least some butter, instead of no butter
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`90. Defendant’s fraudulent intent is evinced by its knowledge that the Product was not
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`consistent with its representations.
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`Unjust Enrichment
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`91. Defendant obtained benefits and monies because the Product was not as represented
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`and expected, to the detriment and impoverishment of plaintiff and class members, who seek
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`restitution and disgorgement of inequitably obtained profits.
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`Jury Demand and Prayer for Relief
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`Plaintiff demands a jury trial on all issues.
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` WHEREFORE, Plaintiff prays for judgment:
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`1. Declaring this a proper class action, certifying plaintiff as representative and the
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`undersigned as counsel for the class;
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`2. Entering preliminary and permanent injunctive relief by directing defendant to correct the
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`challenged practices to comply with the law;
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`3. Injunctive relief to remove, correct and/or refrain from the challenged practices and
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`representations, and restitution and disgorgement for members of the class pursuant to the
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`applicable laws;
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`4. Awarding monetary damages, statutory damages pursuant to any statutory claims and
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`interest pursuant to the common law and other statutory claims;
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`5. Awarding costs and expenses, including reasonable fees for plaintiff's attorneys and
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`experts; and
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`6. Other and further relief as the Court deems just and proper.
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`Dated: July 11, 2021
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`13
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`Respectfully submitted,
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`Sheehan & Associates, P.C.
`/s/Spencer Sheehan
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021-3104
`Tel: (516) 268-7080
`Fax: (516) 234-7800
`spencer@spencersheehan.com
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