Case 1:21-cv-10928-PBS Document 1 Filed 06/03/21 Page 1 of 20
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`Case 1:21-cv-10928-PBS Document 1 Filed 06/03/21 Page 1 of 20
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`UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF MASSACHUSETTS
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`x
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`MICHELLE FRANCIONE, individually and on
`behalf of all
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`others similarly situated,
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`Plaintiff,
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`V.
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`KRAFT HEINZ FOODS COMPANY
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`Defendant.
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`.
`:
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`'
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`:
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`Case No.
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`CLASS ACTION
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`COMPLAINT
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`JURY TRIAL DEMANDED
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`Plaintiff, Michelle Francione (hereinafter “Plaintiff’), brings this action individually and
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`on behalf of all others similarly situated against Defendant Kraft Heinz Foods Company (“Kraft”
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`or “Defendant”) for making, processing, manufacturing, marketing, distributing and selling its
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`Kraft Macaroni & Cheese products (hereinafter, the “Products” or “Kraft Mac & Cheese
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`Products”). Plaintiff asserts the following allegations pursuant to the investigation by her counsel
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`and based upon information and belief, except as to the allegations pertaining to herself, which
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`are based on personal knowledge:
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`NATURE OF THE ACTION
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`1.
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`This class action concerns the presence of harmful chemicals known as ortho-
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`phthalates (“phthalates”)
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`in Defendant’s popular Macaroni & Cheese products (i.e.,
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`the
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`Products).
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`2.
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`For years, Defendant has been aware that its Products contain phthalates but has
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`refused to take steps to remove these chemicals even though removal is possible using practical
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`and good manufacturing practices.
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`3.
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`Phthalates are classified as endocrine-disrupting chemicals and have been linked to
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`adverse health effects as described below.
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`4.
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`Reasonable consumers,
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`like Plaintiff,
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`trust manufacturers like Defendant
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`to
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`manufacture, make, process, distribute and sell food that is healthy, nutritious, and free from
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`harmful toxins, contaminants, and chemicals.
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`5.
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`Reasonable consumers, like Plaintiff, expect that the food they eat and feed their
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`family will be free from phthalates, substances known to have adverse health consequences.
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`6.
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`Consumers lack the scientific knowledge necessary to determine whether the
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`Products do in fact contain (or have a risk of containing) phthalates, or other undesirable toxins
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`or contaminants, or to ascertain the true nature of the ingredients and quality of the Products.
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`Reasonable consumers therefore must and do rely on Defendant to be transparent and not
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`affirmatively misrepresent the true quality of the Products. However, public reports and articles,
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`including in the recesses of Defendant’s own website, reveal that the Kraft Mac & Cheese
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`Products contain (or are at risk of containing) phthalates.
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`7.
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`Plaintiff brings this class action against Defendant for breach of warranty and unjust
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`enrichment, regarding the presence (or risk) of dangerous phthalates in the Kraft Mac & Cheese
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`Products, including those that Plaintiff purchased. Plaintiff seeks injunctive and monetary relief
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`on behalf of the proposed Class including (i) requiring testing of all ingredients and final Products
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`for such substances; (ii) removal of false and misleading statements and representations on the
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`Products’ packaging as described below; and (iii) restoring monies to the members of the
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`proposed Class. Plaintiff intends to amend this complaint to add a claim pursuant to M.G.L. c.
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`93A should Defendant fail to timely and meaningfully and fully offer to resolve this matter as to
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`the proposed class.
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`PARTIES
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`8.
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`Plaintiff Michelle Francione is, and at all times relevant to this action has been, a
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`resident of North Andover, Massachusetts. On several occasions during the last three years,
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`including within the last several months, Plaintiff purchased Kraft Macaroni & Cheese from a
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`Market Basket store located in North Andover, Massachusetts. Specifically, among Plaintiff’s
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`purchases of Products in the last several months, Plaintiff made purchases of two types of Kraft
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`Macaroni & Cheese Products (“Plaintiffs Product”) from a Market Basket grocery store in North
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`Andover, Massachusetts. The first purchase consisted of two boxes of Kraft EZ MAC CUP 3CH
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`' at a purchase price of $ 1.99 per box. The second purchase consisted of four boxes of KRAFT
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`MAC&CHEESE BOWL ORIGINAL at a price of $ 2.39 per box.
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`9.
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`Had Plaintiff known of the existence of the unsafe and dangerous levels of
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`phthalates in Defendant’s Products, she would not have purchased any of the Products, or at the
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`very least, would have paid significantly less for them. After learning of the presence of
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`phthalates in the Products, Plaintiff stopped purchasing the Products. However, Plaintiff
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`regularly visits stores where Defendant’s Products are sold and remains interested in
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`purchasing safe macaroni and cheese products. She would purchase Defendant’s Products in
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`the future if Defendant removed the phthalates.
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`10. Defendant Kraft Heinz Foods Company is a Pennsylvania-organized entity with
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`its principal place of 1 PPG Place, Suite 3400, Pittsburgh, PA. Defendant makes, processes,
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`manufactures, markets, and distributes and sells the Products throughout the United States
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`including in Massachusetts.
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`JURISDICTION AND VENUE
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`11.
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`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
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`§ 1332(d) because there are more than 100 class members and the aggregate amount in
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`controversy exceeds $5,000,000, exclusive of interest, fees, and costs, and at least one Class
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`member is a citizen of a state different from Defendant.
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`12.
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`This Court has personal jurisdiction over Defendant because Defendant conducts
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`substantial business within Massachusetts such that Defendant has significant, continuous, and
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`pervasive contacts within Massachusetts.
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`13. Venue is proper in this District pursuant to 28 U.S.C. § 1391 because Defendant
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`does substantial business in this District, a substantial part of the events giving rise to Plaintiff’s
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`claims took place within this District because Plaintiff purchased one or more of the Products
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`in this District and was therefore injured in this District.
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`COMMON FACTUAL ALLEGATIONS
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`Background on Phthalates
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`14.
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`Phthalates are synthetic chemicals used to make plastics flexible.
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`15.
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`Phthalates are dangerous and harmful chemicals when consumed, especially by
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`pregnant women and children.
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`16.
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`Phthalates can migrate into food products during processing, packaging, and
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`preparation. Although not intentionally added to food, phthalates are “indirect” food additives.
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`because they escape from food contact materials, including processing equipment, such as plastic
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`tubing and conveyor belts, as well as food packaging materials. When added to these materials
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`as plasticizers, phthalates shed onto anything that they touch, such as food products because they
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`are not chemically bound to the plastics and vinyl.
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`17. Because phthalates bind with fats, they tend to be found at higher levels in highly
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`processed or fatty foods, such as the Products.
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`18.
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`It is not necessary to use phthalates in the processing and packaging of Defendant’s
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`Products and the use of phthalates can be avoided entirely by Defendant through the use of good
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`manufacturing practices.
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`19. Within the scientific community, phthalates are called “endocrine disruptors”
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`because they affect the body’s hormones by mimicking them or blocking them. Specifically,
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`they interfere with the body’s natural levels of estrogen, testosterone, and other hormones, which
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`is why they are called “disruptors.”
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`20.
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`In the past few years, researchers have linked phthalates to asthma, attention-deficit
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`hyperactivity disorder, breast cancer, obesity and type II diabetes, low IQ, neurodevelopmental
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`issues, behavioral issues, autism spectrum disorders, altered reproductive development and male
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`fertility issues.1
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`21.
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`Even short—term exposure to phthalates has now been linked to developmental
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`deficits. Researchers have found that children in intensive care units who were exposed to the
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`phthalates through plastic tubing and catheters had 18 times as much of the chemicals in their
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`blood compared to children who had not spent time in the ICU. Four years later, the children
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`who had been exposed to the phthalates had more problems with attention and motor
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`coordination. The researchers found that the phthalates caused these problems regardless of
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`medical complications or treatments.
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`22. As of February 2009, children’s toys and child care products sold in the US (such
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`as teething rings and plastic books) cannot contain certain phthalates. The ban on those
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`phthalates is the result of a law passed in 2008, the Consumer Product Safety Improvement
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`Act. The law permanently banned these phthalates.
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`23.
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`In 2006, the European Union banned the use of certain phthalates in toys that may
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`be placed in the mouth by children younger than 3 years old. Fourteen other countries,
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`including Japan, Argentina, and Mexico, had also banned phthalates from children’s toys prior
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`to the U.S.
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`24.
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`It appears that the Food and Drug Administration (“FDA”) has not adopted a
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`standard for acceptable levels of phthalates in food.
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`Phthalates Are Toxic Industrial Chemicals Found in Boxed Macaroni and Cheese
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`25.
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`In 2017, the Coalition for Safer Food Processing and Packaging (the “Coalition”),
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`a group of nonprofit consumer health and food safety advocacy organizations, published a
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`study (the “Study”) that tested, among other cheese products, cheese powder in ten varieties of
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`macaroni and cheese.2 The Study concluded that phthalates were found in all 10 of the
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`varieties and that on average the phthalate levels in the ten macaroni and cheese powders tested
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`were more than four times higher than in the 15 natural cheeses tested, which were block
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`cheese, string cheese, cottage cheese, and shredded cheese.3 The Study also concluded that
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`2 See http://kleanupkraft.org/data-surnmary.pdf (last accessed June 1, 2021).
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`“DEHP, the most widely restricted phthalate, was found more often and at a much higher
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`average concentration than any other phthalate, among all the cheese products tested.”4
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`26. Although the Study did not publicly identify the brands for which the cheese
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`powder was tested, given the results of the Study, the Coalition wrote a public letter dated June
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`14, 2017 to the Chief Executive Officer of Kraft, asking that [Defendant], as the leading US.
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`seller of macaroni and cheese products, to “eliminate toxic industrial chemicals known as
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`ortho-phthalates from your food products.”5 According to the letter, the Coalition stated that it
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`had detected phthalates in Kraft’s products through the testing and wanted to meet with Kraft to
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`discuss this as it was planning a public outreach campaign.6 The letter stated that pregnant
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`women and young children are the “most vulnerable groups” and that food is “often the number
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`one source of phthalates exposure.”7 Fatty foods, including dairy products, appears to be “the
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`greatest contributor of dietary exposure to phthalates,” according to the letter.8 The Coalition
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`explained and cited the scientific findings to date showing that pre-natal exposure to phthalates
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`is highly dangerous to the fetus and leads to multiple harms once the children are born,
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`including neurodevelopmental problems such as ADHD, anti-social behavior, learning and
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`4 http://kleanupkraft.org/data—summary.pdf (last accessed June 1, 2021). See also Report to the
`US. Consumer Product Safety Commission by the Chronic Hazard Advisory Panel on
`Phthalates and Phthalate Alternatives, July 2014, US. Consumer Product Safety Commission,
`Directorate for Health Sciences, https://www.cpsc.gov/s3fs-public/CHAP-REPORT-With—
`Appendicespdf (last accessed June 1, 2021), at 90 (CPSC states that regarding DEHP, which is
`not allowed in children’s toys and child care products at levels greater than 0.1%, “[a] complete
`dataset suggests that exposure to DEHP in utero can induce adverse developmental changes to
`the male reproductive tract. Exposure to DEHP can also adversely affect many other organs
`such as the liver and thyroid”).
`5 http://kleanupkraft.org/kraft—phthalates-6—14-17.pdf (last accessed June 1, 2021).
`5 See id.
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`7 1d.
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`memory problems, and genital birth defects in boys.9 Moreover, the letter stated that
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`cumulative exposure to phthalates is of particular concern and that “safer alternatives are
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`already commercially available for many uses of phthalates.”10
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`27.
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`In the Frequently Asked Questions portion of Defendant’s website, Defendant
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`acknowledged the Study, that its Kraft Mac & Cheese Products do contain (or risk containing)
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`phthalates, and that it is important to “reduce or eliminate” such phthalates.11
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`28. On information and belief, in a recent letter, dated March 11, 2020, addressed to
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`the Chief Executive Officer of The Kraft Heinz Company, which included signatories from
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`disability organizations from 22 states, the chair of Harvard’s Department of Environmental
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`Health, and public health experts from several additional universities, disclosed to the CEO that
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`the “National Academy of Sciences estimates that environmental factors,
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`including toxic
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`chemicals, cause or contribute to at least a quarter of learning and developmental disabilities in
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`American children,” and that Kraft should lead the industry “by ensuring its supply chain is free
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`of phthalates.” On information and belief, the letter further stated that “[s]cientific studies show
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`that daily cumulative exposure to phthalates poses an unacceptable health risk to pregnant women
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`and young children.
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`Elevated phthalate exposure has been found to interfere with the
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`reproductive functions of both men and women and impede brain development in children. For
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`most people, the food we eat is the greatest exposure pathway to phthalates. Foods that are fattier
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`and more processed tend to have the highest phthalate levels.”
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`29.
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`Studies in addition to those noted above indicate and/or discuss the harmful and
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`dangerous effects of phthalates. For example, a study in 2014 sought to identify the primary
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`9 See id.
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`1° See id.
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`foods associated with increased exposure to phthalates. The study stated, “Given the increasing
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`scientific evidence base linking phthalate exposure with harmful health outcomes, it is important
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`to understand major sources of exposure.” 12 Dairy was found to be one of those sources.
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`According to the study, phthalates “are classified as endocrine—disrupting chemicals and have
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`been linked to adverse health effects particularly in relation to early life exposure.” The study
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`further noted that in “adult populations, various epidemiological studies support an association
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`between phthalate exposure and markers of testicular function in men, particularly decreased
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`semen quality.” It also noted that “evidence linking endometriosis in women with high phthalate
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`metabolite levels” and “[i]ncreases in waist circumference and body mass index (BMI) have been
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`linked to DEHP, BzBP, DBP and DEP exposure in men and DEP exposure in adolescent and
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`adult females.”13
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`30. Another study in 2014, which “examined the temporal trends in urinary
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`concentrations of phthalates metabolites in the general US. population,” also indicated that such
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`testing was important due to “the scientific community and public’s concern over phthalate
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`toxicity,” including the banning ofthe use of certain phthalates in toys, food—containing materials,
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`and cosmetics in the European Union, as well as toys and other child care articles in the US.14
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`The study noted: “Human epidemiologic studies have reported associations between exposure
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`to DnBP, BBzP, and some other phthalates and adverse male reproductive outcomes, including
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`12 Serrano SE, Braun J, Trasande L, Dills R, Sathyanarayana S (2014) Phthalates and diet: a
`review of food monitoring and epidemiology data. Environmental Health 13:43,
`https://ehjournalbiomedcentral.com/articles/10.1186/1476-069X-13-43 (last accessed June 1,
`2021).
`13 Id
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`1“ Zota AR, Calafat AM, Woodruff TJ (2014) Temporal Trends in Phthalate Exposures:
`Findings from the National Health and Nutrition Examination Survey, 2001-2010
`Environmental Health Perspectives 122(3):235-241,
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`reduced sperm quality, increased sperm DNA damage, and altered male genital development
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`(Hauser et al. 2006, 2007; Meeker et al. 2009; Swan et al. 2005). Other studies have reported
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`associations between gestational exposures to phthalates, including DEP, DnBP, BBzP, and
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`DEHP, and outcomes suggesting impaired behavioral development (Braun et al. 2013; Engel et
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`al. 2009; Swan et al. 2010; Whyatt et al. 2012).”15
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`Defendant’s Knowledge and Material Misrepresentations Regarding
`Phthalates
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`31. Defendant has known for at least four years that its Products contain dangerous
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`phthalates which have been shown to be harmful to health, including to pregnant women and
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`children, particularly on a cumulative basis, while falsely and deceptively touting its Products as
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`healthy, wholesome and nutritious.
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`32. Defendant’s packaging for Kraft Mac & Cheese Products represents and promises
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`that the Products are “The Taste You Love” as they have “NO Artificial Flavors” and “NO
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`Artificial Preservatives” and “NO Artificial Dyes.” These representations and promises leads
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`reasonable consumers to believe a Product is wholesome and healthy and does not contain
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`dangerous chemicals like phthalates.
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`33. But phthalates are toxic industrial chemicals that are far from wholesome or
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`healthy. While Defendant prominently represents on the front of the package that there are “NO”
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`“artificial” flavors, preservatives or dyes in the Kraft Mac & Cheese Products, the Products
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`contain dangerous and harmful phthalates.
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`34. None of these promises, statements and representations on the consumer-facing
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`packaging of the Products is required by federal or state law, but rather all were chosen
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`15 Id
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`voluntarily by Defendant to advertise and represent the Products as safe and healthy to
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`consumers .
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`35. On the “Frequently Asked Questions” section of the kraftmacandcheese.com
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`website, under the question, “Should I be concerned about food and phthalates?,” Defendant
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`states that it “know[s] moms and dads trust Kraft Mac & Cheese as a quality, tasty, and safe food
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`for the family.”16 Thus, it acknowledges reliance by its customers on its representations that the
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`Kraft Mac & Cheese Products are healthy and safe to eat and free from dangerous chemicals.
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`Defendant further acknowledges that phthalates are found in many food products and states that
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`Defendant is working to learn how “phthalates may be introduced into certain products and if
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`there is anything else we can do to reduce or eliminate them.”17 While the statements on the
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`kraftmacandcheese.com website are buried in the Frequently Asked Questions section, they are
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`nonetheless an admission by Defendant that it is information a reasonable consumer would
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`consider important, yet Defendant misrepresents on Product labeling that the Products are healthy
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`and contain no artificial flavors, preservatives or dyes.
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`36.
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`The Products’ affirmative misrepresentations are illustrated by the picture of the
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`Kraft Mac & Cheese Product shown below.
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`16 https://www.kraftmacandcheese.com/faq (last accessed June 1, 2021).
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`37. Defendant’s website confirms the misrepresentations made to consumers, including
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`Plaintiff and the Class, on the packaging of Kraft Mac & Cheese Products that such Products are
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`healthy, wholesome and nutritious and free from dangerous chemicals. Defendant states on the
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`website that its Kraft Mac & Cheese Products are “[t]he part of parenting that’s impossible to
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`mess up” and that is “[b]ecause Kraft Mac & Cheese is made with no artificial flavors,
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`preservatives, and dyes.”18
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`38. Based on Defendant’s decision to advertise and market its Kraft Mac & Cheese
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`Products on its packaging as healthy, nutritious, and safe for consumption, it had a duty to ensure
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`that these and other statements were true and not misleading, which it failed to do.
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`CLASS ACTION ALLEGATIONS
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`39.
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`Pursuant to the provisions of Rules 23(a), 23(b)(2), and 23(b)(3) of the Federal
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`Rules of Civil Procedure, Plaintiff brings this class action on behalf of herself and a Class defined
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`All persons who, during the applicable statute of limitation period to the date
`that the class is certified, purchased Kraft Mac & Cheese Products in the
`Massachusetts for personal and/or household use, and not for resale (the
`“Class”).
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`40.
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`The Class excludes Defendant, any parent companies, subsidiaries, and/or
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`affiliates, officers, directors, legal representatives, employees, coconspirators, all governmental
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`entities, and any judge, justice, or judicial officer presiding over this matter.
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`41. Certification of Plaintiff 5 claims for class-wide treatment is appropriate because
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`all elements of Fed. R. Civ. P. 23(a), (b)(2) and (b)(3) are satisfied. Plaintiff can prove the
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`elements of her claims on a class-wide basis using the same evidence as would be used to prove
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`those elements in an individual action alleging the same claims.
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`42. Numerosity: All requirements of Fed. R. Civ. P. 23(a)(l) are satisfied. The
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`members of the Class are so numerous and geographically dispersed that individual joinder of all
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`Class members is impracticable. While Plaintiffis informed and believes that there are thousands
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`of members of the Class, the precise number of Class members is unknown to Plaintiff. Plaintiff
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`believes that the identity of Class members is known or knowable by Defendant or can be
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`discerned through reasonable means. Class members may be identified through objective means.
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`Class members may be notified of the pendency of this action by recognized, Court-approved
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`notice dissemination methods, which may include US. mail, electronic mail, Internet postings,
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`and/or published notice.
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`43. Commonality and Predominance: All requirements of Fed. R. Civ. P. 23(a)(2)
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`and 23(b)(3) are satisfied. This action involves common questions of law and fact, which
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`predominate over any questions affecting individual Class members, including, but not limited
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`a.
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`whether Defendant engaged in the deceptive and misleading business practices
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`alleged herein;
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`b.
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`whether the misrepresentations by Defendant were likely to deceive a reasonable
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`consumer;
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`0.
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`whether Defendant knew or should have known that the Kraft Mac & Cheese
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`Products contain (or risk containing) dangerous phthalates;
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`d.
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`whether Defendant misrepresented and continues to misrepresent that the Kraft
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`Mac & Cheese Products are healthy, nutritious, wholesome, and safe for consumption when such
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`products contain (or risk containing) dangerous phthalates;
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`1 87;
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`e.
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`f.
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`g.
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`h.
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`whether Defendant breached its warranties to Plaintiff and the Class;
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`whether Defendant caused the Products to be misbranded under M.G.L. c. 94, §
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`whether the misrepresented facts are material to a reasonable consumer;
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`whether Defendant has been unjustly enriched by reason of its acts and omissions
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`complained of herein;
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`i.
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`whether Plaintiffs and members of the Class are entitled to declaratory and
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`injunctive relief pursuant to M.G.L. c. 266, §91 or otherwise within the proper equitable
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`jurisdiction of the Court; and
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`k. whether Plaintiffs and members of the Class are entitled to damages and, if so, the
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`measure of such damages.
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`44. Typicality: All requirements of Fed. R. Civ. P. 23(a)(3) are satisfied. Plaintiff is a member
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`of the Class, having purchased for personal/household use Kraft Mac & Cheese Products that
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`were made, processed and/or manufactured by Defendant. Plaintiff’s claims are typical of the
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`other Class members’ claims because, among other things, all Class members were comparably
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`injured through Defendant’s conduct.
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`45. Adequacy of Representation: All requirements of Fed. R. Civ. P. 23(a)(4) are satisfied.
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`Plaintiff is an adequate Class representative because she is a member of the Class and her interests
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`do not conflict with the interests of the other members of the Class that she seeks to represent.
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`Plaintiff is committed to pursuing this matter for the Class with the Class’ collective best interests
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`in mind. Plaintiff has retained counsel competent and experienced in complex class action
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`litigation of this type and Plaintiff intends to prosecute this action vigorously. Plaintiff, and her
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`counsel, will fairly and adequately protect the Class’ interests.
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`Predominance and Superiority: All requirements of Fed. R. Civ. P. 23(b)(3) are
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`satisfied. As described above, common issues of law or fact predominate over individual issues.
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`Resolution of those common issues in Plaintiffs individual cases will also resolve them for the
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`Class’ claims. In addition, a class action is superior to any other available means for the fair and
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`efficient adjudication of this controversy and no unusual difficulties are likely to be encountered
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`in the management of this class action. The damages or other financial detriment suffered by
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`Plaintiff and the other Class members are relatively small compared to the burden and expense
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`that would be required to individually litigate their claims against Defendant, so it would be
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`impracticable for members of the Class to individually seek redress for Defendant’s wrongful
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`conduct. Even if Class members could afford individual litigation, the court system could not.
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`Individualized litigation creates a potential for inconsistent or contradictory judgments and
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`increases the delay and expense to all parties and the court system. By contrast, the class action
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`device presents far
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`fewer management difficulties and provides the benefits of single
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`adjudication, economies of scale, and comprehensive supervision by a single court.
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`47. Cohesiveness: All requirements of Fed. R. Civ. P. 23(b)(2) are satisfied. Defendant has
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`acted, or refused to act, on grounds generally applicable to the Class making final
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`declaratory or injunctive relief appropriate.
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`COUNT I
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`gBreach of Implied Warrang Under Massachusetts Commercial Code M.G.L. c. 106 § 2-
`314, M.G.L. c. 106 § 2-315, and M.G.L. c. 106 § 2-3181
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`(On Behalf of Plaintiff and the Class)
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`Plaintiff incorporates by reference the foregoing paragraphs of the Complaint as if fully
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`stated herein.
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`Plaintiff bring this claim individually and on behalf of the members of the proposed Class
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`against Defendant.
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`50. Under the Massachusetts Uniform Commercial Code M.G.L. c. 106 § 2—101 et. seq.
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`(“Mass UCC”), including M.G.L. c. 106 §§ 2-314, 2-315 and 2-318, every sale of consumer
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`goods in Massachusetts is accompanied by both a manufacturer’s and retail seller’s implied
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`warranty that the goods are merchantable, as defined in the Mass. UCC. In addition, every sale
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`of consumer goods in Massachusetts is accompanied by both a manufacturer’s and retail
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`seller’s implied warranty of fitness when the manufacturer or retailer has reason to know that
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`the goods as represented have a particular purpose and that the buyer is relying on the
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`manufacturer’s or retailer’s skill or judgment to select or furnish suitable goods consistent with
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`that represented purpose.
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`51.
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`The Products at issue here are “consumer goods” within the meaning of the Mass UCC.
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`52.
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`Plaintiff and the Class members who purchased one or more of the Products are “retail
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`buyers” within the meaning of the Mass UCC.
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`53. Defendant is in the business of making, processing, manufacturing, producing and/or
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`distributing the Products to retail buyers, and is therefore a “manufacturer” and “seller” within
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`the meaning of the Mass UCC.
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`54. Defendant impliedly warranted to retail buyers that the Products were merchantable in
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`that they would: (a) pass without objection in the trade or industry under the contract
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`description, and (b) were fit for the ordinary purposes for which the Products are used. For a
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`consumer good to be “merchantable” under the Mass UCC, it must satisfy both of those
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`elements.
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`55. Defendant breached the implied warranties because the Products were unsafe and
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`defective. Therefore, the Products would not pass without objection in the trade or industry
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`and were not fit for the ordinary purpose for which they are used.
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`Plaintiff and Class members purchased the Products in reliance upon Defendant’s skill
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`and judgment in properly packaging and labeling the Products.
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`The Products were not altered by Plaintiff or Class members.
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`The Products were defective at the time of sale when they left the exclusive control of
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`Defendant. The defect described in this complaint was latent in the product and not
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`discoverable at the time of sale.
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`59. Defendant knew that the Product would be purchased and used without additional testing
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`by Plaintiff and Class members.
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`60. As a direct and proximate cause of Defendant’s breach of the implied warranties,
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`Plaintiff and Class members have suffered economic harm because they would not have
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`purchased the Products, or at a minimum would have purchased them at a lesser price than
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`they did, had they known the truth about the Products; namely, that they contained harmful
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`chemicals known as phthalates.
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`COUNT II
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`UNJUST ENRICHMENT
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`(On Behalf of Plaintiff and All Class Members, in the Alternative)
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`61‘.
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`Plaintiff repeats and realleges each and every allegation contained in the foregoing
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`paragraphs as if fully set forth herein.
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`Plaintiff, on behalf of herself and the Class, in the alternative, brings a claim for unjust
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`enrichment.
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`63. Defendant’s conduct violated, inter alia, state law of Massachusetts by manufacturing,
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`advertising, marketing, and selling its Products while misrepresenting material facts and by
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`furnishing unsuitable Products to the Class Members.
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`64. Defendant’s unlawful conduct as described in this Complaint allowed Defendant to
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`knowingly realize substantial revenues from selling its Products at the expense of, and to the
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`detriment or impoverishment of, Plaintiff and Class Members and to Defendant’s benefit and
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`enrichment. Defendant has thereby violated fundamental principles of justice, equity, and good
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`conscience.
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`65.
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`Plaintiff and Class Members conferred significant financial benefits and paid substantial
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`compensation to Defendant for the Products, which were not as Defendant represented them to
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`be.
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`66.
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`4 Under Massachusetts’ common law pr