Case 2:21-cv-00678-JS-AYS Document 1 Filed 02/08/21 Page 1 of 24 PageID #: 1
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`
`NICOLE STEWART, ELIZABETH
`AGRAMONTE and SUMMER
`APICELLA, on behalf of themselves
`and all others similarly situated,
`
`
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`
`
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`Case No. 21-678
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`CLASS ACTION COMPLAINT
`
`Plaintiffs,
`
`JURY TRIAL DEMANDED
`
`v.
`
`HAIN CELESTIAL GROUP, INC.,
`
`Defendant.
`
`
`CLASS ACTION COMPLAINT
`
`Plaintiffs Nicole Stewart, Elizabeth Agramonte and Summer Apicella (“Plaintiffs”), by and
`
`through their counsel, on their own behalf and on behalf of all others similarly situated, bring this
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`Class Action Complaint against Defendant Hain Celestial Group, Inc. (“Hain” or “Defendant”)
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`and allege the following facts in support of their claims against Hain based upon personal
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`knowledge, where applicable, information and belief, and the investigation of counsel:
`
`I.
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`INTRODUCTION
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`1.
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`Parents and other caregivers, including Plaintiffs, reasonably believe that the baby
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`food they purchase for their babies will be healthy, nutritious, and non-toxic, and that is what Hain
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`wanted them to think. Alarmingly, parents and Plaintiffs were wrong. A recent report by the U.S.
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`House of Representatives’ Subcommittee on Economic and Consumer Policy, Committee on
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`Oversight and Reform (“House Subcommittee”) reveals that certain brands of commercial baby
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`food – including Defendant Hain’s Earth’s Best Organic baby food (the “Tainted Baby Foods”) –
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`are tainted with significant and dangerous levels of toxic heavy metals, including arsenic, lead,
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`1
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`Case 2:21-cv-00678-JS-AYS Document 1 Filed 02/08/21 Page 2 of 24 PageID #: 2
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`cadmium, and mercury. See Baby Foods Are Tainted with Dangerous Levels of Arsenic, Lead,
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`Cadmium and Mercury, Staff Report Dated February 4, 2021, Subcommittee on Economic and
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`Consumer Policy Committee on Oversight and Reform, U.S. House of Representatives (the
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`“Congressional Report”).1 Exposure to toxic heavy metals causes permanent decreases in IQ and
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`endangers neurological development and long-term brain function, among numerous other
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`deleterious alarming conditions and problems.
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`2.
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`Plaintiffs bring this class action against Defendant Hain for deceptive business
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`practices, including misrepresentations and omissions, regarding the presence of dangerous levels
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`of toxic heavy metals and other contaminants contained within its Earth’s Best Organic baby foods
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`that Plaintiffs purchased. Plaintiffs seek injunctive and monetary relief on behalf of the proposed
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`Class including (i) requiring full disclosure of all such substances and ingredients in Defendant’s
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`marketing, advertising, and labeling; (ii) requiring testing of all ingredients and final products for
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`such substances; and (iii) restoring monies to the members of the proposed Class.
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`3.
`
`No reasonable consumer purchasing baby foods or seeing Defendant’s
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`representations in advertising would expect the baby foods to contain dangerous levels of heavy
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`metals or other undesirable toxins or contaminants. Furthermore, reasonable consumers, like
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`Plaintiffs, would consider the inclusion of dangerous levels of heavy metals or other undesirable
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`toxins or contaminants a material fact when considering what baby food to purchase.
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`4.
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`Defendant intended for consumers to rely on its representations, and reasonable
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`consumers did in fact so rely. However, Defendant’s business practices, representations and
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`omissions were deceptive, misleading, unfair, and/or false because, among other things, the
`
` 
`1 Available at https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2021-02-
`04%20ECP%20Baby%20Food%20Staff%20Report.pdf (last accessed February 8, 2021).
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`2
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`

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`Tainted Baby Foods contained undisclosed dangerous levels of toxic heavy metals or other
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`undesirable toxins or contaminants.
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`5.
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`Plaintiffs bring this proposed consumer class action individually and on behalf of
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`all other members of the Class (as defined herein), who, from the applicable limitations period up
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`to and including the present, purchased for personal/household use and not resale any of
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`Defendant’s Tainted Baby Foods. Through this action, Plaintiffs assert claims for unjust
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`enrichment, and violations of New York General Business Law §§ 349 and 350 and the Florida
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`Deceptive and Unfair Trade Practices Act, §501.201, et. seq., seeking monetary damages,
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`injunctive relief, and all other relief as authorized in equity or by law.
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`Plaintiffs
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`Parties
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`6.
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`Plaintiff Nicole Stewart is a citizen and resident of the State of New York, residing
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`in Hauppauge, New York. During the applicable statute of limitations period, Plaintiff purchased
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`Tainted Baby Foods that were manufactured and produced by Defendant Hain that have been
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`found to contain dangerous levels of toxic heavy metals, including Earth’s Best Organic Sweet
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`Potato Cinnamon Flax & Oat Baby Meal.
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`7.
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`Plaintiff Elizabeth Agramonte is a citizen and resident of the State of Florida,
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`residing in Naples, Florida. During the applicable statute of limitations period, Plaintiff purchased
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`Tainted Baby Foods that were manufactured and produced by Defendant Hain that have been
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`found to contain dangerous levels of toxic heavy metals, including Earth’s Best Organic Whole
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`Grain Oatmeal Cereal.
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`8.
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`Plaintiff Summer Apicella is a citizen and resident of the State of New York,
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`residing in Holbrook, New York. During the applicable statute of limitations, Plaintiff purchased
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`3
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`Tainted Baby Foods that were manufactured and produced by Defendant Hain that have been
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`found to contain dangerous levels of toxic heavy metals, including Earth’s Best Organic Banana
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`Raspberry & Brown Rice Pouch.
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`Defendant Hain Celestial Group, Inc.
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`9.
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`Defendant Hain Celestial Group, Inc. is a Delaware corporation with its principal
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`place of business and headquarters located at 111 Marcus Avenue, #1, Lake Success, NY 11042.
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`Defendant is a citizen of the State of New York.
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`10.
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`Defendant packages, labels, markets, advertises, formulates, manufactures,
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`distributes, and sells its Tainted Baby Foods throughout the United States, including New York
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`and Florida.
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`11.
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`Defendant’s advertised mission is to “to be the leading marketer, manufacturer and
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`seller of organic and natural better-for-you products.” Defendant repeatedly touts its commitment
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`to and use of organic and non-GMO ingredients in its products, including the Tainted Baby Foods.
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`Defendant emphasizes its ability to create and inspire “A Healthier Way of Life” for children
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`through its products.2
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`12.
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`Defendant sells baby food products under the brand name “Earth’s Best Organic.”
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`On its website, Defendant Hain describes its “Earth’s Best Organic” line of products as “time-
`
` 
`2 http://www.hain.com/company/ (last accessed February 8, 2021).
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`4
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`trusted and safe” and claims said products “are made from pure ingredients to help children grow
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`up strong and healthy:”3
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`13.
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`Defendant’s products for infants include three (3) categories of food items: Organic
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`Infant Cereal, Organic Baby Food Puree Pouches, and Organic Baby Food in Glass Jars. The
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`Organic Infant Cereal line of products includes Earth’s Best Whole Grain Organic Oatmeal Cereal,
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`Organic Rice Cereal, and Whole Grain Organic Multi-Grain Cereal. Earth’s Best makes numerous
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`baby food products with ingredients that are tainted and contain dangerous levels of toxic heavy
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`metals.
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`Jurisdiction and Venue
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`14.
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`This Court has jurisdiction over this action pursuant to the Class Action Fairness
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`Act of 2005 (“CAFA”), 28 U.S.C. §1332(d)(2), because at least one Class Member is of diverse
`
` 
`3 http://www.hain.com/brands/#c5 (last accessed February 8, 2021).
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`5
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`state citizenship from Defendant, there are more than 100 Class Members, and the aggregate
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`amount in controversy exceeds $5 million, exclusive of interest and costs.
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`15.
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`The Eastern District of New York has personal jurisdiction over Defendant as
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`Defendant is headquartered in this District and conducts substantial business in this State and in
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`this District through its headquarters, sale of products, and commercial website.
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`16.
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`Venue is proper in this District under 28 U.S.C. §1391(b) because Defendant has
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`its principal place of business in this District and because a substantial part of the events or
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`omissions giving rise to the conduct alleged in this Complaint occurred in, were directed to, and
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`were emanated from this District.
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`II.
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`FACTUAL ALLEGATIONS
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`Congressional Investigation Finds Dangerous Levels of Heavy Metals in Baby Foods
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`17.
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`On February 4, 2021, the House Subcommittee issued its Congressional Report
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`detailing its findings that heavy metals, including arsenic, cadmium, lead, and mercury (“Heavy
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`Metals”), were present in dangerously “significant levels” in numerous commercial baby food
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`products.
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`18.
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`The Food and Drug Administration (the “FDA”) and the World Health
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`Organization (“WHO”) have declared Heavy Metals dangerous to human health, particularly to
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`babies and children, who are most vulnerable to their neurotoxic effects. Even low levels of
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`exposure can cause serious and often irreversible damage to brain development. See
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`Congressional Report at 2. In fact, children’s exposure to toxic heavy metals causes, among other
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`things, permanent decreases in IQ, diminished future economic productivity, and increased risk of
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`6
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`future criminal and antisocial behavior.4 See id. at 9. The FDA cautions that infants and children
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`are at the greatest risk of harm from toxic heavy metal exposure.5
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`19.
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`On November 6, 2019, following reports alleging high levels of toxic heavy metals
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`in baby foods, the House Subcommittee requested internal documents and test results from seven
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`of the largest manufacturers of baby food in the United States, including both makers of organic
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`and conventional products. See id. One of those companies was Defendant Hain, which sells baby
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`food products under the brand name Earth’s Best Organic. See id.
`
`20.
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`Hain responded to the House Subcommittee’s requests and produced its internal
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`testing policies, test results for ingredients and/or finished products, and documentation about what
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`it did with ingredients and/or finished products that exceeded its internal testing limits. See id.
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`21.
`
`The FDA and other organizations have set rules and/or issued guidelines and
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`recommendations as to the maximum allowable or advisable and safe levels of inorganic arsenic,
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`lead, cadmium and mercury. See generally id. at Point II. The test results of Hain (Earth’s Best
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`Organic) baby foods and their ingredients eclipse those levels for inorganic arsenic, lead and
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`cadmium and, shockingly, Hain does not even test for mercury in its baby food. See id. at Findings,
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`Paragraph 1.
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`22.
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`Hain (Earth’s Best Organic) sold finished baby food products containing as much
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`as 129 ppb inorganic arsenic. Hain typically only tested its ingredients, not finished products.
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`Documents show that Hain used ingredients testing as high as 309 ppb arsenic. See id.
`
` 
`4 Miguel Rodriguez-Barranco et al., Association of Arsenic, Cadmium and Manganese Exposure
`with Neurodevelopment and Behavioral Disorders in Children: A Systematic Review and Meta-
`Analysis (April 9, 2013) –
`www.sciencedirect.com/science/article/abs/pii/S0048969713003409?via%3Dihub) (last accessed
`February 8, 2021).
`5 Food and Drug Administration, Metals and Your Food – www.fda.gov/food/chemicals-metals-
`pesticides-food/metals-and-your-food) (last accessed February 8, 2021).
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`7
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`23.
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`Hain (Earth’s Best Organic) used ingredients containing as much as 352 ppb lead.
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`Hain used many ingredients with high lead content, including 88 that tested over 20 ppb lead and
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`six that tested over 200 ppb lead. See id.
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`24.
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`Hain (Earth’s Best Organic) used 102 ingredients in its baby food that tested over
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`20 ppb cadmium. Some tested much higher, up to 260 ppb cadmium. See id.
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`25.
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`Hain (Earth’s Best Organics) does not even test for mercury in its baby food. See
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`id.
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`26.
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`Hain’s internal company standards permit dangerously high levels of toxic Heavy
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`Metals, and documents revealed that the Hain (Earth’s Best Organic) has often sold foods that
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`exceeded even its own inadequate internal standards. For example, Hain’s internal standard is 200
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`ppb for arsenic, lead and cadmium in some of its ingredients. But Hain exceeded its internal
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`policies, using ingredients containing 353 ppb lead and 309 ppb arsenic. See id. at Findings,
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`Paragraph 2. Hain attempted to justify deviations above its internal ingredient testing standards
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`based on “theoretical calculations,” even after Hain admitted to the FDA that its internal testing
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`underestimated final product toxic Heavy Metal levels. Id.
`
`27.
`
`A secret industry presentation was made to federal regulators revealing increased
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`risks of dangerous levels of toxic heavy metals in baby foods. On August 1, 2019, the FDA
`
`received a secret slide presentation from Hain (Earth’s Best Organic) which revealed (at Findings,
`
`Paragraph 4) that:
`
`Corporate policies to test only ingredients, not final products, underrepresent the
`levels of toxic heavy metals in baby foods. In 100% of the Hain baby foods tested,
`inorganic arsenic levels were higher in the finished baby food than the company
`estimated they would be based on individual ingredient testing. Inorganic arsenic
`was between 28% and 93% higher in the finished products.
`
`Many of Hain’s baby foods were tainted with high levels of inorganic arsenic – half
`of its brown rice baby foods contained over 100 ppb inorganic arsenic; its average
`
`8
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`brown rice baby food contained 97.62 ppb inorganic arsenic; and
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`Naturally occurring toxic heavy metals may not be the only problem causing the
`unsafe levels of toxic heavy metals in baby foods; rather, baby food producers like
`Hain may be adding ingredients that have high levels of toxic heavy metals into
`their products, such as vitamin/mineral pre-mix.
`
`
`Hain’s secret presentation made clear that ingredient testing is inadequate, and that only final
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`product testing can measure the true danger posed by its baby foods.
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`28.
`
`To this day, baby foods containing dangerous levels of toxic Heavy Metals bear no
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`label or warning to parents. But the Congressional Report makes clear that this is unacceptable
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`and deceptive.
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`29.
`
`As a result of its studies of toxic Heavy Metal levels in baby food, the House
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`Subcommittee has recommended that parents should avoid baby foods that contain ingredients
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`testing high in toxic Heavy Metals, such as rice products. See id. at Findings, Paragraph 5.
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`30.
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`Baby food manufacturers hold a special position of public trust. Consumers believe
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`that they would not sell products that are unsafe. Consumers also believe that the federal
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`government would not knowingly permit the sale of unsafe baby food. As the House
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`Subcommittee’s Report reveals, baby food manufacturers (including Hain (Earth’s Best Organic))
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`have violated the public trust. See id. at Findings, Paragraph 6.
`
`31.
`
`Hain does not regularly test finished baby food products for inorganic arsenic
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`content. It typically only test ingredients. However, when Hain did test a small sample of finished
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`product, it found 129 ppb inorganic arsenic.6
`
`32.
`
`The House Subcommittee’s review of the ingredient test results reveals that Hain
`
` 
`6 Hain, PowerPoint Presentation to FDA: FDA Testing Result Investigation (August 1, 2019)
`https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2/pdf (last accessed
`February 8, 2021).
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`9
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`routinely used ingredients with high levels of arsenic. Hain used brown rice flour that had tested
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`at 309 ppb arsenic.7 Hain likewise used a vitamin pre-mix containing 223 ppb arsenic, and raisin
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`and wheat flour containing 200 ppb arsenic.8 The testing data shows that Hain used at least 24
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`ingredients after testing found that they contained more than 100 ppb arsenic, its already-
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`dangerously-high internal standard for most ingredients.9
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`33.
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`Defendant sells baby food products under the brand name “Earth’s Best Organic.”
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`On its website, Defendant Hain describes its “Earth’s Best Organic” line of products as “time-
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`trusted and safe” and claims said products “are produced without the use of potentially harmful
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`pesticides.”
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`34.
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`Based on Defendant’s decision to advertise, label, and market its Tainted Baby
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`Foods as healthy, nutritious, and safe for consumption, it had a duty to ensure that these statements
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`were true and not misleading. As such, Defendant knew or should have known the Tainted Baby
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`Foods included undisclosed dangerous levels of Heavy Metals, and that these toxins can
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`accumulate over time.
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`35.
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`The Tainted Baby Foods are available at numerous retail and online outlets. The
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`Tainted Baby Foods are widely advertised.
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`36.
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`As discussed above, the marketing of the Tainted Baby Foods also fails to disclose
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`they contain or are at risk of containing dangerous levels of Heavy Metals or other undesirable
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`toxins or contaminants. Defendant intentionally omitted these contaminants in order to induce and
`
` 
`7 See Hain, Raw Material Pre-Shipment Test Data History (December 11, 2019)
`https://oversight.house.gove/sites/democrats.oversight.house.gove/files/3_0.pdf (last accessed
`February 8, 2021).
`8 See id.
`9 See Hain, Raw Material Pre-Shipment Test Data History (December 11, 2019)
`https://oversight.house.gove/sites/democrats.oversight.house.gove/files/3_0.pdf (last accessed
`February 8, 2021.).
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`10
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`mislead reasonable consumers to purchase its Tainted Baby Foods.
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`III. CLASS ACTION ALLEGATIONS
`
`37.
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`Pursuant to the provisions of Rules 23(a), 23(b)(2), and 23(b)(3) of the Federal
`
`Rules of Civil Procedure, Plaintiffs bring this class action on behalf of themselves and a nationwide
`
`Class defined as:
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`All persons who, during the applicable statute of limitation period to the
`present, purchased Defendant’s Tainted Baby Foods in the United States for
`personal/household use, and not for resale (the “Class”).
`
`38.
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`Plaintiffs Stewart and Apicella also seek to represent a subclass (the “New York
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`Subclass”), defined as follows:
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`All persons who, during the applicable statute of limitation period to the
`present, purchased Defendant’s Tainted Baby Foods in New York for
`personal/household use, and not for resale.
`
`39.
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`In addition, Plaintiff Agramonte also seeks to represent a subclass (the “Florida
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`Subclass”), defined as follows:
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`All persons who, during the applicable statute of limitation period to the
`present, purchased Defendant’s Tainted Baby Foods
`in Florida for
`personal/household use, and not for resale.
`
`40.
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`Certification of Plaintiffs’ claims for class-wide treatment is appropriate because
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`all elements of Fed. R. Civ. P. 23(a), (b)(2)-(3) are satisfied. Plaintiffs can prove the elements of
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`their claims on a class-wide basis using the same evidence as would be used to prove those
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`elements in an individual action alleging the same claims.
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`41.
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`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 Plaintiffs are informed and believe that there are thousands
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`of members of the Class, the precise number of Class members is unknown to Plaintiffs. Plaintiffs
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`believe that the identity of Class members is known or knowable by Hain or can be discerned
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`through reasonable means. Class members may be identified through objective means. Class
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`members may be notified of the pendency of this action by recognized, Court-approved notice
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`dissemination methods, which may include U.S. mail, electronic mail, Internet postings, and/or
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`published notice.
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`42.
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`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, without limitation:
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`a. whether Defendant engaged in the deceptive and misleading business practices
`
`alleged herein;
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`b. whether Defendant knew or should have known that the Tainted Baby Foods
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`contained dangerous levels of Heavy Metals;
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`c. whether Defendant represented and continues to represent that the Tainted Baby
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`Foods are healthy, nutritious, made from the best ingredients, and safe for
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`consumption;
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`d. whether Defendant represented and continues
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`to represent
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`that
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`the
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`manufacturing of its Tainted Baby Foods is subjected to rigorous quality
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`standards;
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`e. whether Defendant failed to disclose that the Tainted Baby Foods contained
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`dangerous levels of Heavy Metals;
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`f. whether Defendant had knowledge that those representations were false,
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`deceptive, and misleading and were unjustly enriched by their actions;
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`g. whether Defendant continues to disseminate those representations despite
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`knowledge that the representations are false, deceptive, and misleading;
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`h. whether the misrepresented and/or omitted facts are material to a reasonable
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`consumer;
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`i. whether Defendant violated N.Y. Gen. Bus. Law § § 349 and 350;
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`j. whether Defendant violated Florida’s Deceptive and Unfair Trade Practices
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`Act;
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`k. whether Plaintiffs and members of the Class were injured and suffered
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`damages;
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`l. whether Defendant’s misconduct proximately caused Plaintiffs’ and the Class
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`members’ injuries; and
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`m. whether Plaintiffs and members of the Class are entitled to damages and, if so,
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`the measure of such damages.
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`43.
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`Typicality: All requirements of Fed. R. Civ. P. 23(a)(3) are satisfied. Plaintiffs are
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`members of the Nationwide Class and New York or Florida Subclasses, having purchased for
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`personal/household use Tainted Baby Food products that were manufactured by Defendant.
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`Plaintiffs’ claims are typical of the other Class members’ claims because, among other things, all
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`Class members were comparably injured through Defendant’s conduct.
`
`44.
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`Adequacy of Representation: All requirements of Fed. R. Civ. P. 23(a)(4) are
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`satisfied. Plaintiffs are adequate Class representatives because they are members of the
`
`Nationwide Class and New York or Florida Subclasses and their interests do not conflict with the
`
`interests of the other members of the Class that they seek to represent. Plaintiffs are committed to
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`pursuing this matter for the Class with the Class’s collective best interests in mind. Plaintiffs have
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`retained counsel competent and experienced in complex class action litigation of this type and
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`Plaintiffs intend to prosecute this action vigorously. Plaintiffs, and their counsel, will fairly and
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`adequately protect the Class’s interests.
`
`45.
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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’s 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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`Plaintiffs 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
`
`device presents far fewer management difficulties and provides the benefits of single adjudication,
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`economies of scale, and comprehensive supervision by a single court.
`
`46.
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`Cohesiveness: All requirements of Fed. R. Civ. P. 23(b)(2) are satisfied. Defendant
`
`has acted, or refused to act, on grounds generally applicable to the Class making final declaratory
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`or injunctive relief appropriate.
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`IV. CAUSES OF ACTION
`
`COUNT I
`Violations of New York Consumer Law for Deceptive Acts and Practices
`N.Y. Gen. Bus. Law § 349
`(On Behalf of Plaintiffs Stewart and Apicella and the New York Subclass)
`
`Plaintiffs Stewart and Apicella, individually and on behalf of the New York
`
`47.
`
`Subclass, repeat and re-allege the allegations contained in paragraphs 1 through 46 as though
`
`fully set forth herein.
`
`48.
`
`New York General Business Law (“NYGBL”) § 349 prohibits deceptive acts or
`
`practices in the conduct of any business, trade, or commerce, or in the furnishing of any service
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`in the state of New York.
`
`49.
`
`By reason of the conduct alleged herein, Defendant engaged in unlawful practices
`
`within the meaning of the NYGBL § 349. The conduct alleged herein is a “business practice”
`
`within the meaning of the NYGBL § 349, and the deception occurred in part within New York
`
`State.
`
`50.
`
`Defendant’s baby food contains unhealthy and dangerous levels of Heavy
`
`Metals. Defendant knew or should have known that its baby food should not contain these levels
`
`of Heavy Metals and/or at the amounts found therein and that by manufacturing and providing
`
`for commercial sale baby food with toxic levels of Heavy Metals Plaintiffs Stewart and Apicella
`
`and the New York Subclass members were not getting healthy and/or nutritious food to help their
`
`children grow strong.
`
`51.
`
`Plaintiffs Stewart and Apicella and the New York Subclass members would not
`
`have purchased the baby food at issue for their children had they known the truth about the
`
`presence of dangerous levels of toxic Heavy Metals. There is no other use for Defendant’s tainted
`
`products.
`
`15
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`

`

`Case 2:21-cv-00678-JS-AYS Document 1 Filed 02/08/21 Page 16 of 24 PageID #: 16
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`52.
`
`Defendant violated the NYGBL § 349 by using dangerous levels of toxic Heavy
`
`Metals and failing to properly represent, both by affirmative conduct and by omission, the
`
`nutritional value of Defendant’s baby foods.
`
`53.
`
`If Defendant had not sold baby food tainted with Heavy Metals, Plaintiffs Stewart
`
`and Apicella and the other New York Subclass members would not have suffered the extent of
`
`damages caused by Defendant’s sales.
`
`54.
`
`Defendant’s practices, acts, policies and course of conduct violate NYGBL §
`
`349 in that, among other things, Defendant actively and knowingly misrepresented or omitted
`
`disclosure of material information to Plaintiffs Stewart and Apicella and the New York Subclass
`
`members at the time they purchased the Tainted Baby Foods, including the fact that Defendant’s
`
`products contained dangerous levels of toxic Heavy Metals; and Defendant failed to disclose and
`
`give timely warnings or notices regarding the presence of dangerous levels of toxic Heavy Metals
`
`in its baby food products that were purchased by Plaintiffs and the New York Subclass members.
`
`55.
`
`The aforementioned conduct constitutes an unconscionable commercial practice
`
`in that Defendant has, by the use of false statements and/or material omissions, failed to properly
`
`represent and/or concealed the presence of unacceptable dangerous levels of Heavy Metals in its
`
`baby foods.
`
`56.
`
`Members of the public, including Plaintiffs Stewart and Apicella and the
`
`members of the New York Subclass, were deceived by and relied upon Defendant’s affirmative
`
`misrepresentations and failures to disclose.
`
`57.
`
`Such acts and practices by Defendant are and were likely to mislead a reasonable
`
`consumer purchasing baby food from Defendant. Said acts and practices are material. The sales of
`
`Defendant’s Tainted Baby Foods in New York through such means occurring in New York were
`
`16
`
`

`

`Case 2:21-cv-00678-JS-AYS Document 1 Filed 02/08/21 Page 17 of 24 PageID #: 17
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`consumer-oriented acts and thereby fall under the New York consumer protection statute,
`
`NYGBL § 349.
`
`58.
`
`As a direct and proximate cause of Defendant’s conduct, Plaintiffs Stewart and
`
`Apicella and New York Subclass members suffered damages as alleged above. Plaintiffs Stewart
`
`and Apicella also seek injunctive relief as described herein.
`
`59.
`
`In addition to or in lieu of actual damages, because of the injury, Plaintiffs
`
`Stewart and Apicella and the New York Subclass members seek statutory damages for each injury
`
`and violation which has occurred.
`
`COUNT II
`Violations of New York Consumer Law for Deceptive Acts and Practices
`N.Y. Gen. Bus. Law § 350
`(On Behalf of Plaintiffs Stewart and Apicella and the New York Subclass)
`
`Plaintiffs Stewart and Apicella, individually and on behalf of the New York
`
`60.
`
`Subclass, repeat and re-allege the allegations contained in paragraphs 1 through 46 as though
`
`fully set forth herein.
`
`61.
`
`NYGBL § 350 prohibits false advertising in the conduct of any business, trade,
`
`or commerce, or in the furnishing of any service in the state of New York.
`
`62.
`
`By reason of the conduct alleged herein, Defendant engaged in unlawful practices
`
`within the meaning of the NYGBL § 350. The conduct alleged herein is a “business practice”
`
`within the meaning of the NYGBL § 350, and the false advertising occurred in part within New
`
`York State.
`
`63.
`
`Defendant’s baby food contains unhealthy and dangerous levels of Heavy
`
`Metals. Defendant knew or should have known that its baby food should not contain these Heavy
`
`Metals and/or at the amounts found therein and that by manufacturing and providing for
`
`commercial sale baby food with toxic levels of Heavy Metals Plaintiffs Stewart and Apicella and
`
`17
`
`

`

`Case 2:21-cv-00678-JS-AYS Document 1 Filed 02/08/21 Page 18 of 24 PageID #: 18
`
`the New York Subclass members were not getting healthy and/or nutritious food to help their
`
`children grow strong.
`
`64.
`
`Plaintiffs Stewart and Apicella and the New York Subclass members would not
`
`have purchased the baby food at issue for their children had they known the truth about the
`
`presence of dangerous levels of toxic Heavy Metals. There is no other use for Defendant’s tainted
`
`products.
`
`65.
`
`Defendant violated the NYGBL § 350 by failing to properly represent, both by
`
`affirmative conduct and by omission, the nutritional value and safety of Defendant’s Tainted
`
`Baby Foods.
`
`66.
`
`If Defendant had not sold baby food tainted with dangerous levels of Heavy
`
`Metals, Plaintiffs Stewart and Apicella and the other New York Subclass members would not
`
`have suffered the extent of damages caused by Defendant’s sales.
`
`67.
`
`Defendant’s practices, acts, policies and course of conduct violate NYGBL §
`
`350 in that, among other things, Defendant actively and knowingly misrepresented or omitted
`
`disclosure of material information to Plaintiffs Stewart and Apicella and the New York Subclass
`
`members at the time they purchased the Tainted Baby Foods, including the f