Case 2:21-cv-01621-JMA-ARL Document 1 Filed 03/26/21 Page 1 of 17 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF NEW YORK
`
`and Marla Micks,
`Kendra Anderson
`individually and on behalf of all others similarly
`situated,
`
`2:21-cv-01621
`
`Plaintiffs,
`
`
`
`- against -
`
`Class Action Complaint
`
`The Hain Celestial Group, Inc.,
`
`Defendant
`
`
`
`Jury Trial Demanded
`
`Plaintiffs allege upon information and belief, except for allegations pertaining to plaintiffs,
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`which are based on personal knowledge:
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`1.
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`The Hain Celestial Group, Inc. (“Defendant”) manufactures, distributes, labels and
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`sells baby food products in numerous forms, i.e., pouches, purees, snacks, etc., under its Earth’s
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`Best Organic brand, which consist mainly of rice and other ingredients. (“Products”).
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`2.
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`Parents trust manufacturers like Defendant to sell baby food that is safe, nutritious,
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`and free from harmful toxins, contaminants, and chemicals.
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`3.
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`They expect the food they feed their infants and toddlers to be free from heavy
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`metals, substances known to have significant and dangerous health consequences.
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`4. However, consumers lack the scientific knowledge necessary to determine whether
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`such products contain heavy metals, relying on Defendant to truthfully disclose whether their
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`products pose a potential risk to children.
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`5. A recent report by the U.S. House of Representatives’ Subcommittee on Economic
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`and Consumer Policy, Committee on Oversight and Reform, reveals that Defendant has violated
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`the trust of this nation’s parents.
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`6.
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`The Subcommittee’s investigation was spurred by “reports alleging high levels of
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`toxic heavy metals in baby foods” and the knowledge that “[e]ven low levels of exposure can cause
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`serious and often irreversible damage to brain development.”
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`7.
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`The report revealed that “[i]nternal company standards permit dangerously high
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`levels of toxic heavy metals, and… that the manufacturers have often sold foods that exceeded
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`these levels.”
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`8.
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`The Food and Drug Administration (“FDA”) and the World Health Organization
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`(“WHO”) declared arsenic, lead, cadmium, and mercury “dangerous to human health, particularly
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`to babies and children, who are most vulnerable to their neurotoxic effects.”1
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`9.
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`These four heavy metals “can harm a baby’s developing brain and nervous system”
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`and cause negative impacts such as the “permanent loss of intellectual capacity and behavioral
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`problems like attention-deficit hyperactivity disorder (ADHD).”2
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`10. Even in trace amounts, these heavy metals can alter the developing brain and erode
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`a child’s IQ and increase risk of future criminal and antisocial behavior in children.3
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`11. Defendant’s front and back labels tout its health attributes through pictures of fresh
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`raspberries, bananas and rice, and the statements, “Earth’s Best Organic,” “Organic Banana
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`Raspberry & Brown Rice,” “Fruit & Grain Puree,” “Non-GMO Project Verified” and “USDA
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`Organic.”4
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`
`1 See Baby Foods Are Tainted with Dangerous Levels of Arsenic, Lead, Cadmium, and Mercury, Staff Report (“House
`Report”), Subcommittee on Economic and Consumer Policy of the Committee on Oversight and Reform, at 2,
`February 4, 2021, available at https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2021-02-
`04%20ECP%20Baby%20Food%20Staff%20Report.pdf.
`2 Healthy Babies Bright Futures Report, at 6.
`3 Id.
`4 This product is an example of the numerous, similarly labeled products which are believed to contain high levels of
`heavy metals.
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`2
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`12. The ingredient list gives consumers no cause for concern:
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`INGREDIENTS: ORGANIC BANANAS, WATER, ORGANIC
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`RASPBERRY, ORGANIC WHOLE GRAIN BROWN RICE
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`FLOUR, CITRIC ACID.
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`13. However, nowhere in the labeling, advertising, statements, warranties, and/or
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`packaging does Defendant disclose that the Product contains significant, non-trace levels of
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`arsenic, mercury, lead, cadmium, and perchlorate5 – all known to pose health risks to humans and
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`especially infants.
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`A. Arsenic
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`14. When children are exposed to arsenic early in life, it causes “cognitive deficits among
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`school-age children exposed early in life, and neurological problems in adults who were exposed
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`to arsenic-poisoned milk as infants.”6
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`15. Arsenic exposure also creates a risk of “respiratory, gastrointestinal, hematological,
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`hepatic, renal, skin, neurological and immunological effects, as well as damaging effects on the
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`central nervous system.”7
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`16. The FDA has set the maximum allowable arsenic levels in bottled water at 10 ppb of
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`inorganic arsenic and is also considering limiting the action level or arsenic in rice cereal for infants
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`to 100 ppb.8
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`17. The FDA has set 100 ppb inorganic arsenic as the limit in infant rice cereal, though
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`Defendant’s internal standard is 15% higher than the FDA limit, at 115 ppb.
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`18. Defendant sold baby food products with as much as 129 ppb inorganic arsenic.
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`19. Documents show that Hain used ingredients testing as high as 309 ppb arsenic.
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`20.
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`In all baby food products tested by Defendant, inorganic arsenic levels were higher
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`than estimated based on individual ingredient testing.
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`21.
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`Inorganic arsenic was between 28% and 93% more in the finished products than it
`
`
`5 Healthy Babies Bright Future, What’s In My Baby’s Food?, What's In My Baby's Food?, (January 10, 2021).
`6 Id.
`7 House Report, at 10 (quoting Miguel Rodríguez-Barranco et al., Association of Arsenic, Cadmium and Manganese
`Exposure with Neurodevelopment and Behavioural Disorders in Children: A Systematic Review and Meta-Analysis
`(June 1, 2013) (online at https://pubmed.ncbi.nlm.nih.gov/23570911/)).
`8 FDA, Draft Guidance for Industry: Inorganic Arsenic in Rice Cereals for Infants: Action Level (Apr.2016),
`https://www.fda.gov/downloads/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/UCM49315
`2.pdf.
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`4
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`was in the ingredients.
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`22. Half of Defendant’s brown rice baby foods had over 100 ppb inorganic arsenic; and
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`the average brown rice baby food had 97.62 ppb inorganic arsenic.
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`B. Lead
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`23. Lead exposure can seriously harm children’s brain and nervous systems and is
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`associated with a range of negative health outcomes including “behavioral problems, decreased
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`cognitive performance, delayed development, and reduced postnatal growth.”9
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`24. Young children are particularly vulnerable to lead because the physical and
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`behavioral effects of lead occur at lower exposure levels in children than in adults.
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`25.
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`In children, low levels of lead exposure have been linked to damage to the central
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`and peripheral nervous system, learning disabilities, shorter stature, impaired hearing, and
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`impaired formation and function of blood cells.10
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`26. EPA has set the maximum contaminant level goal for lead in drinking water at zero
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`because lead is toxic metal that can be harmful to human health even at low exposure levels.
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`27. Lead can bioaccumulate in the body over time, leading to the development of chronic
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`poisoning, cancer, developmental, and reproductive disorders, as well as serious injuries to the
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`nervous system, and other organs and body systems.11
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`28. The Agency for Toxic Substances and Disease Registry states that there may be no
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`threshold for lead with regards to developmental impact on children.
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`29. Defendant used ingredients with up to 352 ppb lead.
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`30. Defendant’s ingredients had high lead content.
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`
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`9 House Report, at 11.
`10 See https://www.cdc.gov/nceh/lead/prevention/pregnant.htm.
`11 See https://www.epa.gov/ground-water-and-drinking-water/basic-information-about-lead-drinkingwater.
`5
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`31. 88 products were determined to have more than 20 ppb lead while six had greater
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`than 200 ppb lead.
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`C. Mercury
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`32. Mercury increases the risk for cardiovascular disease and can cause vision,
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`intelligence, and memory problems for children exposed in utero.
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`33. Mercury has been linked to higher risk of lower IQ scores and intellectual disability.
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`34. The FDA has set a maximum mercury level in drinking water to 2 ppb.
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`35. Defendant does not even test for mercury.
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`D. Cadmium
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`36. Cadmium is linked to neurotoxicity, anemia, liver disease, cancer, and kidney, bone,
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`and heart damage.
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`37. Health and environmental regulatory bodies have set maximum cadmium levels in
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`drinking water to 3 and 5 ppb.
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`38. Defendant used 102 ingredients in its baby foods that tested over 20 ppb cadmium.
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`Some tested much higher, up to 260 ppb cadmium.
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`II. Defendant’s Standards Permit Dangerously High Levels of Toxic Heavy Metals
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`39. Defendant’s internal company standards permit dangerously high levels of toxic
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`heavy metals.
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`40. Though Defendant conducts some testing for these substances, the products are sold
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`to consumers regardless of the level of heavy metals they contain.
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`41. Defendant’s internal standard for arsenic, lead, and cadmium in some of its
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`ingredients is 200 ppb, higher than is considered safe for small children.
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`42. However, Defendant failed to abide by its internal policies, and used ingredients
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`containing 353 ppb lead and 309 ppb arsenic.
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`43. Defendant rationalized the high level of heavy metals in its products as “theoretical
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`calculations,” even though it knew – since at least August 2019 – that it underestimated final
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`product toxic heavy metal levels.
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`44.
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`It is believed that Defendant is also adding ingredients with already high levels of
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`toxic heavy metals, like vitamin/mineral pre-mix.
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`45. Defendant only tested its ingredients, not finished products.
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`46. Defendant knows that its customers trust the quality of its products and that they
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`expect Defendant’s products to be free of heavy metals.
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`47.
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`It also knows that all consumers seek out and wish to purchase baby foods that will
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`not cause harm or risk of harm, and that assurances of quality induces purchasers to pay more than
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`they otherwise would.
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`48. No reasonable consumer seeing Defendant’s marketing would expect the
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`contaminated baby foods to contain heavy metals or other undesirable toxins or contaminants.
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`49. Reasonable consumers, like Plaintiffs, would consider heavy metals at non-trace
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`levels a material fact when considering what baby food to purchase.
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`50. Defendant knows consumers value assurances the products they buy do not contain
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`certain ingredients and/or components.
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`Defendant’s marketing tells consumers the positive attributes of its Products:
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`•
`
`•
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`
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`At Earth's Best Organic brand, we take great care in every step of the baby food
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`process to bring you THE BEST FROM THE EARTH;
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`Made with wholesome ingredients from our family of certified organic farmers;
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`Case 2:21-cv-01621-JMA-ARL Document 1 Filed 03/26/21 Page 8 of 17 PageID #: 8
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`•
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`•
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`•
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`Certified USDA Organic products;
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`Excellent source of vitamin C;
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`Kosher.
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`51. Defendant also assures consumers its Products it will not contain other ingredients
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`and/or components:
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`•
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`•
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`•
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`•
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`•
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`No GMO ingredients
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`No artificial flavors, colors or preservatives
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`Non-BPA packaging
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`No wheat and no added salt or sugar
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`No artificial flavors, colors, preservatives, growth hormones, antibiotics, steroids
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`or potentially harmful pesticides or herbicides
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`52. Since Defendant knows consumers dislike the items listed, it is expected they also
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`know consumers will dislike heavy metals at non-trace levels in the Products, which have harmful
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`effects on children.
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`53. Defendant misrepresented the Products through affirmative statements, half-truths,
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`and omissions.
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`54. Defendant sold more of the Products and at a higher price than it would have in
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`absence of this misconduct, resulting in additional profits at the expense of consumers.
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`55. Had Plaintiffs and the proposed class members known the truth, they would not have
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`bought the Products or would have paid less for it.
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`56. As a result of the false and misleading representations, the Products are sold at a
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`premium price, approximately no less than no less than $1.49 for pouches of 4.2 OZ, excluding
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`8
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`tax, compared to other similar products represented in a non-misleading way, and higher than it
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`would be sold for absent the misleading representations and omissions.
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`Jurisdiction and Venue
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`57.
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`Jurisdiction is proper pursuant to Class Action Fairness Act of 2005 (“CAFA”). 28
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`U.S.C. § 1332(d)(2).
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`58. Under CAFA, district courts have original federal jurisdiction over class actions
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`involving (1) an aggregate amount in controversy of at least $5,000,000; and (2) minimal diversity.
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`59. Plaintiff Kendra Anderson is a citizen of Colorado.
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`60. Plaintiff Marla Micks is a citizen of Illinois.
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`61. Defendant The Hain Celestial Group, Inc. is a Delaware corporation with a principal
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`place of business in Lake Success, Nassau County, New York.
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`62. Diversity exists because Plaintiffs and Defendant are citizens of different states.
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`63. Upon information and belief, sales of the Products and any available statutory and
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`other monetary damages, exceed $5 million during the applicable statutes of limitations, exclusive
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`of interest and costs.
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`64. This court has personal jurisdiction over Defendant because it conducts and transacts
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`business, contracts to provide and/or supply and provides and/or supplies services and/or goods
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`within New York.
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`65. Venue is further supported because many class members reside in this District.
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`66. A substantial part of events and omissions giving rise to the claims occurred in this
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`District.
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`Parties
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`67. Plaintiff Kendra Anderson is a citizen of Aurora, Arapahoe County, Colorado.
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`68. Plaintiff Marla Micks is a citizen of Orland Park, Cook County, Illinois.
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`69. Defendant The Hain Celestial Group, Inc. is a Delaware corporation with a principal
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`place of business in Lake Success, New York, Nassau County.
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`70. Defendant’s Earth’s Best Organic is a leading baby food brand.
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`71. The use of the word “Organic” in the brand name is a representation a product will
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`not contain pesticides and GMOs.
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`72. Though “Earth’s Best” may be puffery, it still is understood as giving assurances to
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`consumers its Products will not contain dangerous levels of heavy metals.
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`73.
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`It is reasonable for consumers to also expect organic to mean a product will not
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`contain dangerously high levels of heavy metals.
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`74. The Products are sold to consumers from retail and online stores of third-parties
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`across the country.
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`75. Plaintiff Anderson bought the Earth’s Best Organic Banana Raspberry & Brown Rice
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`Pouch on one or more occasions within the statute of limitations for each cause of action alleged,
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`from one or more locations, such as Walmart, 13420 W Coal Mine Ave, Littleton, CO 80127,
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`numerous times, including within the last week, for the consumption of children.
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`76. Plaintiff Micks bought the Product on one or more occasions within the statute of
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`limitations for each cause of action alleged, from one or more locations, such as Target, 15850 S
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`94th Ave Orland Park, IL 60462 and Meijer, South Suburbs, 15701 71st Ct, Orland Park, IL 60462,
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`consistently over the past six months, among other times, for the consumption of children.
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`77. Plaintiffss bought the Products at or exceeding the above-referenced price because
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`they wanted to buy a product with the qualities and attributes represented herein and relied upon
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`what the label indicated and omitted.
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`78. Plaintiffs would not have purchased the Products in the absence of Defendant’s
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`misrepresentations and omissions.
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`79. The Products were worth less than what Plaintiffs paid and they would not have paid
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`as much absent Defendant's false and misleading statements and omissions.
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`80. Plaintiffs intend to, seek to, and will purchase the Products again when they can do
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`so with the assurance that Products' labeling are consistent with its composition.
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`Class Allegations
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`81. The class will consist of all purchasers of the Products who reside in Colorado and
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`Illinois during the applicable statutes of limitations.
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`82. Plaintiffs seek class-wide injunctive relief based on Rule 23(b) in addition to a
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`monetary relief class.
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`83. Common questions of law or fact predominate and include whether Defendant’s
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`representations were and are misleading and if plaintiffs and class members are entitled to
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`damages.
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`84. Plaintiffs' claims and basis for relief are typical to other members because all were
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`subjected to the same unfair and deceptive representations and actions.
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`85. Plaintiffs are adequate representatives because their interests do not conflict with
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`other members.
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`86. No individual inquiry is necessary since the focus is only on Defendant’s practices
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`and the class is definable and ascertainable.
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`87.
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`Individual actions would risk inconsistent results, be repetitive and are impractical
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`11
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`to justify, as the claims are modest relative to the scope of the harm.
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`88. Plaintiffs' counsel is competent and experienced in complex class action litigation
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`and intends to protect class members’ interests adequately and fairly.
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`89. Plaintiffs seek class-wide injunctive relief because the practices continue.
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`Colorado Consumer Protection Act (“CCPA”), Colo. Rev. Stat. § 6-1-101 et seq.
`(Consumer Protection Statutes)
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`90. Plaintiffs incorporate by reference all preceding paragraphs.
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`91. Plaintiffss and class members desired to purchase products without high levels of
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`toxic heavy metals.
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`92. Defendant’s acts and omissions are not unique to the parties and have a broader
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`impact on the public.
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`93. Defendant misrepresented
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`the Products
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`through
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`its statements, omissions,
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`ambiguities, half-truths and/or actions.
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`94. Defendant intended that Plaintiffs and the Class rely upon Defendant’s deceptive
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`conduct, and a reasonable person would in fact be misled by this deceptive conduct.
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`95. Defendant knew or should have known that its representations and omissions about
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`the Products’ contents were material and likely to mislead consumers.
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`96. Plaintiffs and class members would not have purchased the Products or paid as much
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`if the true facts had been known, suffering damages.
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`Illinois Consumer Fraud and Deceptive Business Practices Act
`(“ICFA”), 815 ILCS 505/1, et seq.
`(Consumer Protection Statutes)
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`97. Plaintiffs incorporate by reference all preceding paragraphs.
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`98. Plaintiffs and class members desired to purchase products without high levels of
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`toxic heavy metals.
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`99. Defendant’s acts and omissions are not unique to the parties and have a broader
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`impact on the public.
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`100. Defendant misrepresented
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`the Product
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`through
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`its statements, omissions,
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`ambiguities, half-truths and/or actions.
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`101. Defendant intended that Plaintiffs and the Class rely upon Defendant’s deceptive
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`conduct, and a reasonable person would in fact be misled by this deceptive conduct.
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`102. Defendant knew or should have known that its representations and omissions about
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`the Products’ contents were material and likely to mislead consumers.
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`103. Plaintiffs and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Breaches of Express Warranty, Implied Warranty of Merchantability
`and Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
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`104. Plaintiffs incorporate by reference all preceding paragraphs.
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`105. The Products were manufactured, labeled and sold by Defendant and warranted to
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`Plaintiffs and class members that it possessed substantive, functional, nutritional, qualitative,
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`compositional, organoleptic, sensory, physical and health-related attributes which it did not.
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`106. The absence of toxic heavy metals was impliedly warranted because of the numerous
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`health-related statements.
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`107. Defendant had a duty to disclose and/or provide non-deceptive descriptions and
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`marketing of the Products.
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`108. This duty is based on Defendant’s outsized role in the market for this type of Product.
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`109. Plaintiffs provided or will provide notice to Defendant, its agents, representatives,
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`retailers and their employees.
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`110. Defendant received notice and should have been aware of these misrepresentations
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`due to numerous complaints by consumers to its main office over the past several years regarding
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`the Products.
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`111. The Products did not conform to its affirmations of fact and promises due to
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`Defendant’s actions and were not merchantable.
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`112. Plaintiffs and class members would not have purchased the Products or paid as much
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`if the true facts had been known, suffering damages.
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`Negligent Misrepresentation
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`113. Plaintiffs incorporate by reference all preceding paragraphs.
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`114. Defendant had a duty to truthfully represent the Products, which it breached.
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`115. This duty is based on Defendant’s position, holding itself out as having special
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`knowledge and experience in the sale of the product type.
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`116. The representations took advantage of consumers’ cognitive shortcuts made at the
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`point-of-sale and their trust in Defendant, a well-known and respected brand or entity in this sector.
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`117. Plaintiffs and class members reasonably and justifiably relied on these negligent
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`misrepresentations and omissions, which served to induce and did induce, the purchase of the
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`Products.
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`118. Plaintiffs and class members would not have purchased the Products or paid as much
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`if the true facts had been known, suffering damages.
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`Fraud
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`119. Plaintiffs incorporate by reference all preceding paragraphs.
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`120. Defendant misrepresented and/or omitted the attributes and qualities of the Products.
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`121. Defendant’s fraudulent intent is evinced by its failure to accurately disclose the issues
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`described herein, when it knew not doing so would mislead consumers.
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`122. Defendant was aware of these issues for almost two years yet failed to inform
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`consumers.
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`123. Plaintiffs and class members would not have purchased the Products or paid as much
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`if the true facts had been known, suffering damages.
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`Unjust Enrichment
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`124. Plaintiffs incorporate by reference all preceding paragraphs.
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`125. Defendant obtained benefits and monies because the Products were not as
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`represented and expected, to the detriment and impoverishment of plaintiffs and class members,
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`who seek restitution and disgorgement of inequitably obtained profits.
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`Jury Demand and Prayer for Relief
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`Plaintiffs demand a jury trial on all issues.
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` WHEREFORE, Plaintiffs pray for judgment:
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`1. Declaring this a proper class action, certifying plaintiffs as representatives and the
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`undersigned as counsel for the class;
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`2. Entering preliminary and permanent injunctive relief by directing Defendant to correct the
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`challenged practices to comply with the law;
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`3. Injunctive relief to remove, correct and/or refrain from the challenged practices and
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`representations, and restitution and disgorgement for members of the class pursuant to the
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`applicable laws;
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`4. Awarding monetary damages, statutory damages pursuant to any statutory claims and
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`interest pursuant to the common law and other statutory claims;
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`5. Awarding costs and expenses, including reasonable fees for plaintiffs' attorneys and
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`experts; and
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`Case 2:21-cv-01621-JMA-ARL Document 1 Filed 03/26/21 Page 16 of 17 PageID #: 16
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`6. Other and further relief as the Court deems just and proper.
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`Dated: March 26, 2021
`
`
`
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`Respectfully submitted,
`
`Sheehan & Associates, P.C.
`/s/Spencer Sheehan
`Spencer Sheehan
`60 Cutter Mill Rd Ste 409
`Great Neck NY 11021-3104
`Tel: (516) 268-7080
`Fax: (516) 234-7800
`spencer@spencersheehan.com
`
`
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`Case 2:21-cv-01621-JMA-ARL Document 1 Filed 03/26/21 Page 17 of 17 PageID #: 17
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`2:21-cv-01621
`United States District Court
` Eastern District of New York
`
`
`Kendra Anderson, and Marla Micks, individually and on behalf of all others similarly situated,
`
`
`
`
`
` - against -
`
`
`The Hain Celestial Group, Inc.,
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`
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`Plaintiffs,
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` Defendant
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`Class Action Complaint
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`Sheehan & Associates, P.C.
`60 Cutter Mill Rd Ste 409
`Great Neck NY 11021-3104
`Tel: (516) 268-7080
`Fax: (516) 234-7800
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`Dated: March 26, 2021
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` /s/ Spencer Sheehan
` Spencer Sheehan
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