Case 1:21-cv-00133-TJM-CFH Document 1 Filed 02/05/21 Page 1 of 89
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF NEW YORK
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`Case No.
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`CLASS ACTION COMPLAINT
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`DEMAND FOR JURY TRIAL
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`Case No. 1:21-CV-0133 (TJM/CFH)
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`LAURIE THOMAS, ALISON KAVULAK,
`JEN MACLEOD, MARY NARVAEZ,
`ALISON FLEISSNER, EMILY
`BIGAOUETTE, LAURA EGGNATZ,
`TERESA HAGMAIER, and NICOLE
`FALLON, individually and on behalf of all
`others similarly situated,
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`Plaintiffs,
`
`v.
`
`BEECH-NUT NUTRITION COMPANY,
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`Defendant.
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`INTRODUCTION
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`1.
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`Plaintiffs Laurie Thomas, Alison Kavulak, Jen MacLeod, Mary Narvaez, Alison
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`Fleissner, Emily Bigaouette, Laura Eggnatz, Teresa Hagmaier, and Nicole Fallon, individually and
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`on behalf of all others similarly situated, by and through their undersigned attorneys, bring this
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`Class Action Complaint against Defendant Beech-Nut Nutrition Company for its negligent,
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`reckless, and/or intentional practice of misrepresenting and failing to fully disclose the heavy
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`metals and/or perchlorate or other ingredients that do not conform to the labels, packaging,
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`advertising, and statements of Defendant’s products sold throughout the United States, including
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`this District. Plaintiffs seek both injunctive and monetary relief on behalf of the proposed Class
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`and Sub-Classes (as defined below) including: (i) requiring full disclosure of all such substances
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`and ingredients in Defendant’s marketing, advertising, and labeling; (ii) requiring testing of all
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`ingredients and final products for such substances; and (iii) restoring monies to the members of
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`the proposed Class. Plaintiffs allege the following based upon personal knowledge as well as
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`investigation by their counsel and, as to all other matters, upon information and belief. Plaintiffs
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`believe that a reasonable opportunity for discovery will reveal substantial evidentiary support for
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`the allegations set forth herein.
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`DEFENDANT MARKETS ITSELF AS SELLING ONLY PREMIUM BABY FOOD
`THAT IS SAFE FOR HUMAN CONSUMPTION
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`
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`2.
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`Defendant manufactures, markets, advertises, labels, distributes, and sells baby
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`food products under the brand name Beech-Nut throughout the United States, including in this
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`District.
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`3.
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`Defendant states that it offers natural and organic baby foods “that are free from
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`artificial preservatives, colors and flavors.” Defendant touts that it “conduct[s] over 20 rigorous
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`tests on our purees, testing for up to 255 pesticides and heavy metals (like lead, cadmium, arsenic
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`and other nasty stuff). Just like you would, we send the produce back if it’s not good enough.”1
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`4.
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`Defendant’s packaging and labels further emphasize quality and safe ingredients
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`and even declares that the products are “100% Natural.”
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`5.
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`Defendant’s packaging and labels further emphasize that its baby food products are
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`natural, organic, and safe for human infant consumption.
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`6.
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`Yet nowhere in the labeling, advertising, statements, warranties, and/or packaging
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`does Defendant disclose that the Baby Foods (as listed in paragraph 27 below) include and/or
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`have a high risk of containing heavy metals or other ingredients that do not conform to the labels,
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`packaging, advertising, and statements.
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`1 https://www.beechnut.com/our-story/.
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`2
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`7.
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`Indeed, the Baby Foods have been shown to contain significant levels of arsenic,
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`mercury, lead, cadmium, and/or perchlorate2—all known to pose health risks to humans and
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`particularly infants. See Ex. A.
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`8.
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`Despite this, Defendant warrants, promises, represents, misleads, labels, and/or
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`advertises that the Baby Foods are free of any heavy metals, perchlorate, and/or unnatural
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`ingredients by making assurances that the foods are natural and safe for infant consumption.
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`9.
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`Defendant asserts that its foods are “real food for babies,”3 that its foods are tested
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`for heavy metals, and that Defendant is “aware of no higher standards in the industry than the ones
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`we employ,”4 in direct contradiction to the true nature of its contents, which include, but are not
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`limited to, heavy metals and/or perchlorate.
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`10.
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`Defendant also asserts that the Baby Foods are safe and appropriate for
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`consumption by babies through its “Stage” representations, which identify the appropriate age
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`range that should consume the Baby Food. For example, “Stage 1, 4 months+,” “Stage 2, 6
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`months+,” etc. Each of the Baby Foods contain this “Stage” designation, identifying that it is
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`suitable and appropriate for consumption by a baby or child.
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`11.
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`It was recently revealed on information and belief that Defendant was knowingly,
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`recklessly, and/or negligently selling the Baby Foods containing arsenic, mercury, cadmium, lead,
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`and/or perchlorate.
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`2 HEALTHY BABIES BRIGHT FUTURES, What’s In My Baby’s Food?,
`https://www.healthybabyfood.org/sites/healthybabyfoods.org/files/2019-
`10/BabyFoodReport_FULLREPORT_ENGLISH_R5b.pdf (hereinafter, “Healthy Babies Bright
`Futures Report”).
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` https://www.beechnut.com/food-quality-safety/.
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`3
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`12.
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`Plaintiffs bring this action individually and on behalf of all consumers who
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`purchased the Baby Foods, to cause the disclosure of the presence and/or risk of the presence of
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`heavy metals, perchlorate, and/or unnatural or other ingredients that do not conform to the labels,
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`packaging, advertising, and statements in the Baby Foods; to correct the false and misleading
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`perception Defendant has created in the minds of consumers that the Baby Foods are high quality,
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`healthy, and safe for infant consumption; and to obtain redress for those who have purchased the
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`Baby Foods.
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`JURISDICTION AND VENUE
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`13.
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`This Court has original jurisdiction over all causes of action asserted herein under
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`the Class Action Fairness Act, 28 U.S.C. §1332(d)(2), because the matter in controversy exceeds
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`the sum or value of $5,000,000 exclusive of interest and costs and more than two-thirds of the
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`Class reside in states other than the states in which Defendant is a citizen and in which this case is
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`filed, and therefore any exemptions to jurisdiction under 28 U.S.C. §1332(d) do not apply.
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`14.
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`Venue is proper in this Court pursuant to 28 U.S.C. §1391, because Plaintiffs have
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`suffered injury as a result of Defendant’s acts in this district, many of the acts and transactions
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`giving rise to this action occurred in this District, Defendant conducts substantial business in this
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`district, Defendant has intentionally availed itself of the laws and markets of this district, and
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`Defendant is subject to personal jurisdiction in this district.
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`PARTIES
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`15.
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`Plaintiff Alison Kavulak is a resident of Avoca, Iowa, and purchased Defendant’s
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`Baby Foods for her son. Plaintiff Kavulak purchased Beech-Nut Naturals (pear & blueberry;
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`carrots; green beans; and sweet potatoes). Plaintiff Kavulak purchased the Baby Foods from a
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`Walmart store in Council Bluffs, Iowa and online at Walmart.com on or around June 2019 and
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`continued to purchase until August 2019. Prior to purchasing the Baby Foods, Plaintiff Kavulak
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`saw Defendant’s nutritional claims on the packaging, including “natural[],”the “Stage”
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`representations, and “real food for babies,” which she relied on in deciding to purchase the Baby
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`Foods. During that time, based on Defendant’s material omissions and the false and misleading
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`claims, warranties, representations, advertisements and other marketing by Defendant, Plaintiff
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`Kavulak was unaware that the Baby Foods contained any level of heavy metals, chemicals, or
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`toxins, and would not have purchased the food if that was fully disclosed, or she would not have
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`paid as much for the Baby Foods if that information was fully disclosed. Plaintiff Kavulak was
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`injured by paying a premium for the Baby Foods that have no or de minimis value—or whose
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`value was at least less than what she paid for the Baby Food—based on the presence of the alleged
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`heavy metals, chemicals, and toxins.
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`16.
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`Plaintiff Laurie Thomas is a resident of Petersburg, Illinois, and purchased
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`Defendant’s Baby Foods for her children. Plaintiff Thomas purchased Beech-Nut Naturals (sweet
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`potato; mango; sweet corn and green beans; bananas; carrots; and spinach, green beans and peas)
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`as well as Beech-Nut Organic (sweet potato; pears; pumpkin; apple and avocado; apple; banana,
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`cinnamon and granola; carrots; apple, kiwi and spinach; flake oatmeal cereal; flake rice cereal).
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`Plaintiff Thomas purchased the Baby Foods from Hy-Vee, Walmart, County Market, and other
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`grocery stores over the past six years. Prior to purchasing the Baby Foods, Plaintiff Thomas saw
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`Defendant’s nutritional claims on the packaging, including “natural[],”the “Stage” representations,
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`and “real food for babies,” which she relied on in deciding to purchase the Baby Foods. During
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`that time, based on Defendant’s omissions and the false and misleading claims, warranties,
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`representations, advertisements and other marketing by Defendant, Plaintiff Thomas was unaware
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`that the Baby Foods contained any level of heavy metals, chemicals or toxins, and would not have
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`purchased the food if that was fully disclosed, or she would not have paid as much for the Baby
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`Foods if that information was fully disclosed. Plaintiff Thomas was injured by paying a premium
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`for the Baby Foods that have no or de minimis value—or whose value was at least less than what
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`she paid for the Baby Food—based on the presence of the alleged heavy metals, chemicals, and
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`toxins.
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`17.
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`Plaintiff Jen MacLeod is a resident of Chicago, Illinois, and purchased Defendant’s
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`Baby Foods for her children. Plaintiff MacLeod purchased Beech-Nut Naturals (apple &
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`blackberry; mango; spinach, zucchini, & peas; prunes; apple & kale; sweet corn & green beans;
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`green beans; and butternut squash) as well as Beech-Nut Organic (prunes; pear, kale, & cucumber;
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`apple, raspberries, & avocado; apple, kiwi, & spinach; pumpkin; banana, cinnamon, & granola;
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`pears; and sweet potatoes). Plaintiff MacLeod purchased the Baby Foods from Target over the past
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`four months. Prior to purchasing the Baby Foods, Plaintiff MacLeod saw Defendant’s nutritional
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`claims on the packaging, including “natural[],”the “Stage” representations, and “real food for
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`babies,” which she relied on in deciding to purchase the Baby Foods. During that time, based on
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`Defendant’s omissions and the false and misleading claims, warranties, representations,
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`advertisements and other marketing by Defendant, Plaintiff MacLeod was unaware that the Baby
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`Foods contained any level of heavy metals, chemicals or toxins, and would not have purchased the
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`food if that was fully disclosed, or she would not have paid as much for the Baby Foods if that
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`information was fully disclosed. Plaintiff MacLeod was injured by paying a premium for the Baby
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`Foods that have no or de minimis value—or whose value was at least less than what she paid for
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`the Baby Food—based on the presence of the alleged heavy metals, chemicals, and toxins.
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`18.
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`Plaintiff Mary Narvaez is a resident of Woodland, California, and purchased
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`Defendant’s Baby Foods for her child. Plaintiff Narvaez purchased Beech-Nut Naturals (butternut
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`squash; sweet corn and green beans; carrots; green beans; banana; apple and blackberry; pears;
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`apple and kale; pineapple, pear, and avocado; sweet potato; apple; apple, pumpkin, and cinnamon;
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`spinach, zucchini, and peas; and mango). Plaintiff Narvaez purchased the Baby Foods from a
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`Walmart store in Woodland, California, a Food 4 Less store in Woodland, California, a
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`Neighborhood Walmart store in Woodland, California, a Nugget store in Woodland, California,
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`and a WinCo store in Vacaville, California on or around August 2018 and continued to purchase
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`until August 2019. Prior to purchasing the Baby Foods, Plaintiff Narvaez saw Defendant’s
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`nutritional claims on the packaging, including “natural[],”the “Stage” representations, and “real
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`food for babies,” which she relied on in deciding to purchase the Baby Foods. During that time,
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`based on Defendant’s omissions and the false and misleading claims, warranties, representations,
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`advertisements and other marketing by Defendant, Plaintiff Narvaez was unaware that the Baby
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`Foods contained any level of heavy metals, chemicals or toxins, and would not have purchased the
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`food if that was fully disclosed, or she would not have paid as much for the Baby Foods if that
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`information was fully disclosed. Plaintiff Narvaez was injured by paying a premium for the Baby
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`Foods that have no or de minimis value—or whose value was at least less than what she paid for
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`the Baby Food—based on the presence of the alleged heavy metals, chemicals, and toxins.
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`19.
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`Plaintiff Alison Fleissner is a resident of Hazlet, New Jersey, and purchased
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`Defendant’s Baby Foods for her children. Plaintiff Fleissner purchased Beech-Nut Naturals (sweet
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`potato, bananas; sweet peas; carrots; pineapple, pear, and avocado; apples; apples, cinnamon, and
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`granola; banana, orange, and pineapple; apple and kale; carrots, sweet corn, and pumpkin; mango;
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`sweet corn and green beans; peas, green beans, and asparagus) as well as Beech-Nut Organic
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`(apple, kiwi, and spinach; pear, kale, and cucumber; butternut squash and sweet corn; raspberry,
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`apple, and avocado; oatmeal baby cereal). Plaintiff Fleissner purchased the Baby Foods from a
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`ShopRite store in Hazlet, New Jersey, a ShopRite store in Middletown, New Jersey, a Target store
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`in Middletown, New Jersey, a Walmart store in Freehold, New Jersey, a Walmart store in Old
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`Bridge, New Jersey, a Giant Eagle store in Cleveland, Ohio, a Target store in University Heights,
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`Ohio, and a Walmart store in Cleveland, Ohio on or around July 2015 and continued to purchase
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`until March 2019. Prior to purchasing the Baby Foods, Plaintiff Fleissner saw Defendant’s
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`nutritional claims on the packaging, including “natural[],”the “Stage” representations, and “real
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`food for babies,” which she relied on in deciding to purchase the Baby Foods. During that time,
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`based on Defendant’s omissions and the false and misleading claims, warranties, representations,
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`advertisements and other marketing by Defendant, Plaintiff Fleissner was unaware that the Baby
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`Foods contained any level of heavy metals, chemicals or toxins, and would not have purchased the
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`food if that was fully disclosed, or she would not have paid as much for the Baby Foods if that
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`information was fully disclosed. Plaintiff Fleissner was injured by paying a premium for the Baby
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`Foods that have no or de minimis value—or whose value was at least less than what she paid for
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`the Baby Food—based on the presence of the alleged heavy metals, chemicals, and toxins.
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`20.
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`Plaintiff Emily Bigaouette is a resident of Belle Plaine, Minnesota, and purchased
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`Defendant’s Baby Foods for her child. Plaintiff Bigaouette purchased various varieties of Beech-
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`Nut Naturals as well as Beech-Nut Organic. Plaintiff Bigaouette purchased the Baby Foods from
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`a Target store in Chaska, Minnesota and online from Amazon on or around October 2016 and
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`continued to purchase until May 2017. Prior to purchasing the Baby Foods, Plaintiff Bigaouette
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`saw Defendant’s nutritional claims on the packaging, including “natural[],”the “Stage”
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`representations, and “real food for babies,” which she relied on in deciding to purchase the Baby
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`Foods. During that time, based on Defendant’s omissions and the false and misleading claims,
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`warranties, representations, advertisements and other marketing by Defendant, Plaintiff Bigaouette
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`was unaware that the Baby Foods contained any level of heavy metals, chemicals or toxins, and
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`would not have purchased the food if that was fully disclosed, or she would not have paid as much
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`for the Baby Foods if that information was fully disclosed. Plaintiff Bigaouette was injured by
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`paying a premium for the Baby Foods that have no or de minimis value—or whose value was at
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`least less than what she paid for the Baby Food—based on the presence of the alleged heavy metals,
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`chemicals, and toxins.
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`21.
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`Plaintiff Laura Eggnatz is a resident of Davie, Florida, and purchased Defendant’s
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`Baby Foods for her child. Plaintiff Eggnatz purchased Beech-Nut Naturals (bananas and prunes)
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`as well as Beech-Nut Organic (carrots; sweet potatoes; apples; pears). Plaintiff Eggnatz purchased
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`the Baby Foods from a Walmart store in Pembroke Pines, Florida on or around October 2019 and
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`continued to purchase until February 2020. Prior to purchasing the Baby Foods, Plaintiff Eggnatz
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`saw Defendant’s nutritional claims on the packaging, including “natural[],”the “Stage”
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`representations, and “real food for babies,” which she relied on in deciding to purchase the Baby
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`Foods. During that time, based on Defendant’s omissions and the false and misleading claims,
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`warranties, representations, advertisements and other marketing by Defendant, Plaintiff Eggnatz
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`was unaware that the Baby Foods contained any level of heavy metals, chemicals or toxins, and
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`would not have purchased the food if that was fully disclosed, or she would not have paid as much
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`for the Baby Foods if that information was fully disclosed. Plaintiff Eggnatz was injured by paying
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`a premium for the Baby Foods that have no or de minimis value—or whose value was at least less
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`than what she paid for the Baby Food—based on the presence of the alleged heavy metals,
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`chemicals, and toxins.
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`22.
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`Plaintiff Teresa Hagmaier is a resident of North Abington Township, Pennsylvania,
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`and purchased Defendant’s Baby Foods for her child. Plaintiff Hagmaier purchased Beech-Nut
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`Organics (oatmeal; carrots; apple; banana; sweet potato; peas and butternut squash). Plaintiff
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`Hagmaier purchased the Baby Foods from a Gerrity’s Supermarket in Clarks Summit,
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`Pennsylvania, a Weis Market in Clark Summit, Pennsylvania, and a Wegmans store in Dickson
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`City, Pennsylvania on or around June 2018 and continued to purchase until Spring of 2019. Prior
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`to purchasing the Baby Foods, Plaintiff Hagmaier saw Defendant’s nutritional claims on the
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`packaging, including “natural[],”the “Stage” representations, and “real food for babies,” which she
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`relied on in deciding to purchase the Baby Foods. During that time, based on Defendant’s
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`omissions and the false and misleading claims, warranties, representations, advertisements and
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`other marketing by Defendant, Plaintiff Hagmaier was unaware that the Baby Foods contained any
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`level of heavy metals, chemicals or toxins, and would not have purchased the food if that was fully
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`disclosed, or she would not have paid as much for the Baby Foods if that information was fully
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`disclosed. Plaintiff Hagmaier was injured by paying a premium for the Baby Foods that have no
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`or de minimis value—or whose value was at least less than what she paid for the Baby Food—
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`based on the presence of the alleged heavy metals, chemicals, and toxins.
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`23.
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`Plaintiff Nicole Fallon is a resident of Ellenville, New York, and purchased
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`Defendant’s Baby Foods for her child. Plaintiff Fallon purchased Beech-Nut Organics (apple,
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`prunes, bananas, and sweet potato) as well as Beech-Nut Naturals (apple). Plaintiff Fallon
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`purchased the Baby Foods from a ShopRite store in Ellenville, New York and a Walmart store in
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`Ellenville, New York on or around September 2020 until December 2020. Prior to purchasing the
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`Baby Foods, Plaintiff Fallon saw Defendant’s nutritional claims on the packaging, including
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`“natural[],”the “Stage” representations, and “real food for babies,” which she relied on in deciding
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`to purchase the Baby Foods. During that time, based on Defendant’s omissions and the false and
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`misleading claims, warranties, representations, advertisements and other marketing by Defendant,
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`Plaintiff Fallon was unaware that the Baby Foods contained any level of heavy metals, chemicals
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`or toxins, and would not have purchased the food if that was fully disclosed, or she would not have
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`paid as much for the Baby Foods if that information was fully disclosed. Plaintiff Fallon was
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`injured by paying a premium for the Baby Foods that have no or de minimis value—or whose
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`value was at least less than what she paid for the Baby Food—based on the presence of the alleged
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`heavy metals, chemicals, and toxins.
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`24.
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`As the result of Defendant’s negligent, reckless, and/or knowingly deceptive
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`conduct as alleged herein, Plaintiffs were injured when they paid the purchase price or a price
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`premium for the Baby Foods that did not deliver what was promised. They paid the premium price
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`on the assumption that the labeling of the Baby Foods was accurate and that it was healthy, superior
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`quality, natural, and safe for babies and children to ingest. Plaintiffs would not have paid this
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`money had they known that the Baby Foods contained any levels of the heavy metals, chemicals
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`and/or toxins. Plaintiffs were further injured because the Baby Foods that they purchased have no
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`or de minimis value—or a value that was at least less than what they paid for the Baby Food—
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`based on the presence of the alleged heavy metals, chemicals and toxins. Damages can be
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`calculated through expert testimony at trial. Further, should Plaintiffs encounter the Baby Foods
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`in the future, they could not rely on the truthfulness of the packaging, absent corrective changes to
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`the packaging and advertising of the Baby Foods.
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`25.
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`Defendant Beech-Nut Nutrition Company (“Beech-Nut”) is incorporated in New
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`York. Its headquarters and principal place of business is located at One Nutritious Place,
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`Amsterdam, New York 12010.
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`26.
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`Defendant formulates, develops, manufactures, labels, distributes, markets,
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`advertises, and sells the Baby Foods under the baby food brand names Beech-Nut throughout the
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`United States, including in this District, during the Class Period (defined below). The advertising,
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`labeling, and packaging for the Baby Foods, relied upon by Plaintiffs were prepared, reviewed,
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`and/or approved by Defendant and its agents, and were disseminated by Defendant and its agents
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`through marketing, advertising, packaging, and labeling that contained the misrepresentations
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`alleged herein. The marketing, advertising, packaging, and labeling for the Baby Foods were
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`designed to encourage consumers to purchase the Baby Foods and reasonably misled the
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`reasonable consumer, i.e., Plaintiffs and the Class, into purchasing the Baby Foods. Defendant
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`owns, manufactures, and distributes the Baby Foods, and created, allowed, negligently oversaw,
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`and/or authorized the unlawful, fraudulent, unfair, misleading, and/or deceptive labeling and
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`advertising for the Baby Foods. Defendant is responsible for sourcing ingredients, manufacturing
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`the products, and conducting all relevant quality assurance protocols, including testing, for the
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`ingredients and finished Baby Foods.
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`FACTUAL ALLEGATIONS
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`I. THE BABY FOODS
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`27.
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`The Baby Foods include the following:
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`(a) Beech-Nut Rice Single Grain Baby Cereal – Stage 1;
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`(b) Beech-Nut Organics Oatmeal Whole Grain Baby Cereal – Stage 1;
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`(c) Beech-Nut Organics Prunes;
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`(d) Beech-Nut Naturals Prunes;
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`(e) Beech-Nut Organics Pear, Kale, & Cucumber
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`(f) Beech-Nut Organics Apple, Raspberries, & Avocado
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`Case 1:21-cv-00133-TJM-CFH Document 1 Filed 02/05/21 Page 17 of 89
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`(g) Beech-Nut Organics Apple, Kiwi, & Spinach
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`(h) Beech-Nut Organics Banana, Cinnamon, & Granola
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`Case 1:21-cv-00133-TJM-CFH Document 1 Filed 02/05/21 Page 18 of 89
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`(i) Beech-Nut Organics Pears
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`(j) Beech-Nut Organics Sweet Potatoes
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`Case 1:21-cv-00133-TJM-CFH Document 1 Filed 02/05/21 Page 19 of 89
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`(k) Beech-Nut Classics Sweet Carrots – Stage 2;
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`(l) Beech-Nut Organics Just Carrots – Stage 1;
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`Case 1:21-cv-00133-TJM-CFH Document 1 Filed 02/05/21 Page 20 of 89
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`(m) Beech-Nut Naturals Just Sweet Potatoes – Stage 1;
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`(n) Beech-Nut Organics Just Sweet Potatoes – Stage 1;
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`Case 1:21-cv-00133-TJM-CFH Document 1 Filed 02/05/21 Page 21 of 89
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`(o) Beech-Nut Classics Sweet Potatoes – Stage 2;
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`(p) Beech-Nut Classics Sweet Peas – Stage 2;
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`Case 1:21-cv-00133-TJM-CFH Document 1 Filed 02/05/21 Page 22 of 89
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`(q) Beech-Nut Naturals Just Butternut Squash – Stage 1;
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`(r) Beech-Nut Organic Just Pumpkin – Stage 1;
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`Case 1:21-cv-00133-TJM-CFH Document 1 Filed 02/05/21 Page 23 of 89
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`(s) Beech-Nut Organic Just Apples – Stage 1;
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`(t) Beech-Nut Naturals Bananas – Stage 1;
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`Case 1:21-cv-00133-TJM-CFH Document 1 Filed 02/05/21 Page 24 of 89
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`(u) Beech-Nut Naturals Beets, Pear & Pomegranate – Stage 2;
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`(v) Beech-Nut Naturals Sweet Corn and Green Beans;
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`Case 1:21-cv-00133-TJM-CFH Document 1 Filed 02/05/21 Page 25 of 89
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`(w) Beech-Nut Naturals Carrots;
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`(x) Beech-Nut Naturals Green Beans;
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`Case 1:21-cv-00133-TJM-CFH Document 1 Filed 02/05/21 Page 26 of 89
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`(y) Beech-Nut Naturals Apple and Blackberries;
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`(z) Beech-Nut Naturals Pear;
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`Case 1:21-cv-00133-TJM-CFH Document 1 Filed 02/05/21 Page 27 of 89
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`(aa)
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`Beech-Nut Naturals Apple and Kale;
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`(bb)
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`Beech-Nut Naturals Pineapple, Pear, and Avocado;
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`Case 1:21-cv-00133-TJM-CFH Document 1 Filed 02/05/21 Page 28 of 89
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`(cc)
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`Beech-Nut Naturals Sweet Potato;
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`(dd)
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`Beech-Nut Naturals Apple;
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`Case 1:21-cv-00133-TJM-CFH Document 1 Filed 02/05/21 Page 29 of 89
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`(ee)
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`Beech-Nut Naturals Apple, Pumpkin, and Cinnamon;
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`(ff) Beech-Nut Naturals Spinach, Zucchini, and Peas;
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`Case 1:21-cv-00133-TJM-CFH Document 1 Filed 02/05/21 Page 30 of 89
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`(gg)
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`Beech-Nut Naturals Mango
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`Case 1:21-cv-00133-TJM-CFH Document 1 Filed 02/05/21 Page 31 of 89
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`II. MISLEADING CLAIMS AND OMISSIONS
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`A. Natural
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`28.
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`The following images are some representative examples of Defendant’s “natural”
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`claim on the Baby Foods’ packaging:
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`31
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`Case 1:21-cv-00133-TJM-CFH Document 1 Filed 02/05/21 Page 32 of 89
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`B. “Stage” Representations
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`29.
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`The following images are some representative examples of Defendant’s “Stage”
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`claim on the Baby Foods’ packaging:
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`32
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`Case 1:21-cv-00133-TJM-CFH Document 1 Filed 02/05/21 Page 33 of 89
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`C. “Real Food for Babies”
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`30.
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`The following images are some representative examples of Defendant’s “Real Food
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`for Babies” claim on the Baby Foods’ packaging:
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`D. Omissions
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`31.
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`As discussed above, Defendant’s Baby Food packaging also misleadingly omitted
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`the presence, or risk of, heavy metals and perchlorate. Defendant intentionally omitted disclosure
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`of the presence or risk of these substances in order to induce and mislead reasonable consumers
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`like Plaintiffs to purchase the Baby Food at premium prices.
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`33
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`Case 1:21-cv-00133-TJM-CFH Document 1 Filed 02/05/21 Page 34 of 89
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`III. THE PRESENCE OF HEAVY METALS AND/OR PERCHLORATE AT ANY
`LEVEL WOULD BE MATERIAL TO A REASONABLE CONSUMER DUE TO
`THE INHERENT AND KNOWN RISKS OF CONSUMPTION AND/OR
`EXPOSURE.
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`A. Heavy Metals
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`32.
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`At all times during the Class Period, Defendant knew or should have known that
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`the Baby Foods contained heavy metals, had a risk of containing heavy metals, and/or were not
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`sufficiently tested for heavy metals. During this time, Defendant omitted any reference to the
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`presence, or the risk of the presence, of heavy metals from the Baby Foods’ packaging.
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`33.
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`Defendant knew or should have known that heavy metals were a potentially
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`dangerous contaminant that pose health risks to babies and children. Defendant knew or should
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`have known that the standards for the presence of heavy metals in baby food have become
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`increasingly stringent in recent years.
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`34.
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`Defendant knew or should have known that it owed consumers a duty of care to
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`prevent, or at the very least, minimize, the presence, or risk of, of heavy metals in the Baby Foods.
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`35.
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`Defendant knew or should have known that it owed consumers a duty of care to
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`adequately test for heavy metals in the Baby Foods.
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`36.
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`Defendant knew that consumers purchased the Baby Foods based on the reasonable
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`expectation that Defendant manufactured the Baby Foods to the highest standards to be safe and
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`healthy for consumption by babies. Defendant knew or should have known that consumers
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`reasonably inferred that Defendant would hold the Baby Foods to the highest standards for
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`preventing the presence, or risk, of heavy metals and for testing for heavy metals.
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`37.
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`A recent congressional report from the Subcommittee on Economic and Consumer
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`Policy found that many of the products by the country’s largest commercial baby food
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`34
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`Case 1:21-cv-00133-TJM-CFH Document 1 Filed 02/05/21 Page 35 of 89
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`manufacturers, including Beech-Nut, “contain significant levels of toxic heavy metals, including
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`arsenic, lead, cadmium and mercury, which can endanger infant neurological development.”5
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`38.
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`The Food and Drug Administration (“FDA”) and the World Health Organization
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`(“WHO”) have declared arsenic, lead, cadmium, and mercury “dangerous to human health,
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`particularly to babies and children, who are most vulnerable to their neurotoxic effects.”6
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`39.
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`Arsenic, lead, mercury, and cadmium, four heavy metals found in the Baby Foods,
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`are neurotoxins. Exposures to these four heavy metals “diminish quality of life, reduce academic
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`achievement, and disturb behavior, with profound consequences for the welfare and productivity
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`of entire societies.”7
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`40.
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`The 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).”8 Even in trace amounts found in
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`food, these heavy metals can alter the developing brain and erode a child