Case 1:20-cv-05385 Document 1 Filed 07/13/20 Page 1 of 15
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`Sheehan & Associates, P.C.
`Spencer Sheehan
`505 Northern Blvd Ste 311
`Great Neck NY 11021-5101
`Telephone: (516) 303-0552
`Fax: (516) 234-7800
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`United States District Court
`Southern District of New York
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`Chandra Weintz, individually and on behalf of
`all others similarly situated,
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`Plaintiff,
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`1:20-cv-05385
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`- against -
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`Class Action Complaint
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`Pacific Foods of Oregon, LLC,
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`Defendant
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`Plaintiff by attorneys allege upon information and belief, except for allegations pertaining
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`to plaintiff, which are based on personal knowledge:
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`1.
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` Pacific Foods of Oregon, LLC (“defendant”) manufactures, distributes, markets,
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`labels and sells hemp beverages purporting to be flavored only with vanilla under the Pacific Foods
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`brand (“Product”).
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`2.
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`The Product is available to consumers from retail and online stores of third-parties
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`and is sold in cartons of 32 OZ (946 ML).
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`3.
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`The relevant front label representations include “Pacific Foods,” “Hemp,” “Plant-
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`Based Beverage,” “Vanilla,” hemp seeds and several cured vanilla beans.
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`4.
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`The unqualified, prominent and conspicuous representation of the Product’s flavor
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`as “Vanilla” is false, deceptive and misleading because the Product contains non-vanilla, artificial
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`flavors which imitate, resemble and extend vanilla’s taste but are not derived from vanilla beans,
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`yet these flavors are not disclosed to consumers on the front label as required and expected.
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`5.
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`The tropical orchid of the genus Vanilla (V. planifolia) is the source of the flavor
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`commonly known as vanilla.
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`6. Vanilla’s “desirable flavor attributes…make it one of the most common ingredients
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`used in the global marketplace, whether as a primary flavor, as a component of another flavor, or
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`for its desirable aroma qualities.”1
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`7. Vanilla’s unique flavor cannot be duplicated by science due to over 200 compounds
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`scientists have identified, including volatile constituents such as “acids, ethers, alcohols, acetals,
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`heterocyclics, phenolics, hydrocarbons, esters and carbonyls.”2
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`8. Demand for real vanilla “has been steadily increasing…due to consumer demand for
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`natural foods that are free of artificial ingredients.”3
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`9. According to Nielsen, 62% of consumers say they try to avoid artificial flavors.4
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`10. Another study by New Hope Network concludes that “71% of consumers today are
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`avoiding artificial flavors.”5
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`11. Label Insight determined that 76% of consumers avoid products with artificial
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`flavors.6
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`12. According to one seller of vanilla, today’s consumers “want real vanilla, not
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`imitation [vanilla] flavoring.”
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`13. Unfortunately, consumers are often misled when it comes to vanilla, due to its high
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`1 Daphna Havkin-Frenkel, F.C. Bellanger, Eds., Handbook of Vanilla Science and Technology, Wiley, 2018; Kristiana
`Lalou Queen of flavors: Vanilla rises above transparency concerns to lead category, Food Ingredients First, Sept. 3,
`2019 (describing vanilla as “versatile”).
`2 Arun K. Sinha et al., “A comprehensive review on vanilla flavor: extraction, isolation and quantification of vanillin
`and other constituents,” International Journal of Food Sciences and Nutrition 59.4 (2008): 299-326.
`3 Chagrin Valley Soap & Salve Company, FAQs, Why Are The Prices of Vanilla Bean Products Always Increasing?
`4 Nielsen, Reaching For Real Ingredients: Avoiding The Artificial, Sept. 6, 2016.
`5 Alex Smolokoff, Natural color and flavor trends in food and beverage, Natural Products Insider, Oct. 11, 2019.
`6 Thea Bourianne, Exploring today’s top ingredient trends and how they fit into our health-conscious world, March
`26-28, 2018.
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`cost and sophisticated methods of deception.
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`14. During the first half of the 20th century, “the widespread and exceedingly serious
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`adulteration of vanilla extracts that are now labeled ‘pure’” was rampant, which resulted in
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`consumers expecting vanilla but receiving its synthetic replacement, vanillin:7
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`Misbranding was alleged for the further reason that the product was labeled and
`branded so as to deceive and mislead the purchaser thereof, in that said label was
`calculated and intended to create the impression and belief in the mind of the
`purchaser that the product was a genuine vanilla extract, whereas, in fact, it was a
`mixture of vanilla extract, vanillin, and coumarin, artificially colored with caramel.
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`Notice of Judgment No. 2241, Adulteration and Misbranding of…Vanilla Extract,
`United States Department of Agriculture, W. M. Hays, Acting Secretary,
`Washington, D.C., January 23, 1913.
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`15. Due to widespread fraud, vanilla became the only flavor to have a standard of
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`identity, to “insure, for the protection of both the consumers and our industry, that all vanilla
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`products are correctly labeled and meet at least minimum standards.”8 See 21 C.F.R. § 169.175 –
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`21 C.F.R. § 169.182 (vanilla products); see also 1 NYCRR § 250.1(a)(17) (“the commissioner
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`hereby adopts the following as the standards of identity…as published in…21 CFR part 169”).9
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`16. One of the most important ways for consumers to know whether they are buying real
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`or imitation vanilla is through truthful and non-misleading disclosure of a product’s ingredients.
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`17. Designating vanilla flavors requires application of the standards for vanilla products
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`different rules compared to non-vanilla flavors. See 21 C.F.R. § 169.175-182 (vanilla products)
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`7 Letter from McCormick & Company Inc. to HEW Secretary, January 15, 1960; Memorandum of Telephone
`Conversation between Mr. Alfred Daibock, Commercial Policy Division, Department of State and Tom Bellis, Food
`Standards Branch, FDA (the FDA stated, “The prime purpose sought to be served by the standards adopted was to
`promote honest, fair dealing with housewives and other consumers of the flavorings covered by the standards”).
`8 Letter from McCormick & Company Inc. to HEW Secretary, January 15, 1960; Press Release U.S. Department of
`Health, Education, and Welfare, September 13, 1963.
`9 1 NYCRR § 250.1(a)(17), Section 250.1, Foods, Part 250, Definitions and Standards, Subchapter C, Food and Food
`Products, Chapter VI, Food Control, Title 1; 1. New York State has adopted and incorporated in its entirety, all
`provisions of the Federal Food, Drug and Cosmetic Act (“FFDCA”) through its Agriculture and Markets Law
`(“AGM”) and the accompanying regulations. See Title 1, Department of Agriculture and Markets, Official
`Compilation of Codes, Rules and Regulations of the State of New York (“NYCRR”).
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`compare with 21 C.F.R. § 101.22(i).
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`18. The ingredient listings will vary based on the product’s primary characterizing flavor
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`and the amount and type of flavor used.
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`19. First, if a food is flavored only by vanilla, the ingredient list is required to “bear[s]
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`the name of the food specified in the definition and standard.” See 21 U.S.C. §343(g) and 21 C.F.R.
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`§ 101.4(a)(1) (“designation of ingredients” by common or usual name); see also 21 C.F.R. §
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`169.175 (b)(1) (“The specified name of the food is ‘Vanilla extract’ or ‘Extract of vanilla’”); 21
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`C.F.R. § 169.177 (b) (“The specified name of the food is ‘Vanilla flavoring’.”).
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`20. Second, if vanillin is added to vanilla, the ingredient is required to state “‘contains
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`vanillin, an artificial flavor (or flavoring).’” See 21 C.F.R. § 169.180(b) (“Vanilla-vanillin
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`extract”).
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`21. Third, where vanilla contains added vanillin and/or non-vanilla natural flavors that
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`promote a vanilla taste, it is required to be listed as “vanilla-vanillin extract and ,” the
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`blank being filled with the names of the particular flavors.
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`22. For all other situations where a product’s primary characterizing flavor is not vanilla,
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`flavors are listed as “‘natural flavor’ or ‘artificial flavor.’”10 See 21 C.F.R. § 101.22(h)(1) (“The
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`label of a food to which flavor is added shall declare the flavor in the statement of ingredients…as
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`‘spice’, “‘natural flavor’, or ‘artificial flavor.’”); see also 21 U.S.C. § 343(i) (non-standardized
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`flavors “may be designated as spices, flavorings, and colorings without naming each.”).
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`23. The Product’s front label of “Vanilla” without qualification gives reasonable
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`consumers the impression that only vanilla ingredients provide its taste. See 21 C.F.R. §
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`101.22(i)(1) (“If the food contains no artificial flavor which simulates, resembles or reinforces the
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`10 Donna Berry, Playing the natural flavor game, Food Business News, Jan. 1, 2018.
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`characterizing flavor, the name of the food on the principal display panel or panels of the label
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`shall be accompanied by the common or usual name of the characterizing flavor, e.g., ‘vanilla’”).
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`24. However, the Product contains non-vanilla flavors, indicated on the ingredient list as
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`“Natural Vanilla Flavor With Other Natural Flavors.”
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`INGREDIENTS: WATER, BROWN RICE SYRUP, HULLED HEMP SEED, CONTAINS
`1% OR LESS OF: DISODIUM PHOSPHATE, NATURAL VANILLA FLAVOR WITH
`OTHER NATURAL FLAVORS, RIBOFLAVIN (B2), TRICALCIUM PHOSPHATE,
`VITAMIN A PALMITATE, VITAMIN B12, VITAMIN D2, XANTHAN GUM.
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`25. These “other natural [non-vanilla] flavors” are not disclosed on the front label, even
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`though they enhance, resemble, simulate, reinforce and extend the “complex array of flavor notes
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`and aromas” of vanilla by providing, among other things, creamy, sweet and vanilla-like notes.11
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`26. For non-vanilla flavors, use of some flavor from the named source supplemented by
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`flavor from natural sources other than the named flavor requires a food to be labeled “With Other
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`Natural Flavor” (WONF). See 21 C.F.R. § 101.22(i)(1)(iii).12
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`27.
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`In contrast to non-standardized flavors, the addition of non-vanilla flavors to vanilla
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`which enhance a vanilla taste are required to be declared as artificial flavors. See Memorandum of
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`Conference, Status of Vanilla Flavoring with other Natural Flavors, July 8, 1966 (“The vanilla
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`standard determines vanilla as a standardized product. If other flavorings are added, then the
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`11 Vanilla, Taste Foundations, Virginia Dare Company.
`12 Hallagan and Drake, FEMA GRAS and U.S. Regulatory Authority: U.S. Flavor and Food Labeling Implications,
`Perfumer & Flavorist, Oct. 25, 2018; Charles Zapsalis et al., Food chemistry and nutritional biochemistry. Wiley,
`1985, p. 611 (describing the flavor industry’s goal to develop vanilla compound flavors “[T]hat Seem[s] to be
`Authentic or at Least Derived from a Natural Source”) (emphasis added).
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`vanilla is no longer a standardized product and should therefore be labeled artificial or imitation.”).
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`28. Vanilla WONF is increasingly used in place of vanilla extract13 due to record high
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`vanilla prices.14
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`29. Vanilla WONF can supposedly “provide the same vanilla taste expectation while
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`requiring a smaller quantity of vanilla beans,” or less vanilla than if only vanilla beans were used.15
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`30. The Vanilla WONF used in the Product contains vanilla extract but also contains one
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`or more added flavors which may include vanillin, maltol and/or piperonal.
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`31. According to representatives of FEMA, the flavor industry trade group:
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`The standards for vanilla extract and the other standardized vanilla products at 21
`CFR 169 expressly do not provide WONF designation. This means that a flavoring
`mixture of vanilla extract and vanillin produced through a “natural” process (i.e. a
`process consistent with the definition of natural flavor at 21 CFR Section 101.22(a)
`(3)) cannot be described as “vanilla extract WONF,” “vanilla WONF” or other
`similar descriptive terms.
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`“Labeling Vanilla Flavorings and Vanilla-Flavored Foods in the U.S.,” John B.
`Hallagan and Joanna Drake, The Flavor and Extract Manufacturers Association of
`the United States, Perfumer & Flavorist, Vol. 43 at p. 46, Apr. 25, 2018.
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`32. The Product’s non-vanilla flavors – its artificial flavors – are not disclosed on the
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`front label or the ingredient list, which is deceptive, misleading and in violation of law.
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`33.
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` A reasonable consumer cannot follow up or learn the truth that the Product contains
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`non-vanilla, artificial flavors from reading the Product’s ingredient list because defendant labels
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`the flavor ingredient as “Natural Vanilla Flavor With Other Natural Flavors.”
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`34. Reasonable consumers, observing the Product’s absence of qualifying front label
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`terms, will expect the Product to only be flavored by vanilla ingredients.
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`35. Defendant’s branding and packaging of the Product is designed to – and does –
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`13 Or vanilla flavoring.
`14 Uliana Pavlova, Vanilla Morphs From Plain to Premium as Prices Refuse to Go Down, Bloomberg, July 27, 2018.
`15 Donna Berry, Understanding the limitations of natural flavors, BakingBusiness.com, Jan. 16, 2018.
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`deceive, mislead, and defraud plaintiff and consumers.
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`36. Defendant sold more of the Product and at higher prices than it would have in the
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`absence of this misconduct, resulting in additional profits at the expense of consumers like
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`plaintiff.
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`37. The value of the Product that plaintiff purchased and consumed was materially less
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`than its value as represented by defendant.
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`38. Had plaintiff and class members known the truth, they would not have bought the
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`Product or would have paid less for them.
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`39. As a result of the false and misleading labeling, the Product is sold at a premium
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`price, approximately no less than $4.79 for cartons of 32 OZ (946 ML), excluding tax, compared
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`to other similar products represented in a non-misleading way.
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`Jurisdiction and Venue
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`40.
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`Jurisdiction is proper pursuant to 28 U.S.C. § 1332(d)(2) (Class Action Fairness Act
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`of 2005 or “CAFA”).
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`41. 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
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`diversity[.]” Gold v. New York Life Ins. Co., 730 F.3d 137, 141 (2d Cir. 2013).
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`42. Upon information and belief, the amount in controversy exceeds the threshold
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`because defendant sells significant quantities of the Product throughout this state.
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`43. Plaintiff Chandra Weintz is a citizen of New York.
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`44. Defendant Pacific Foods of Oregon, LLC is an Oregon limited liability company
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`with a principal place of business in Tualatin, Clackamas County, Oregon and upon information
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`and belief, at least one member of defendant is not a citizen of New York.
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`45. “Minimal diversity” exists because plaintiff and defendant are citizens of different
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`states.
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`46. Venue is proper in this judicial district because a substantial part of the events or
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`omissions giving rise to the claim occurred in this district, viz, the purchase of the Product by
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`plaintiff and the misleading representations relied upon by plaintiff.
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`47. This court has personal jurisdiction over defendant because it conducts and transacts
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`business, contracts to supply and supplies goods within New York.
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`Parties
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`48. Plaintiff Chandra Weintz is a citizen of New York, New York County, New York.
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`49. Defendant Pacific Foods of Oregon, LLC is a Oregon limited liability company with
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`a principal place of business in Tualatin, Oregon, Clackamas County.
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`50. Defendant sells the Product in grocery and health food stores, and through online
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`platforms, throughout the United States.
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`51. Defendant sells the Product through its website and Amazon.com.
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`52. During the relevant statutes of limitations, plaintiff purchased the Product within her
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`districts and/or State for personal consumption and/or use in reliance on the representations the
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`Product’s vanilla taste was only provided by vanilla.
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`53. Plaintiff purchased the Product from locations including Amazon.com during 2019
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`and/or 2020, among other occasions.
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`54. Plaintiff cannot be assured the Product’s labeling in the future will be accurate even
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`though she would like to purchase the Product provided its label and/or components are changed
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`so they are no longer misleading.
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`Class Allegations
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`55. The class will consist of all purchasers of the Product who reside in New York during
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`the applicable statutes of limitations.
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`56. Plaintiff will seek class-wide injunctive relief based on Rule 23(b) in addition to
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`monetary relief class.
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`57. Common questions of law or fact predominate and include whether defendant’s
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`representations were and are misleading and if plaintiff and class members are entitled to damages.
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`58. Plaintiff's claims and basis for relief are typical to other members because all were
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`subjected to the same unfair and deceptive representations and actions.
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`59. Plaintiff is an adequate representative because her interests do not conflict with other
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`members.
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`60. 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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`61.
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`Individual actions would risk inconsistent results, be repetitive and are impractical
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`to justify, as the claims are modest relative to the scope of the harm.
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`62. Plaintiff's counsel is competent and experienced in complex class action litigation
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`and intends to adequately and fairly protect class members’ interests.
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`63. Plaintiff seeks class-wide injunctive relief because the practices continue.
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`New York General Business Law (“GBL”), §§ 349 & 350
`(Consumer Protection Statutes)
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`64. Plaintiff incorporates by reference all preceding paragraphs.
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`65. Plaintiff and class members desired to purchase and consume products which were
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`as described and marketed by defendant and expected by reasonable consumers, given the product
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`type.
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`66. 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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`67. Defendant misrepresented the substantive, quality, compositional, organoleptic
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`and/or nutritional attributes of the Product.
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`68. The amount and proportion of the characterizing component, vanilla, has a material
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`bearing on price or consumer acceptance of the Products because consumers are willing to pay
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`more for such Products.
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`69. Plaintiff relied on the statements, omissions and representations of defendant, and
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`defendant knew or should have known the falsity of same.
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`70. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Negligent Misrepresentation
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`71. Plaintiff incorporates by reference all preceding paragraphs.
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`72. Defendant misrepresented the substantive, quality, compositional, organoleptic
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`and/or nutritional attributes of the Product.
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`73. The amount and proportion of the characterizing component, vanilla, has a material
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`bearing on price or consumer acceptance of the Products because consumers are willing to pay
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`more for such Products.
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`74. Defendant had a duty to disclose and/or provide non-deceptive marketing of the
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`Product and knew or should have known same were false or misleading.
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`75. This duty is based on defendant’s position as an entity which has held itself out as
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`having special knowledge and experience in the production, service and/or sale of the product type.
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`76. 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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`77. Plaintiff and class members reasonably and justifiably relied on these negligent
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`misrepresentations and omissions, which served to induce and did induce, the purchase of the
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`Product.
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`78. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Breaches of Express Warranty, Implied Warranty of Merchantability and
`Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
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`79. Plaintiff incorporates by reference all preceding paragraphs.
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`80. The Product was manufactured, labeled and sold by defendant and warranted to
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`plaintiff and class members that they possessed substantive, functional, nutritional, qualitative,
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`compositional, organoleptic, sensory, physical and other attributes which they did not.
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`81. The amount and proportion of the characterizing component, vanilla, has a material
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`bearing on price or consumer acceptance of the Products because consumers are willing to pay
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`more for such Products.
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`82. The amount and proportion of the characterizing component, vanilla, has a material
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`bearing on price or consumer acceptance of the Products because consumers are willing to pay
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`more for such Products.
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`83. Defendant had a duty to disclose and/or provide non-deceptive descriptions and
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`marketing of the Product.
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`84. This duty is based, in part, on defendant’s position as one of the most recognized
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`companies in the nation in this sector.
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`85. Plaintiff provided or will provide notice to defendant, its agents, representatives,
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`retailers and their employees.
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`86. 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 Product.
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`87. The Product did not conform to its affirmations of fact and promises due to
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`defendant’s actions and were not merchantable.
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`88. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Fraud
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`89. Plaintiff incorporates by reference all preceding paragraphs.
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`90. The amount and proportion of the characterizing component, vanilla, has a material
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`bearing on price or consumer acceptance of the Products because consumers are willing to pay
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`more for such Products.
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`91. Defendant’s fraudulent intent is evinced by its failure to accurately identify the
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`Product on the front label and ingredient list, when it knew its statements were neither true nor
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`accurate and misled consumers.
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`92. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`93. Plaintiff incorporates by reference all preceding paragraphs.
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`Unjust Enrichment
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`94. Defendant obtained benefits and monies because the Product was not as represented
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`and expected, to the detriment and impoverishment of plaintiff and class members, who seek
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`restitution and disgorgement of inequitably obtained profits.
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`Jury Demand and Prayer for Relief
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`Plaintiff demands a jury trial on all issues.
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` WHEREFORE, Plaintiff prays for judgment:
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`1. Declaring this a proper class action, certifying plaintiff as representative and the
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`undersigned as counsel for the class;
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`2. Entering preliminary and permanent injunctive relief by directing defendant to correct the
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`challenged practices to comply with the law;
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`3. Injunctive relief to remove, correct and/or refrain from the challenged practices and
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`representations, and restitution and disgorgement for members of the class pursuant to the
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`applicable laws;
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`4. Awarding monetary damages and interest pursuant to the common law and other statutory
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`claims;
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`5. Awarding costs and expenses, including reasonable fees for plaintiff's attorneys and
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`experts; and
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`6. Other and further relief as the Court deems just and proper.
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`Dated: July 13, 2020
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`14
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`Respectfully submitted,
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`Sheehan & Associates, P.C.
`/s/Spencer Sheehan
`Spencer Sheehan
`505 Northern Blvd Ste 311
`Great Neck NY 11021-5101
`Tel: (516) 303-0552
`Fax: (516) 234-7800
`spencer@spencersheehan.com
`E.D.N.Y. # SS-8533
`S.D.N.Y. # SS-2056
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`1:20-cv-05385
`United States District Court
`Southern District of New York
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`Plaintiff,
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`Chandra Weintz, individually and on behalf of all others similarly situated,
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` - against -
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`Pacific Foods of Oregon, LLC,
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` Defendant
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`Class Action Complaint
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`Sheehan & Associates, P.C.
`505 Northern Blvd Ste 311
`Great Neck NY 11021-5101
`Tel: (516) 303-0552
`Fax: (516) 234-7800
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`Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of
`New York State, certifies that, upon information, and belief, formed after an inquiry reasonable
`under the circumstances, the contentions contained in the annexed documents are not frivolous.
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`Dated: July 13, 2020
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` /s/ Spencer Sheehan
` Spencer Sheehan
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