Case 1:21-cv-01185 Document 1 Filed 02/09/21 Page 1 of 19
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
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`ALYSSA MAYS,
`individually and on behalf of all others
`similarly situated,
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`Plaintiffs,
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`v.
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`HAIN CELESTIAL GROUP, INC.,
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`Defendant.
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`CASE NO.:
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`CLASS ACTION COMPLAINT
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`JURY TRIAL DEMANDED
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`CLASS ACTION COMPLAINT
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`Plaintiff ALYSSA MAYS (“Plaintiff”), on behalf of herself and all others similarly
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`situated, by her undersigned attorneys, against Defendant, HAIN CELESTIAL GROUP, INC.
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`(hereafter “Hain” or “Defendant”), alleges the following based upon personal knowledge as to
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`herself and her own action, and, as to all other matters, alleges, upon information and belief and
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`investigation of her counsel, as follows:
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`INTRODUCTION
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`1 The products at issue are all baby foods sold by Defendant that contain one or more of the
`following ingredients: organic barley flour, organic chopped broccoli, organic date paste, organic
`cinnamon powder, organic brown flax milled, organic yellow papaya puree, organic whole what
`fine, organic red lentils, organic oat flakes, organic oat flour; organic vitamin pre-mix, organic
`brown rice flour, organic whole raisins, organic soft white wheat flour, organic spelt flour, organic
`barley malt extract, organic yellow split pea powder, medium grain whole rice, organic butternut
`squash puree, and organic blueberry puree, and include, Stage 1: Baby Chicken & Chicken Broth,
`Stage 2: Sweet Potato and Chicken Dinner; Stage 2: Chicken & Rice (the “Products”). Discovery
`may reveal additional products at issue.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
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`
`ALYSSA MAYS,
`individually and on behalf of all others
`similarly situated,
`
`
`Plaintiffs,
`
`v.
`
`HAIN CELESTIAL GROUP, INC.,
`
`
`Defendant.
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`
`
`
`
`CASE NO.:
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`CLASS ACTION COMPLAINT
`
`JURY TRIAL DEMANDED
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`
`CLASS ACTION COMPLAINT
`
`
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`Plaintiff ALYSSA MAYS (“Plaintiff”), on behalf of herself and all others similarly
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`situated, by her undersigned attorneys, against Defendant, HAIN CELESTIAL GROUP, INC.
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`(hereafter “Hain” or “Defendant”), alleges the following based upon personal knowledge as to
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`herself and her own action, and, as to all other matters, alleges, upon information and belief and
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`investigation of her counsel, as follows:
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`INTRODUCTION
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`1 The products at issue are all baby foods sold by Defendant that contain one or more of the
`following ingredients: organic barley flour, organic chopped broccoli, organic date paste, organic
`cinnamon powder, organic brown flax milled, organic yellow papaya puree, organic whole what
`fine, organic red lentils, organic oat flakes, organic oat flour; organic vitamin pre-mix, organic
`brown rice flour, organic whole raisins, organic soft white wheat flour, organic spelt flour, organic
`barley malt extract, organic yellow split pea powder, medium grain whole rice, organic butternut
`squash puree, and organic blueberry puree, and include, Stage 1: Baby Chicken & Chicken Broth,
`Stage 2: Sweet Potato and Chicken Dinner; Stage 2: Chicken & Rice (the “Products”). Discovery
`may reveal additional products at issue.
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`Case 1:21-cv-01185 Document 1 Filed 02/09/21 Page 2 of 19
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`THE PARTIES
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`2 See https://www.earthsbest.com/why-earths-best/.
`3 Id.
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`2
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`Case 1:21-cv-01185 Document 1 Filed 02/09/21 Page 3 of 19
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`Stage 2: Sweet Potato and Chicken Dinner, and Stage 2: Chicken & Rice. Plaintiff purchased the
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`Products primarily from Kroger in Mount Orab, Ohio from around March of 2020, until she
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`became concerned about the presence of heavy metals in February 2021.
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`10.
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`Prior to purchasing the Products, Plaintiff Mays saw Defendant’s nutritional claims
`33 L‘
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`on the packaging, including “Earth’s Best,
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`organic” and “nurturing baby the purest way,” which
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`she relied on in deciding to purchase the Products. 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 Mays was unaware that the Products contained any level
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`of heavy metals, including inorganic arsenic, and would not have purchased the food ifthat was
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`fully disclosed, or she would not have paid as much for the Products if that information was fully
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`disclosed. She stopped purchasing the Products in February 2021, when she became aware that the
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`Products contained heavy metals. Plaintiff Mays was injured by paying a premium for the Products
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`that have no or de minimis valueior whose value was at least less than what she paid for the
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`Productsibased on the presence of the alleged heavy metals.
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`1 1.
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`Defendant Hain Celestial Group,
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`Inc.
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`is an American food company with its
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`headquarters located in Lake Success, New York.
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`2005 (hereinafter referred to as “‘CAFA”) codified as 28 U.S.C. § l332(d)(2) because the claims
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`of the proposed Class members exceed $5,000,000 and because Defendant is a citizen of a different
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`state than most Class members.
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`3
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`— 1
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`JURISDICTION AND VENUE
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`This Court has subject matter jurisdiction under the Class Action Fairness Act of
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`2.
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`Case 1:21-cv-01185 Document 1 Filed 02/09/21 Page 4 of 19
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`FACTUAL ALLEGATIONS
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`4 https://www.researchandmarkets.com/reports/338658/baby_foods_and_infant_formula_global_
`market?utm_source=dynamic&utm_medium=BW&utm_code=b559sk&utm_campaign=138612
`+-+Global+Baby+Foods+and+Infant+Formula+Market+Assessment+2020-2025&utm_exec=jo
`ca220bwd.
`5 Id.
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`4
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`Case 1:21-cv-01185 Document 1 Filed 02/09/21 Page 5 of 19
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`Prom:
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`urturing Baby The Purest Way "
`Nutritionmm_
`Facts
`Total Fat
`‘ 5.
`Serving Size
`"OHS F0?
`1 Jar (1 139) mim—
`cqlories 90
`% Dnllqulue: Protein 20% - ‘i is“ ‘ L 3i
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`-
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`,
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`Ingredients: Organic Sweet Pirates i :-
`‘ Brown Rice Flour, Organic Ap’lCC' 3.9: .
`Dist. byThe Hain Celestial Group, inc Me,
`‘ Cenified Organic by QAI
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`:
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`19.
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`Defendant’s packaging of the Products also does not disclose the presence, or risk
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`of, heavy metals.
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`5
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`Case 1:21-cv-01185 Document 1 Filed 02/09/21 Page 6 of 19
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`6 U.S. House of Representatives Subcommittee on Economic and Consumer Policy, Staff Report,
`“Baby Foods are Tainted with Dangerous Levels of Arsenic, Lead, Cadmium and Mercury (Feb.
`4, 2021).
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`6
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`Case 1:21-cv-01185 Document 1 Filed 02/09/21 Page 7 of 19
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`Hain sold finished baby food products containing as much as 129 parts per
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`billion (ppb) inorganic arsenic. Hain used ingredients, including brown rice
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`flour, that had tested as high as 309 ppb arsenic;
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`Hain used ingredients containing as much as 352 ppb lead. Hain used many
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`ingredients with high lead content, including 88 that tested over 20 ppb lead
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`and six that tested over 200 ppb lead;
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`Hain used 102 ingredients in its baby food that tested over 20 ppb cadmium.
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`Some tested much higher, up to 260 ppb cadmium;
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`Hain used 14 ingredients that contained more than 100 ppb cadmium; including
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`barley flour that registered at 260 ppb cadmium. That is thirteen times the EU’s
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`lax upper limit on cadmium in baby food;
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`Hain does not even test for mercury in baby food;
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`Hain set an internal limit of 200 ppb for lead in five ingredientsiforty times
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`higher than FDA’s guidance for bottled water. By doing so, Hain justified
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`accepting lentil flour with 110 ppb lead and quinoa flour with 120 ppb lead.
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`These surpass every existing regulatory standard for lead; and
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`Hain set an internal standard of200 ppb for arsenic, lead; and cadmium in some
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`of its
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`ingredients. Hain justified deviations above its
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`ingredient
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`testing
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`standards based on “theoretical calculations,” even after Hain admitted to F DA
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`that its testing underestimated final product toxic heavy metal levels.
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`26.
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`These results are multiples higher than allowed under existing regulations for other
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`products. For example; the Food and Drug Administration has set the maximum allowable levels
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`in bottled water at 10 ppb inorganic arsenic, 5 ppb lead; and 5 ppb cadmium; and the Environmental
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`7
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`Case 1:21-cv-01185 Document 1 Filed 02/09/21 Page 8 of 19
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`7 See https://www.cdc.gov/nceh/lead/prevention/pregnant.htm.
`8 See https://www.epa.gov/ground-water-and-drinking-water/basic-information-about-lead-drinki
`ng-water.
`9 G. Schwalfenberg, I. Rodushkinb, S.J. Genuis, “Heavy metal contamination of prenatal
`vitamins,” Toxicology Reports 5 at 392 (2018).
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`8
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`Case 1:21-cv-01185 Document 1 Filed 02/09/21 Page 9 of 19
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`10 See US Report, supra n.3, at 13
`11 Id. at 10.
`12 Id.
`13 Id.
`14 Id.
`15 Id. at 12.
`16 Id.
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`9
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`Case 1:21-cv-01185 Document 1 Filed 02/09/21 Page 10 of 19
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`Plaintiff Relies Upon the Products’ Label to Purchase the Products
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`17 Id.
`18 Id.
`19 Id.
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`10
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`Case 1:21-cv-01185 Document 1 Filed 02/09/21 Page 11 of 19
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`45.
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`Plaintiff later learned that the Products contain unsafe levels of heavy metals and
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`inorganic arsenic. Plaintiff was deceived as a result of Defendant’s false and misleading marketing
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`practices. Plaintiff believed she was buying a product that was providing her baby with a healthy
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`organic baby food.
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`46.
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`Plaintiff would not have purchased or paid a price premium for the Products had
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`she known they contained unsafe levels of heavy metals and inorganic arsenic.
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`47.
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`Plaintiff is in the same Class as all other consumers who purchased Defendant’s
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`Products during the relevant time period. Plaintiff and the Class members were in fact misled by
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`Defendant’s misrepresentations in respect to the Products. Plaintiff and Class members would have
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`purchased other foods for their children if they had not been deceived by the misleading and
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`deceptive labeling of the Products by Defendant.
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`CLASS ACTION ALLEGATIONS
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`Plaintiff brings this action individually and on behalf of all other persons similarly
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`48.
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`situated pursuant to Federal Rule of Civil Procedure 23. The Class definition(s) may depend on
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`the information obtained throughout discovery.
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`49.
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`Plaintiff Mays (the “Ohio Plaintiff”) seeks certification ofthe following subclass
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`(the “Class” or the “Ohio Class”):
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`All persons in the State of Ohio who purchased and consumed the Products
`from the beginning of any applicable limitations period through the date of
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`class certification.
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`50.
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`Excluded from the Class are the Defendant, and any entities in which the Defendant
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`has controlling interest, the Defendant’s agents, employees and their legal representatives, any
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`Judge to whom this action is assigned and any member ofsuch Judge’s staffand immediate family,
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`and Plaintiff’s counsel, their staffmembers, and their immediate family.
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`11
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`Case 1:21-cv-01185 Document 1 Filed 02/09/21 Page 12 of 19
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`51.
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`Certification of Plaintiff’s claims for class—wide treatment is appropriate because
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`Plaintiff can prove the elements of her claims on a class—wide basis using the same evidence as
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`would be used to prove those elements in individual actions alleging the same claims.
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`52.
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`Numerosity — Fed. R. Civ. P. 23(a)(1). The members of the Class is so numerous
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`that their individual joinder herein is impracticable. On information and belief, members of the
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`Class number in the thousands to tens of thousands. The number of members in the Class is
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`presently unknown to Plaintiff but may be verified by Defendant’s records. Members of the Class
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`may be notified ofthe pendency ofthis action by mail, email, Internet postings, and/or publication.
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`53.
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`Commonality and Predominance — Fed. R. Civ. P. 23(a)(2) and 23(b)(3).
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`Common questions of law and fact exist as to all members of the Class and predominate over
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`questions affecting only individual members of the Class. Such common questions oflaw or fact
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`include, but are not limited to, the following:
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`Whether the Products contain dangerous levels of heavy metals;
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`Whether the Products are ‘organic,’;
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`Whether the marketing, advertising, packaging, labeling, and other promotional
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`materials for the Products are deceptive;
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`Whether Defendant’s actions violate the state consumer fraud statutes invoked
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`below;
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`Whether Defendant’s actions constitute common law fraud;
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`Whether Plaintiff and members of the Class were damaged by Defendant’s
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`conduct;
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`Whether Defendant was unjustly enriched at the expense of Plaintiff and Class
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`members; and
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`12
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`Case 1:21-cv-01185 Document 1 Filed 02/09/21 Page 13 of 19
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`Whether Plaintiff and Class members are entitled to injunctive relief.
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`54.
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`Typicality — Fed. R. Civ. P. 23(a)(3). The claims 0fthe named Plaintiffare typical
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`ofthe claims of other members of the Class. All members ofthe Class were comparably injured
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`by Defendant’s conduct described above, and there are no defenses available to Defendant that are
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`unique to Plaintiffs or any particular Class members.
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`55.
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`Adequacy of Representation — Fed. R. Civ. P. 23(a)(4). Plaintiff is an adequate
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`Class representative because her interests do not conflict with the interests of other Class members,
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`she has retained class counsel competent to prosecute class actions and financially able to represent
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`the Class.
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`56.
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`Declaratory and Injunctive Relief — Fed. R. Civ. P. 23(b)(2). Defendant has
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`acted or refused to act on grounds generally applicable to Plaintiff and the other Class members,
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`thereby making appropriate final injunctive relief and declaratory relief, as described below, with
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`respect to the Class members as a whole. In particular, Plaintiff seeks to certify a Class to enjoin
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`Defendant from selling or otherwise distributing Products until such time that Defendants can
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`demonstrate to the Court’s satisfaction that Products are accurately labeled.
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`57.
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`Superiority — Fed. R. Civ. P. 23(b)(3). A class action is superior to any other
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`means of adjudication for this controversy. It would be impracticable for members of the Class to
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`individually litigate their own claims against Defendant because the damages suffered by Plaintiff
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`and the members of the Class are relatively small compared to the cost of individually litigating
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`their claims. Individual litigation would create the potential for inconsistentjudgments and delay
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`and expenses to the court system. A class action provides an efficient means for adjudication with
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`fewer management difficulties and comprehensive supervision by a single court.
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`13
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`Case 1:21-cv-01185 Document 1 Filed 02/09/21 Page 14 of 19
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`(On behalf of the Ohio Class)
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`14
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`Case 1:21-cv-01185 Document 1 Filed 02/09/21 Page 15 of 19
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`62.
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`Plaintiff and the Ohio Class members are “consumers” as that term is defined in
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`0.R.C. § 1345.01(D).
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`63.
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`Defendant advertised, offered, or sold goods or services in Ohio and engaged in
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`trade or commerce directly or indirectly affecting the people of Ohio and the Ohio Class members.
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`64.
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`Defendant’s
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`conduct
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`alleged
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`above
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`constitutes
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`unfair,
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`deceptive,
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`and
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`unconscionable acts and practices in connection with a consumer transaction in violation ofO.R.C.
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`§ 1345.02 and § 1345.03.
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`65.
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`Defendant’s conduct was also unfair, deceptive, and unconscionable because
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`Defendant required the Ohio Plaintiff and the Ohio Class to enter into consumer transactions on
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`terms that Defendant knew were substantially one—sided in favor of Defendant (Ohio Rev. Code
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`Ann. § 1345.03(B)(5)).
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`66.
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`Defendant’s conduct as alleged above and throughout this Complaint constitutes an
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`act or practice previously declared to be deceptive or unconscionable by rule adopted under
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`division (B)(2) of§ 1345.05 and previously determined by Ohio courts to violate Ohio’s Consumer
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`Sales Practices Act and was committed after the decisions containing these determinations were
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`made available for public inspection under division (A)(3) of 0.R.C. § 1345.05. The applicable
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`rule and Ohio court opinions include but are not limited to: OAC 109:4—3—16; Cordray v. Dannon
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`09., PIP No. 10002917 (Dec. 22, 2010); Brown v. Hartman, PIF No. 10000070 (Nov. 15, 1982);
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`and In re United Egg Producers, PlF No. 10002495 (00. 12, 2006).
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`67.
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`These misrepresentations constitute the use by Defendant of unconscionable
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`commercial practices, deception, and misrepresentation and, thus constitutes multiple, separate
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`violations of Ohio Revised Code § 1345.01, et seq.
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`15
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`Case 1:21-cv-01185 Document 1 Filed 02/09/21 Page 16 of 19
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`COUNT 2
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`UNJUST ENRICH MENT
`(On Behalf of the Ohio Class)
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`16
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`Case 1:21-cv-01185 Document 1 Filed 02/09/21 Page 17 of 19
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`WHEREFORE, Plaintiff, individually and on behalf of the other members of the Class
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`proposed in this Complaint, respectfully requests that the Court enter judgment as follows:
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`17
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`Case 1:21-cv-01185 Document 1 Filed 02/09/21 Page 18 of 19
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`Dated: February 9, 2021
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` Respectfully submitted,
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`/s/ Gary E. Mason
`Gary E. Mason
`MASON LIETZ & KLINGER LLP
`5101 Wisconsin Avenue NW, Suite 305
`Washington, DC 20016
`Phone: (202) 429-2290
`Fax: (202) 429-2294
`gmason@masonllp.com
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`Jonathan Shub
`Kevin Laukaitis
`SHUB LAW FORM LLC
`134 Kings Highway E., 2nd Floor
`Haddonfield, NJ 08033
`Phone: (856) 772-7200
`Fax: (856) 210-9088
`jshub@shublawyers.com
`klaukaitis@shublawyers.com
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`18
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`Case 1:21-cv-01185 Document 1 Filed 02/09/21 Page 19 of 19
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`Gary M. Klinger*
`MASON LIETZ & KLINGER LLP
`227 W. Monroe Street, Suite 2100
`Chicago, IL 60606
`Phone: (202) 429-2290
`Fax: (202) 429-2294
`gklinger@masonllp.com
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`Jeffrey S. Goldenberg*
`GOLDENBERG SCHNEIDER L.P.A.
`4445 Lake Forest Drive, Suite 490
`Cincinnati, OH 45242
`Phone: (513) 345-8297
`Fax: (513) 345-8294
`jgoldenberg@gs-legal.com
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`Charles E. Schaffer*
`David C. Magagna Jr.*
`LEVIN, SEDRAN & BERMAN, LLP
`510 Walnut Street, Suite 500
`Philadelphia, PA 19106
`Phone: (215) 592-1500
`Fax: (215) 592-4663
`cschaffer@lfsblaw.com
`dmagagna@lfsblaw.com
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`Attorneys for Plaintiff and the proposed
`Class
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`*pro hac vice to be filed
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`19
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