Case 1:22-cv-06215-JPO Document 1 Filed 07/21/22 Page 1 of 16
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`MANHATTAN COURTHOUSE
`
`Charlene Vazquez, individually and on behalf
`of all others similarly situated,
`
`1:22-cv-06215
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Walmart, Inc.,
`
`
`
`Defendant,
`
`Jury Trial Demanded
`
`Plaintiff alleges upon information and belief, except for allegations pertaining to Plaintiff,
`
`which are based on personal knowledge:
`
`1. Walmart, Inc. (“Defendant”) manufactures, labels, markets, and sells granola bars
`
`represented as containing oats and honey under the Great Value brand (“Product”).
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`MANHATTAN COURTHOUSE
`
`Charlene Vazquez, individually and on behalf
`of all others similarly situated,
`
`1:22-cv-06215
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Walmart, Inc.,
`
`
`
`Defendant,
`
`Jury Trial Demanded
`
`Plaintiff alleges upon information and belief, except for allegations pertaining to Plaintiff,
`
`which are based on personal knowledge:
`
`1. Walmart, Inc. (“Defendant”) manufactures, labels, markets, and sells granola bars
`
`represented as containing oats and honey under the Great Value brand (“Product”).
`
`
`
`
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`Case 1:22-cv-06215-JPO Document 1 Filed 07/21/22 Page 2 of 16
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`2.
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`Relevant label statements include “Oats & Honey – Crunchy Granola Bars,”
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`“Crunchy Oats …Sweet Honey,” “Made With Whole Grains,” “19g Whole Grain Per Serving”
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`and pictures of freshly harvested oats next to a dripping block of a honeycomb on what appears to
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`be a wooden picnic table.
`
`3.
`
`The representations tell consumers the Product will contain a non-de minimis amount
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`of honey, is primarily sweetened with honey and contains limited ingredients based on the
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`references to only oats and honey.
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`4.
`
` The representations are false and misleading because the Product contains
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`ingredients other than oats and honey and contains a de minimis amount of honey relative to
`
`conventional sugars.
`
`I.
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`SUGAR IS INCREASINGLY DISFAVORED AS SWEETENER
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`5. According to the National Institutes of Health (“NIH”), there is a direct link between
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`excess sugar consumption and obesity.
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`6. Doctors and nutritionists agree that excess sugar intake leads to as weight gain, Type
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`2 diabetes, dental caries, metabolic syndrome, heart disease, cancer, and even dementia.
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`7. One food industry insider stated that “[consumer] demand for sugar reduction [cuts]
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`across food and beverage categories.”
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`8.
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`Speakers at the International Sweetener conference affirmed that “sugar avoidance
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`was a macro trend ‘that is here to stay and will only increase.’”
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`9.
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`Surveys by Information Resources, Inc. (“IRI”) show that 58% of consumers are
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`avoiding sugar, and over 80% are doing so for reasons related to health and weight issues.
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`10.
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`In place of sugar, consumers are increasingly seeking foods sweetened with honey.
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`11. This is confirmed by data obtained from the USDA, showing that the volume of
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`2
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`Case 1:22-cv-06215-JPO Document 1 Filed 07/21/22 Page 3 of 16
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`honey has almost doubled in the past 35 years, from 339 million to 603 million pounds.1
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`12. For the first time in history in 2020, honey surpassed white sugar as America’s
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`number one sweetener.
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`13. At least 50% of consumers are willing to pay more for foods primarily sweetened
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`with honey.
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`14. Roughly 60% of consumers look for references to honey on a food’s front label when
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`deciding what to buy.
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`15. There are several reasons why consumers seek foods sweetened with honey instead
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`of sugar.
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`16. First, almost three-quarters of consumers rate honey as “better-for-you” than sugar.
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`17. Second, 93% of consumers recognize that honey is a natural sweetener, because
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`unlike sugar, it is not heavily refined through harsh unnatural processes.
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`18. According to the director of the National Honey Board, “Honey fits perfectly with
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`consumers’ desire to know where their food comes from and their preference for foods that are
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`unprocessed,” because it “is made by bees from the nectar of flowers.”
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`19. Third, honey has a lower glycemic index than sugar, causing slower fluctuations in
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`blood sugar and insulin levels.
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`20. Refined sugars lead to rapid spikes of blood sugar, with quick spurts of energy
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`followed by sharp declines, characterized by tiredness, headaches, and difficulties in
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`concentrating.
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`21. Fourth, honey is sweeter than sugar, so less of it is needed to achieve the same level
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`of sweetness.
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`1 USDA/ERS.
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`3
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`Case 1:22-cv-06215-JPO Document 1 Filed 07/21/22 Page 4 of 16
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`22. Fifth, unlike sugar, honey has small but significant amounts of nutrients such as
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`vitamins, minerals, enzymes, phytonutrients and antioxidants.
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`23. These benefits promote immunity and aid digestion.
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`II. PRODUCT CONTAINS DE MINIMIS AMOUNT OF HONEY
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`24. The front label promotes honey as the main ingredient in the Product after oats,
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`shown through the name, “Oats & Honey,” “Sweet Honey,” and a block of honeycomb in a pool
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`of honey.
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`25. The representations are false and misleading because the amount of honey is
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`negligible and de minimis, shown through the ingredient list.
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`GRAIN
`INGREDIENTS: WHOLE
`ROLLED OATS, SUGAR, HIGH OLEIC
`CANOLA OIL, WHOLE GRAIN BROWN
`RICE FLOUR, CONTAINS LESS THAN
`2% OF HONEY, SALT, BROWN SUGAR
`SYRUP, BAKING SODA, SOY LECITHIN,
`NATURAL FLAVORS, PEANUT FLOUR.
`
`
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`26. The primary sweetening ingredient is “sugar,” listed second after “whole grain rolled
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`oats.”
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`27. The Product “Contains Less Than 2% of Honey,” the fifth ingredient, after canola
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`oil and rice flour, but before salt.
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`28. Consumers relying on the front label will be satisfied that whole grain oats are the
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`main ingredient but will be dissatisfied honey is a minor ingredient, especially compared to the
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`amount of sugar.
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`29. The front label promotion of only oats and honey dovetails with increased consumer
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`demand for foods with limited, fewer ingredients.
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`4
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`Case 1:22-cv-06215-JPO Document 1 Filed 07/21/22 Page 5 of 16
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`30. Packaged Facts’ proprietary National Consumer Survey revealed that “two-thirds of
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`consumers prefer foods and beverages with fewer ingredients.”
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`31. Consumer research company Mintel concluded that 59% of consumers believe that
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`the fewer ingredients a product has, the healthier it is.
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`32. The representations are misleading because the Product is not made with only oats
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`and honey and contains numerous other ingredients.
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`33. There is no commercial or technological barrier to formulating a granola or snack
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`bar which only contains oats and honey.
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`34. There is no functional barrier to producing a granola or snack bar which contains
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`honey as the primary, significant or exclusive sweetening ingredient.
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`35. This is shown through the snack bars made by HoneyBar, which state, “Ingredients
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`Held Together Only With Honey” and list honey in the ingredients without other sweeteners.
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`5
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`Case 1:22-cv-06215-JPO Document 1 Filed 07/21/22 Page 6 of 16
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`36. Defendant makes other representations and omissions with respect to the Product
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`which are false and misleading.
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`37. Reasonable consumers must and do rely on a company to honestly and lawfully
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`market and describe the components, attributes, and features of a product, relative to itself and
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`other comparable products or alternatives.
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`38. The value of the Product that Plaintiff purchased was materially less than its value
`
`as represented by Defendant.
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`39. 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.
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`40. Had Plaintiff known the truth, she would not have bought the Product or would have
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`paid less for it.
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`41. As a result of the false and misleading representations, the Product is sold at a
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`premium price, approximately no less than $1.99 for six packages containing two bars each (42g),
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`excluding tax and sales, higher than similar products represented in a non-misleading way, and
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`higher than it would be sold for absent the misleading representations and omissions.
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`Jurisdiction and Venue
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`42.
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`Jurisdiction is based on the Class Action Fairness Act of 2005 (“CAFA”). 28 U.S.C.
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`§ 1332(d)(2).
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`43. The aggregate amount in controversy exceeds $5 million, including any statutory and
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`punitive damages, exclusive of interest and costs.
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`44. The Product has been sold at hundreds of locations in the states covered by the classes
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`Plaintiff seeks to represent, with the representations challenged here, for several years.
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`45. Plaintiff Charlene Vazquez is a citizen of New York.
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`6
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`Case 1:22-cv-06215-JPO Document 1 Filed 07/21/22 Page 7 of 16
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`46. Defendant Walmart, Inc. is a Delaware corporation with a principal place of business
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`in Bentonville, Benton County, Arkansas.
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`47. The class of persons Plaintiff seeks to represent includes persons who are citizens of
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`different states from which Defendant is a citizen.
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`48. The members of the class Plaintiff seeks to represent are more than 100, because the
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`Product has been sold for several years, with the representations described here, in hundreds of
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`locations, in the States covered by Plaintiff’s proposed classes.
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`49. The Product is available to consumers from Defendant’s retail stores and its website.
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`50. Venue is in this District because a substantial part of the events or omissions giving
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`rise to these claims occurred here including Plaintiff’s purchase, consumption, and/or awareness
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`and/or experiences with the issues described here.
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`51. Venue is at the Manhattan Courthouse because Plaintiff resides in Bronx County.
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`52. Plaintiff is a citizen of Bronx, New York, Bronx County.
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`Parties
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`53. Defendant is a Delaware corporation with a principal place of business in
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`Bentonville, Arkansas, Benton County.
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`54. Walmart is an American multinational retail corporation that operates a chain of over
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`5,000 supercenters throughout the nation, selling everything from furniture to groceries.
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`55. While Walmart sells leading national brands, it also sells a large number of products
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`under one of its private label brands, Great Value.
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`56. Private label products are made by third-party manufacturers and sold under the
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`name of the retailer, or its sub-brands.
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`57. Previously referred to as “generic” or “store brand,” private label products have
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`7
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`Case 1:22-cv-06215-JPO Document 1 Filed 07/21/22 Page 8 of 16
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`increased in quality, and often are superior to their national brand counterparts.
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`58. Products under the Great Value brand have an industry-wide reputation for quality
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`and value.
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`59.
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`In releasing products under the Great Value brand, Defendant’s foremost criteria was
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`to have high-quality products that were equal to or better than the national brands.
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`60. Defendant is able to get national brands to produce its private label items due its loyal
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`customer base and tough negotiating.
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`61. That Great Value branded products met this high bar was proven by focus groups,
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`which rated them above the name brand equivalent.
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`62. Private label products generate higher profits for retailers because national brands
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`spend significantly more on marketing, contributing to their higher prices.
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`63. A survey by The Nielsen Co. “found nearly three out of four American consumers
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`believe store brands are good alternatives to national brands, and more than 60 percent consider
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`them to be just as good.”
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`64. Private label products under the Great Value brand benefit by their association with
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`consumers’ appreciation for the Walmart brand as a whole.
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`65. The development of private label items is a growth area for Walmart, as they select
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`only top suppliers to develop and produce Great Value products.
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`66. These facts show a company with a significant amount of goodwill and equity when
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`it comes to consumer purchasing.
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`67. The Product is available to consumers from Defendant’s retail stores and its website.
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`68. Plaintiff purchased the Product on one or more occasions within the statutes of
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`limitations for each cause of action alleged, at locations including Walmart, 26 W Merritt Blvd,
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`8
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`Case 1:22-cv-06215-JPO Document 1 Filed 07/21/22 Page 9 of 16
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`Fishkill, NY 12524, during the fall of 2021 and winter of 2022, and/or among other times.
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`69. Plaintiff believed and expected that the Product was made with honey as its primary
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`sweetening ingredient instead of sugar, contained a non-de minimis amount of honey as an
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`ingredient and was made of oats and honey because that is what the representations and omissions
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`said and implied, on the front label and the absence of any reference or statement elsewhere on the
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`Product.
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`70. Plaintiff relied on the words, terms coloring, descriptions, layout, placement,
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`packaging, tags, and/or images on the Product, on the labeling, statements, omissions, claims, and
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`instructions, made by Defendant or at its directions, in digital, print and/or social media, which
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`accompanied the Product and separately, through in-store, digital, audio, and print marketing.
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`71. Plaintiff is part of the 58% of consumers who are avoiding sugar and trying to
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`consume less sugar, and part of the 80% who are doing so for reasons related to health issues.
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`72. Plaintiff is one of the more than 50% of consumers who is willing to pay, and does
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`pay, more for foods primarily or exclusively sweetened with honey or contain honey as a
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`significant sweetening ingredient.
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`73. Plaintiff is part of the 60% of consumers who look for references to honey on a food’s
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`front label when deciding what to buy.
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`74. Plaintiff is part of the “two-thirds of consumers [who] prefer foods and beverages
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`with fewer ingredients.”
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`75. Plaintiff is amongst the 59% of consumers who believe that the fewer ingredients a
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`product has, the healthier it is.
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`76. Plaintiff expected the Product contained either only oats and honey or oats, honey,
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`and only other limited ingredients, because the front label promoted only oats and honey.
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`9
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`Case 1:22-cv-06215-JPO Document 1 Filed 07/21/22 Page 10 of 16
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`77. Plaintiff bought the Product at or exceeding the above-referenced price.
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`78. Plaintiff would not have purchased the Product if she knew the representations and
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`omissions were false and misleading or would have paid less for it.
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`79. Plaintiff chose between Defendant’s Product and products represented similarly, but
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`which did not misrepresent their attributes, requirements, instructions, features, and/or
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`components.
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`80. The Product was worth less than what Plaintiff paid, and she would not have paid as
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`much absent Defendant’s false and misleading statements and omissions.
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`Class Allegations
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`81. Plaintiff seeks certification under Fed. R. Civ. P. 23 of the following classes:
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`New York Class: All persons in the State of New
`York who purchased the Product during the statutes
`of limitations for each cause of action alleged; and
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`Consumer Fraud Multi-State Class: All persons in
`the States of Montana, Wyoming, Idaho, Kentucky,
`West Virginia, North Dakota, Mississippi, and Utah
`who purchased the Product during the statutes of
`limitations for each cause of action alleged.
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`82. Common questions of issues, law, and fact predominate and include whether
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`Defendant’s representations were and are misleading and if Plaintiff and class members are entitled
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`to damages.
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`83. Plaintiff’s claims and basis for relief are typical to other members because all were
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`subjected to the same unfair, misleading, and deceptive representations, omissions, and actions.
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`84. Plaintiff is an adequate representative because her interests do not conflict with other
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`members.
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`85. 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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`Case 1:22-cv-06215-JPO Document 1 Filed 07/21/22 Page 11 of 16
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`86.
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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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`87. Plaintiff’s counsel is competent and experienced in complex class action litigation
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`and intends to protect class members’ interests adequately and fairly.
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`New York General Business Law §§ 349 and 350
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`(Consumer Protection Statute)
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`88. Plaintiff incorporates by reference all preceding paragraphs.
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`89. Plaintiff believed the Product contained a non-de minimis amount of honey, that
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`honey was the primary, exclusive, or significant sweetening ingredient instead of sugar, and that
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`it contained either only oats and honey or a limited number of ingredients beyond these two.
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`90. Defendant’s false, misleading, and deceptive representations and omissions are
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`material in that they are likely to influence consumer purchasing decisions.
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`91. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`92. Plaintiff relied on the representations and omissions to believe the Product contained
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`a non-de minimis amount of honey, that honey was the primary, exclusive, or significant
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`sweetening ingredient instead of sugar, and that it contained either only oats and honey or a limited
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`number of ingredients beyond these two.
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`93. Plaintiff would not have purchased the Product or paid as much if the true facts had
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`been known, suffering damages.
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` Violation of State Consumer Fraud Acts
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`(On Behalf of the Consumer Fraud Multi-State Class)
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`94. The Consumer Fraud Acts of the States in the Consumer Fraud Multi-State Class are
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`11
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`Case 1:22-cv-06215-JPO Document 1 Filed 07/21/22 Page 12 of 16
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`similar to the consumer protection statute invoked by Plaintiff and prohibit the use of unfair or
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`deceptive business practices in the conduct of commerce.
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`95. The members of the Consumer Fraud Multi-State Class reserve their rights to assert
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`their consumer protection claims under the Consumer Fraud Acts of the States they represent
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`and/or the consumer protection statute invoked by Plaintiff.
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`96. Defendant intended that members of the Consumer Fraud Multi-State Class would
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`rely upon its deceptive conduct.
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`97. As a result of Defendant’s use of artifice, and unfair or deceptive acts or business
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`practices, the members of the Consumer Fraud Multi-State Class sustained damages.
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`98. Defendant’s conduct showed motive and a reckless disregard of the truth such that
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`an award of punitive damages is appropriate.
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`Breaches of Express Warranty,
`Implied Warranty of Merchantability/Fitness for a Particular Purpose and
`Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
`
`99. The Product was manufactured, identified, distributed, marketed, and sold by
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`Defendant and expressly and impliedly warranted to Plaintiff that it contained a non-de minimis
`
`amount of honey, that honey was the primary, exclusive, or significant sweetening ingredient
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`instead of sugar, and that it contained either only oats and honey or a limited number of ingredients
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`beyond these two.
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`100. Defendant directly marketed the Product to Plaintiff and consumers through its
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`advertisements and marketing, through various forms of media, on the packaging, in print
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`circulars, direct mail, product descriptions, and targeted digital advertising.
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`101. Defendant knew the product attributes that potential customers like Plaintiff were
`
`seeking and developed its marketing and labeling to directly meet those needs and desires.
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`12
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`Case 1:22-cv-06215-JPO Document 1 Filed 07/21/22 Page 13 of 16
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`102. Defendant was aware of consumer demand for honey compared to sugar, and the
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`desire for foods with limited, fewer ingredients.
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`103. Defendant’s representations about the Product were conveyed in writing and
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`promised it would be defect-free, and Plaintiff understood this meant it contained a non-de minimis
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`amount of honey, that honey was the primary, exclusive, or significant sweetening ingredient
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`instead of sugar, and that it contained either only oats and honey or a limited number of ingredients
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`beyond these two.
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`104. Defendant’s representations affirmed and promised that the Product contained a non-
`
`de minimis amount of honey, that honey was the primary, exclusive, or significant sweetening
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`ingredient instead of sugar, and that it contained either only oats and honey or a limited number of
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`ingredients beyond these two.
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`105. Defendant described the Product so Plaintiff and consumers believed it was made
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`with honey as its primary sweetening ingredient instead of sugar, contained a non-de minimis
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`amount of honey as an ingredient and was made of oats and honey, which became part of the basis
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`of the bargain that it would conform to its affirmations and promises.
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`106. 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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`107. This duty is based on Defendant’s outsized role in the market for this type of Product,
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`a trusted company, known for its authentic, high-quality products, honestly marketed to
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`consumers.
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`108. Plaintiff recently became aware of Defendant’s breach of the Product’s warranties.
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`109. Plaintiff provided or will provide notice to Defendant, its agents, representatives,
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`retailers, and their employees.
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`Case 1:22-cv-06215-JPO Document 1 Filed 07/21/22 Page 14 of 16
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`110. Plaintiff hereby provides notice to Defendant that it breached the express and implied
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`warranties associated with the Product.
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`111. Defendant received notice and should have been aware of these issues due to
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`complaints by third-parties, including regulators, competitors, and consumers, to its main offices,
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`and by consumers through online forums.
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`112. The Product did not conform to its affirmations of fact and promises due to
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`Defendant’s actions.
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`113. The Product was not merchantable because it was not fit to pass in the trade as
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`advertised, not fit for the ordinary purpose for which it was intended and did not conform to the
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`promises or affirmations of fact made on the packaging, container, or label, because it was
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`marketed as if it contained a non-de minimis amount of honey, that honey was the primary,
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`exclusive, or significant sweetening ingredient instead of sugar, and that it contained either only
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`oats and honey or a limited number of ingredients beyond these two.
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`114. The Product was not merchantable because Defendant had reason to know the
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`particular purpose for which the Product was bought by Plaintiff, because she expected it contained
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`a non-de minimis amount of honey, that honey was the primary, exclusive, or significant
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`sweetening ingredient instead of sugar, and that it contained either only oats and honey or a limited
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`number of ingredients beyond these two, and she relied on Defendant’s skill and judgment to select
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`or furnish such a suitable product.
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`115. Plaintiff would not have purchased the Product or paid as much if the true facts had
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`been known, suffering damages.
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`Fraud
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`116. Defendant misrepresented and/or omitted the attributes and qualities of the Product,
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`14
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`Case 1:22-cv-06215-JPO Document 1 Filed 07/21/22 Page 15 of 16
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`that it contained a non-de minimis amount of honey, that honey was the primary, exclusive, or
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`significant sweetening ingredient instead of sugar, and that it contained either only oats and honey
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`or a limited number of ingredients beyond these two.
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`117. The records Defendant
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`is required
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`to maintain, and/or
`
`the
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`information
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`inconspicuously disclosed to consumers, provided it with actual and constructive knowledge of
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`the falsity and deception, through statements and omissions.
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`118. Defendant knew of the issues described here yet did not address them.
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`119. Defendant’s fraudulent intent is evinced by its knowledge that the Product was not
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`consistent with its representations.
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`Unjust Enrichment
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`120. 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. Awarding monetary damages, statutory and/or punitive damages pursuant to any statutory
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`claims and interest pursuant to the common law and other statutory claims, and restitution
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`and disgorgement;
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`3. Awarding costs and expenses, including reasonable fees for Plaintiff’s attorneys and
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`experts; and
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`15
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`Case 1:22-cv-06215-JPO Document 1 Filed 07/21/22 Page 16 of 16
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`4. Other and further relief as the Court deems just and proper.
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`Dated:
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`July 21, 2022
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`
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`Respectfully submitted,
`
`/s/Spencer Sheehan
`Sheehan & Associates, P.C.
`Spencer Sheehan
`60 Cuttermill Rd Ste 412
`Great Neck NY 11021
`Tel: (516) 268-7080
`Fax: (516) 234-7800
`spencer@spencersheehan.com
`
`16
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