`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
`
`Lauren Biegel, Greg Maroney, Ryan Cosgrove,
`Clive Rhoden, Stephen Bradshaw, Angela
`Farve and Christina Henderson, individually
`and on behalf of all others similarly situated,
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`7:20-cv-03032-CS
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`Plaintiffs,
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`
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`- against -
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`Blue Diamond Growers,
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`Defendant
`
`
`
`Second Amended
`Class Action Complaint
`
`Jury Trial Demanded
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`Plaintiffs by attorneys allege upon information and belief, except for allegations pertaining
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`to Plaintiffs, which are based on personal knowledge:
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`1.
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`Blue Diamond Growers (“Defendant”) manufactures, distributes, markets, labels and
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`sells vanilla almondmilk, vanilla almondmilk coconutmilk blend, and vanilla almondmilk yogurt
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`purporting to be flavored with more than a negligible amount of extracts of vanilla beans –
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`“Vanilla” – under its Almond Breeze brand (the “Products”).
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`2. 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.”1
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`3. According to one flavor supplier, today’s consumers “want real vanilla, not imitation
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`[vanilla] flavoring.”
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`4. Vanilla (Vanilla planifolia Andrews and Vanilla tahitenis Moore) comes from an
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`orchid plant that originated in Mexico where it was first cultivated.
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`1 Chagrin Valley Soap & Salve Company, FAQs, Why Are The Prices of Vanilla Bean Products Always Increasing?
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`Case 7:20-cv-03032-CS Document 46 Filed 04/19/21 Page 2 of 23
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`5.
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`The vanilla orchid produces a fruit pod, the vanilla bean, which is the raw material
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`for vanilla flavorings.
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`6.
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`The vanilla bean is heated in the sun for weeks, soaked in alcohol and its flavor
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`constituents extracted (vanilla extract).
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`7. Vanillin (3-methoxy-4-hydroxybenzaldehyde) is the major component of natural
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`vanilla extract and is responsible for roughly one-third of vanilla’s flavor and aroma.
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`8. Vanillin is found in the form of its β-D-glucoside (glucovanillin) in green vanilla
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`beans.
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`9.
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`The curing process, including the hydrolysis of its β-D-glucoside, leads to the release
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`of vanillin from glucovanillin, at concentrations of 1-4% of dry weight of cured beans.
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`10. Vanilla’s unique flavor is due to the hundreds of odor-active compounds besides
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`vanillin, such as acids, ethers, alcohols, acetals, heterocyclics, phenolics, hydrocarbons, esters and
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`carbonyls.
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`11. Methyl cinnamate and cinnamyl alcohol provide cinnamon and creamy notes.
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`12. P-cresol contributes flavor notes described as woody and spicy.
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`13. Acetovanillone provides a sweet, honey taste.
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`14. P-hydroxybenzoic acid and vanillic acid are significant phenolic compounds which
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`contribute to vanilla’s aroma.
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`15. 4-methoxybenzaldehyde (p-anisaldehyde) and 4-methoxybenzyl alcohol (p-anisyl
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`alcohol) provide creamy and floral flavor notes.
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`16. The isolation of vanillin from vanilla in the late 19th century resulted in foods
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`purporting to contain vanilla, which either contained no vanilla or a trace or de minimis amount,
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`boosted by low cost, synthetic vanillin.
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`2
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`Case 7:20-cv-03032-CS Document 46 Filed 04/19/21 Page 3 of 23
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`17. Natural flavors are the extractives or essences from a fruit or vegetable, made through
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`natural processes, such as distillation, roasting, heating, enzymolysis or fermentation. See 21
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`C.F.R. § 101.22(a)(3).
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`18. Artificial flavors are made from synthetic sources or through non-natural processes,
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`such as chemical reactions, high heat and high pressure. See 21 C.F.R. § 101.22(a)(1).
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`19. At least seven out of ten consumers avoid artificial flavors because they have been
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`linked to detrimental health effects, contain synthetic ingredients and are highly processed.
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`20. All demographics of consumers, from Generation Z to Baby Boomers – say they
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`would pay more for foods with no artificial flavors because they are perceived as more natural.
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`21. Federal regulations, which have been adopted by every state, require companies to
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`truthfully disclose the source of a product’s flavor. 21 C.F.R. § 101.22.
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`22. For example, foods labeled vanilla and strawberry yogurt will get their flavor from
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`vanilla and strawberry ingredients.
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`23. Where those same yogurts are represented as “Artificially Flavored,” consumers will
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`not expect real vanilla or real strawberries. See 21 C.F.R. § 101.22(i)(2) (requiring a food with
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`artificial flavor that simulates the characterizing flavor be labeled as “Artificially Flavored”).
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`24. Consumers are accustomed to such truthful labeling, present across all food and
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`beverages.
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`25. For example, the milk protein drinks below are represented as “vanilla,” but they
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`disclose they are “Artificially Flavored,” so consumers will know their vanilla taste is not from
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`real vanilla.
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`3
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`Case 7:20-cv-03032-CS Document 46 Filed 04/19/21 Page 4 of 23
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`26. When consumers see other “vanilla” products, like U-bet Vanilla Syrup, Vanilla
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`Wafers or Vanilla Almond Bark, they are told that the taste is not from real, but artificial vanilla,
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`because their labels state, “Artificially Flavored.”
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`4
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`27. For coffee and pie filling, consumers will not be misled to expect real vanilla because
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`the labels clearly state, “Artificially Flavored.”
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`5
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`28. However, defendant markets its Products as being flavored with, and by vanilla, from
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`extracts of vanilla beans, and its front labels fail to tell consumers they are actually artificially
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`flavored.
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`Vanilla Almondmilk
`(32 and 64 OZ)
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`6
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`Case 7:20-cv-03032-CS Document 46 Filed 04/19/21 Page 7 of 23
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`Vanilla Almondmilk Coconutmilk Blend
`(Unsweetened) (32 and 64 OZ)
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`Vanilla Almondmilk Yogurt
`(5.3 and 24 OZ)
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`29. Defendant knows that the Products’ most appealing features to consumers is that they
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`are milk alternatives flavored with vanilla.
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`7
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`Case 7:20-cv-03032-CS Document 46 Filed 04/19/21 Page 8 of 23
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`30. Vanilla is the main flavor used for milk alternative products, since their flavor is
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`often described as “chalky.”
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`31. While consumers know the Products are dairy alternatives, they will have no reason
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`to expect they are not labeled consistently with all other foods and beverages they see every day.
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`32. Since the Products omit any reference to being “Artificially Flavored,” they will
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`reasonably expect a non-de minimis amount of vanilla ingredients.
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`33. A non-de minimis amount of vanilla ingredients is an amount sufficient such that the
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`Product’s vanilla taste does not need to be boosted by synthetic vanillin.
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`I.
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`Contrary to Representations, the Products Contain a de minimis amount of Vanilla, if Any
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`34. The conclusion that the Products contain a de minimis amount of vanilla is evident
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`from a careful reading of the ingredient lists.
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`Vanilla Almondmilk
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`
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`(FILTERED WATER,
`INGREDIENTS: ALMONDMILK
`ALMONDS), CANE SUGAR, CALCIUM CARBONATE,
`NATURAL FLAVORS, SEA SALT, POTASSIUM CITRATE,
`SUNFLOWER LECITHIN, GELLAN GUM, VITAMIN A
`PALMITATE, VITAMIN D2, D-ALPHA-TOCOPHEROL
`(NATURAL VITAMIN E).
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`8
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`Case 7:20-cv-03032-CS Document 46 Filed 04/19/21 Page 9 of 23
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`Vanilla Almondmilk Coconutmilk Blend
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`
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`(FILTERED WATER,
`ALMONDMILK
`INGREDIENTS:
`ALMONDS), COCONUTMILK (FILTERED WATER, COCONUT
`CREAM), CALCIUM CARBONATE, NATURAL FLAVORS,
`POTASSIUM CITRATE, SEA SALT, SUNFLOWER LECITHIN,
`GELLAN GUM, VITAMIN A PALMITATE, VITAMIN D2, D-
`ALPHA-TOCOPHEROL (NATURAL VITAMIN E).
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`Vanilla Almondmilk Yogurt
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`
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`(FILTERED WATER,
`INGREDIENTS: ALMONDMILK
`ALMONDS), SUGAR, TAPIOCA STARCH, PECTIN, NATURAL
`FLAVORS, VANILLA EXTRACT, AGAR, CALCIUM
`PHOSPHATE, SALT, LOCUST BEAN GUM, SODIUM
`CITRATE, CALCIUM LACTATE AND CULTURES.
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`35. According to Professor Scott Rankin, a food labeling expert and professor at the
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`University of Wisconsin-Madison, “the different wordings on the labels amount to an industry
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`shorthand for specific kinds of natural or artificial flavorings.”
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`36. For instance, “Natural flavor…(with no mention of vanilla at all) indicates just a
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`trace of natural vanilla (there’s no required level) and other flavorings such as nutmeg that merely
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`trigger an association” with vanilla.
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`37. While the Almondmilk Yogurt lists “Vanilla Extract,” this amount is de minimis.
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`9
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`38. This is concluded in part because vanilla extract is at least 35 percent alcohol by
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`weight.
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`39. The “Natural Flavors” is a highly concentrated ingredient, without alcohol, yet it is
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`listed before “Vanilla Extract,” which means there is more of it in the Vanilla Almondmilk Yogurt
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`than extracts from vanilla beans.
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`40. The “Natural Flavors” listed in the ingredients of the Almondmilk and Almondmilk
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`Coconutmilk Blend may contain a trace or de minimis amount of vanilla but is mainly comprised
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`of synthetic vanillin, incorrectly identified as part of “Natural Flavors.”
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`41. The ingredient lists of the Products are misleading because they are required to state
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`“Vanillin” and/or “Artificial Flavor,” in addition to “Natural Flavors” and/or “Vanilla Extract”
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`(yogurt), and consumers cannot learn of these facts at the point of sale without advanced laboratory
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`equipment.
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`42. Second, analytical testing of the Products from 2019-2021 confirmed de minimis
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`amounts of extracts from vanilla beans in the Products.
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`43. While the laboratory results revealed vanillin, this was unaccompanied by expected
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`amounts of other aromatic compounds from the vanilla plant – methyl cinnamate, cinnamyl
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`alcohol, p-cresol, acetovanillone, p-hydroxybenzoic acid, vanillic acid, 4-methoxybenzaldehyde
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`(p-anisaldehyde) and/or 4-methoxybenzyl alcohol (p-anisyl alcohol).
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`44. Third, the amount of vanillin detected was significantly greater than it would be if it
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`were only present as part of real vanilla, which means the flavoring source is synthetic vanillin –
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`not from vanilla beans.
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`45. Fourth, the source of the Product’s synthetic vanillin is guaiacol, based on its
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`detection at abnormally high levels.
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`10
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`46. Guaiacol is a petrochemical precursor, obtained from synthetic benzene and
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`propylene, whose industrial source is petroleum.
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`47. Guaiacol is the main source of synthetic vanillin.
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`48. Converting guaiacol to vanillin requires chemical reactions, such as condensation
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`with glyoxylic acid, decarboxylation and aromatic substitution.
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`49. Vanillin from guaiacol is an artificial flavor because it is from an artificial source
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`and made through artificial processes.
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`50. Although the ingredients used to provide the Products’ vanilla taste is (1) not from
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`vanilla beans, (2) from an artificial petrochemical source and (3) made through artificial processes,
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`Defendant pretends otherwise, conflating the natural and artificial flavoring and deceiving
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`consumers.
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`51. The use of the term “Natural Flavors” on the ingredient lists is deceptive because
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`consumers will wrongly assume that the Products contain only natural vanilla flavor, and certainly
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`not conclude they contain artificial flavorings.
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`52. Additionally, the Products lack an authentic vanilla taste because of the absence of
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`the critical odor-active compounds in vanilla.
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`53. Defendant adds artificial vanillin to the Products to give it a “sweet, creamy” taste,
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`even though vanillin is known to have a “chemical-like” taste because it lacks the other flavor
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`compounds in vanilla.
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`54. Because the Products contain artificial flavor that “simulates, resembles or reinforces
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`the characterizing flavor,” the front labels are required to, but do not, state, “Artificially Flavored.”
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`21 C.F.R. § 101.22(i)(2).
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`11
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`Case 7:20-cv-03032-CS Document 46 Filed 04/19/21 Page 12 of 23
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`55. Defendant knows consumers will pay more for the Products because the front labels
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`only state “Vanilla” and or “Natural Flavors” instead of “Artificially Flavored” or “Added
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`Artificial Flavor.”
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`VI.
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`Conclusion
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`56. Defendant misrepresented the Products through affirmative statements, half-truths,
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`and omissions.
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`57. Defendant’s omissions and failures to disclose these facts is deceptive and
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`misleading to consumers who want a vanilla flavored product that contains flavoring with more
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`than a negligible amount of extracts from vanilla beans, does not contain artificial flavoring such
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`as synthetic vanillin and tastes like vanilla.
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`58. Defendant’s branding and packaging of the Products are designed to – and do –
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`deceive, mislead, and defraud Plaintiffs and consumers.
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`59. Defendant sold more of the Products 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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`60. The value of the Products that Plaintiffs purchased and consumed were materially
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`less than their value as represented by Defendant.
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`61. Had Plaintiffs and class members known the truth, they would not have bought the
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`Products or would have paid less for them.
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`62. Due to the false and misleading labeling, the Products are sold at premium prices.
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`63. For example, the cost of the 32-ounce of Almond Breeze Vanilla Almond Milk is
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`$2.19 (or 6.8 cents per ounce) at Target.
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`64. The cost of the 32-ounce Good & Gather Vanilla Almond Milk is $1.79 (or 5.5 cents
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`per ounce) at Target.
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`12
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`65. This amounts to a premium of 1.3 cents per ounce, which equates to 42 cents for the
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`32-ounce example above:
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`13
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`Case 7:20-cv-03032-CS Document 46 Filed 04/19/21 Page 14 of 23
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`66. The prices are higher than similar products represented in a non-misleading way, and
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`more than they would be sold for if they were labeled in a truthful and non-misleading way.
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`Jurisdiction and Venue
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`67.
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`Jurisdiction is proper pursuant to Class Action Fairness Act of 2005 (“CAFA”). 28
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`U.S.C. § 1332(d)(2)
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`68. Plaintiff Lauren Biegel is a citizen of New York.
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`69. Plaintiff Greg Maroney is a citizen of New York.
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`70. Plaintiff Ryan Cosgrove is a citizen of New York.
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`71. Plaintiff Clive Rhoden is a citizen of New York.
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`72. Plaintiff Stephen Bradshaw is a citizen of New York.2
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`73. Defendant Blue Diamond Growers is a California cooperative corporation with a
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`principal place of business in Sacramento, Sacramento County, California and is a citizen of
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`California.
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`74. “Minimal diversity” exists because at least one plaintiff and defendant are citizens
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`of different states.
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`75. Sales of the Products exceed $5 million per year, exclusive of interest and costs, and
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`the aggregate amount in controversy exceeds $5 million per year.
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`76. Venue is proper because Plaintiff Biegel resides in this district and a substantial part
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`of the events or omissions giving rise to the claims occurred here.
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`77. Venue is further supported because many class members reside in this District.
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`2 Plaintiffs Farve and Henderson are citizen of California which is not relevant for purposes of diversity.
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`14
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`Case 7:20-cv-03032-CS Document 46 Filed 04/19/21 Page 15 of 23
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`78. Plaintiff Lauren Biegel is a resident of Campbell Hall, Orange County and a citizen
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`Parties
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`of New York.
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`79. Plaintiff Greg Maroney is a resident of Wurtsboro, Sullivan County and a citizen of
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`New York.
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`80. Plaintiff Ryan Cosgrove is a resident of Bronx, Bronx County and a citizen of New
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`York.
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`81. Plaintiff Clive Rhoden is a resident of Mount Vernon, Westchester County and a
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`citizen of New York.
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`82. Plaintiff Stephen Bradshaw is a citizen of Staten Island, Richmond County, and a
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`citizen of New York.
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`83. Plaintiff Angela Farve is a resident of San Francisco, San Francisco County, and a
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`citizen of California.
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`84. Plaintiff Christina Henderson is a resident of Hayward, Alameda County, and a
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`citizen of California.
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`85. Defendant Blue Diamond Growers is a California cooperative corporation with a
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`principal place of business in Sacramento, California, Sacramento County.
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`86. Plaintiff Lauren Biegel purchased the Vanilla Almondmilk Yogurt multiple times,
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`including but not limited to on or around June 17, 2019, September 6, 2019, September 30, 2019
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`and January 24, 2020, at stores including Walmart, 470 NY-211 E, Middletown, NY 10940.
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`87. Plaintiff Greg Maroney purchased the Vanilla Almondmilk Yogurt on more than one
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`occasion between March 2019 and March 2020, at stores including Hannaford Supermarket, 30
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`Tower Dr, Middletown, NY 10941.
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`88. Plaintiff Ryan Cosgrove purchased the Vanilla Almondmilk at Stop & Shop
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`15
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`Case 7:20-cv-03032-CS Document 46 Filed 04/19/21 Page 16 of 23
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`Supermarket, 5716 Broadway, Bronx, New York 10463, on multiple occasions in the summer of
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`2019.
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`89. Plaintiff Clive Rhoden purchased the Vanilla Almondmilk at locations including
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`Stop & Shop Supermarket, 240 E Sandford Blvd, Mt Vernon, NY 10550 and Foodtown of Mount
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`Vernon 31 E Prospect Ave, Mt Vernon, NY 10550, in September 2019.
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`90. Plaintiff Stephen Bradshaw purchased the Vanilla Almondmilk Coconutmilk Blend
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`on numerous occasions during 2019, including several times during the spring and summer of
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`2019, at stores including ShopRite, 985 Richmond Ave, Staten Island, NY 10314.3
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`91. Plaintiff Angela Farve purchased the Vanilla Almondmilk at locations including
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`Safeway, 699 Lewelling Blvd, San Leandro, CA 94579 in March 2019 and during 2019 and 2020.
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`92. Plaintiff Christina Henderson purchased the Vanilla Almondmilk on numerous
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`occasions, at locations including Walmart, 15555 Hesperian Blvd, San Leandro, CA 94579, on or
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`around March 18, 2020.
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`93. Plaintiffs bought the Products at or exceeding the above-referenced prices because
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`they relied upon the front label representations regarding the vanilla flavoring, and expected a non-
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`negligible amount of extracts from vanilla beans, because they expected that if the Products
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`contained synthetic flavor ingredients, the Products would truthfully disclose this on the front label
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`with statements they were “Artificially Flavored.”
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`94. Plaintiffs Biegel and Maroney did not just rely on the word “Vanilla” but relied on
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`the pictures of the vanilla beans and vanilla flowers.
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`95. These images conveyed to Plaintiffs Biegel and Maroney that the Vanilla
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`Almondmilk Yogurt would contain a non-negligible amount of extracts from vanilla beans.
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`3 Plaintiffs Biegel, Maroney, Bradshaw, Cosgrove and Rhoden are referred to as the “New York Plaintiffs.” Plaintiffs
`Farve and Henderson are referred to as the “California Plaintiffs.”
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`16
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`Case 7:20-cv-03032-CS Document 46 Filed 04/19/21 Page 17 of 23
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`96. The ingredient list for the Vanilla Almondmilk Yogurt even promised “Vanilla
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`Extract,” but the amount of this ingredient was de minimis.
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`97. The vanilla taste in the Vanilla Almondmilk Yogurt was mainly provided by
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`synthetic vanillin.
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`98. Plaintiffs were deceived by and relied upon the Products’ deceptive labeling.
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`99. Plaintiffs would not have purchased the Products in the absence of Defendant’s
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`misrepresentations and omissions.
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`100. The Products were worth less than what Plaintiffs paid for them and they would not
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`have paid as much absent Defendant's false and misleading statements and omissions.
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`101. Competitor vanilla almondmilk-based products cost substantially less than
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`defendant’s similar products.
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`Class Allegations
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`102. The class consists of a nationwide class of all consumers in the United States,
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`including states and territories, who purchased (1) Vanilla Almondmilk; (2) Vanilla Almondmilk
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`Coconutmilk Blend and (3) Vanilla Almondmilk Yogurt under the Almond Breeze brand from
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`April 15, 2015 to the present. (“Nationwide Class”).
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`103. Common questions of law or fact predominate and include whether Defendant’s
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`representations were and are misleading and if Plaintiffs and class members are entitled to
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`damages.
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`104. Plaintiffs' claims and basis for relief are typical to other members because all were
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`subjected to the same unfair and deceptive representations and actions.
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`105. Plaintiffs are adequate representative because their interests do not conflict with
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`other members.
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`17
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`Case 7:20-cv-03032-CS Document 46 Filed 04/19/21 Page 18 of 23
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`106. 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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`107. 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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`108. Plaintiffs' counsel is competent and experienced in complex class action litigation
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`and intends to protect class members’ interests adequately and fairly.
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`109. Plaintiffs seek class-wide injunctive relief because the practices continue.
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`COUNT I
`Violation Of California’s Unfair Competition Law,
`California Business & Professions Code §§ 17200, et seq.
`(On Behalf of the Nationwide Class)
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`110. Plaintiffs incorporate by reference all preceding paragraphs.
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`111. Defendant’s practices were unlawful and fraudulent under the UCL because they
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`violated, inter alia, 21 U.S.C. 343(a), 21 U.S.C. 343(g), of the FDCA, California Health & Safety
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`Code § 110670, the CLRA, the FAL and other applicable law.
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`112. Defendant’s business practices were unfair because they are substantially injurious
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`to consumers, offends public policy, and is detrimental to the public.
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`113. Defendant’s advertising is of no benefit to consumers, and is inconsistent with FDA
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`recommendations, regulations and advisories with respect to the challenged statements and
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`designations.
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`114. Plaintiffs and Class believed the statements with respect to the ingredients on the
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`front labels were accurate and lawful when this was not true and was misleading.
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`115. Plaintiffs and the Class lost money or property because they would not have
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`purchased the Products without Defendant’s representations and paid more for the Products.
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`18
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`Case 7:20-cv-03032-CS Document 46 Filed 04/19/21 Page 19 of 23
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`COUNT II
`Violation Of California’s False Advertising Law,
`California Business & Professions Code §§ 17500, et seq.
`(On Behalf of the Nationwide Class)
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`116. Plaintiffs incorporate by reference the allegations contained in all preceding
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`paragraphs.
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`117. California’s False Advertising Law, Cal. Bus. & Prof. Code §§ 17500, et seq., makes
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`it unlawful to disseminate statements which are untrue and/or misleading and which a party could
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`determine to be same, through the exercise of reasonable care.
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`118. Defendant engaged in a scheme of offering misbranded units of the Products for sale
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`to Plaintiffs and the Class members by way of product packaging, labeling, and other promotional
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`materials.
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`119. These materials misrepresented and/or omitted the true content and nature of the
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`misbranded Products.
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`120. Defendant’s advertisements and inducements were made in and originated from
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`California and are advertising as contained in Bus. & Prof. Code § 17500, et seq. because the
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`packaging, labeling, and promotional statements were intended as inducements for purchase.
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`121. The Products, and the statements appearing on them, were disseminated by
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`Defendant to Plaintiffs and Class members. Defendant knew that these statements were
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`unauthorized, inaccurate, and misleading.
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`122. Defendant violated § 17500, et seq. by misleading Plaintiffs and the Class to believe
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`that the ingredient designations were truthful and consistent with the legal requirements for such
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`representations.
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`123. Defendant knew or should have known, through reasonable care that the Products
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`were and continues to be misbranded, and that their representations about the ingredients were
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`Case 7:20-cv-03032-CS Document 46 Filed 04/19/21 Page 20 of 23
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`inconsistent with law, inaccurate, and misleading.
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`124. Plaintiffs and the Class lost money or property because they would not have
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`purchased the Products without Defendant’s representations and paid more for the Products than
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`they otherwise would have.
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`COUNT III
`Violation Of California’s Consumers Legal Remedies Act,
`California Civil Code §§ 1750, et seq.
`(On Behalf of the Nationwide Class)
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`125. Plaintiffs incorporate the allegations contained in all preceding paragraphs.
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`126. Plaintiffs and Class members are consumers who purchased the Products for
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`personal, family or household purposes. Cal. Civ. Code § 1761(d).
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`127. Defendant’s actions, representations, and conduct have violated, and continue to
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`violate the CLRA, because they extend to transactions that intended to result, or which have
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`resulted in, the sale of goods to consumers.
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`128. The Products’ front labels are not qualified with respect to the ingredients and/or
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`components prominently promoted and rendered false and misleading due to the presence or
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`absence of same.
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`129. Defendant’s conduct violated and continues to violate CLRA § 1770(a)(5) of the
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`because its representations are unfair in that it misrepresents the characteristics, attributes and
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`qualities of the Products.
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`130. Defendant’s conduct is prohibited by Cal. Civ. Code §§ 1770(a)(7), 1770(a)(9),
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`because it advertises the Products’ ingredients in a manner that is consistent with the truth.
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`131. On October 28, 2020, Plaintiff Angela Farve, via her counsel, sent a Consumer Legal
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`Remedies Notice via certified mail, return receipt requested, pursuant to Cal. Civ. Code § 1782, to
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`Defendant’s registered agent within the state of California and Defendant’s headquarters.
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`Case 7:20-cv-03032-CS Document 46 Filed 04/19/21 Page 21 of 23
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`132. Defendant received both CLRA Notices on November 2, 2020.
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`133. The CLRA Notices provided Defendant notice of the misconduct – including
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`undisclosed artificial flavors and a negligible amount of vanilla – and requested that Defendant
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`cure its misconduct pursuant to Cal. Civ. Code. § 1782 within 30 days.
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`134. Defendant failed to do so.
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`135. Plaintiffs and the Class lost money or property because they would not have
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`purchased the Products without Defendant’s representations, or they paid more for the Products
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`than they otherwise would have.
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`136. Plaintiffs seek damages, restitution, and injunctive relief for these violations.
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`COUNT IV
`Negligent Misrepresentation
`(On Behalf of the Nationwide Class)
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`137. Plaintiffs incorporate by reference all preceding paragraphs.
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`138. Defendant misrepresented the ingredients of the Products on the front of the labels
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`of its Product.
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`139. Defendant had a duty to disclose and/or provide non-deceptive labeling of the
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`Products and knew or should have known same were false or misleading.
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`140. 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 or
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`service type.
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`141. The representations took advantage of consumers’ (1) cognitive shortcuts made at
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`the point-of-sale and (2) trust placed in Defendant, a well-known and respected brand in this sector.
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`142. Plaintiffs and other Class members reasonably and justifiably relied on these
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`negligent misrepresentations and omissions, which served to induce and did induce, the purchase
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`of the Products.
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`Case 7:20-cv-03032-CS Document 46 Filed 04/19/21 Page 22 of 23
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`143. Plaintiffs and class members would not have purchased the Products or paid as much
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`if the true facts had been known, suffering damages.
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`COUNT V
`Unjust Enrichment
`(On Behalf of the Nationwide Class)
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`144. Plaintiffs incorporate by references all preceding paragraphs.
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`145. Defendant obtained benefits and monies because the Products were not as
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`represented and expected, to the detriment and impoverishment of plaintiff and class members,
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`who seek restitution and disgorgement of inequitably obtained profits.
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`Jury Demand and Prayer for Relief
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`Plaintiffs demand a jury trial on all issues.
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` WHEREFORE, Plaintiffs pray for judgment:
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`1. Declaring this a proper class action, certifying Plaintiffs as representatives of the national
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`class, New York Plaintiffs as representatives of the New York subclass, and the
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`undersigned attorneys as counsel for the national and New York subclass.
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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 Plaintiffs' attorneys and
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`experts; and
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`Case 7:20-cv-03032-CS Document 46 Filed 04/19/21 Page 23 of 23
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`6. Other and further relief as the Court deems just and proper.
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`Respectfully submitted,
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`Sheehan & Associates, P.C.
`/s/Spencer Sheehan
`Spencer Sheehan
`Christopher Patalano
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021-3104
`Tel: (516) 268-7080
`Fax: (516) 234-7800
`spencer@spencersheehan.com
`cpatalano@spencersheehan.com
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`Shub Law Firm LLC
`Jonathan Shub
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`Kevin Laukaitis
`134 Kings Highway E Fl 2
`Haddonfield, NJ 08033
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`Tel: (856) 772-7200
`jshub@shublawyers.com
`klaukaitis@shublawyers.com
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`Reese LLP
`Michael R. Reese
`100 W 93rd St Fl 16
`New York NY 10025-7524
`Telephone: (212) 643-0500
`Fax: (212) 253-4272
`mreese@reesellp.com
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`Dated: April 19, 2021
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