Case 7:22-cv-00397 Document 1 Filed 01/15/22 Page 1 of 15
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`WHITE PLAINS
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`Peter Hoffman, individually and on behalf of
`all others similarly situated,
`
`7:22-cv-00397
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`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Kraft Heinz Foods Company,
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`
`
`Defendant
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`Jury Trial Demanded
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`Plaintiff alleges upon information and belief, except for allegations pertaining to plaintiff,
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`which are based on personal knowledge:
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`1. Kraft Heinz Foods Company (“Defendant”) manufactures, labels, markets, and sells
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`peach mango liquid concentrate beverage flavoring under its MiO brand (“Product”).
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`WHITE PLAINS
`
`Peter Hoffman, individually and on behalf of
`all others similarly situated,
`
`7:22-cv-00397
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Kraft Heinz Foods Company,
`
`
`
`Defendant
`
`Jury Trial Demanded
`
`Plaintiff alleges upon information and belief, except for allegations pertaining to plaintiff,
`
`which are based on personal knowledge:
`
`1. Kraft Heinz Foods Company (“Defendant”) manufactures, labels, markets, and sells
`
`peach mango liquid concentrate beverage flavoring under its MiO brand (“Product”).
`
`
`
`
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`Case 7:22-cv-00397 Document 1 Filed 01/15/22 Page 2 of 15
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`2. Defendant represents that the mango peach taste comes from natural ingredients,
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`through the statement, “Natural Flavor With Other Natural Flavor,” on colors reflective of peaches
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`and mangos.
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`
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`3.
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`The promise of only natural flavoring appeals to the more than seven out of ten
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`consumers who avoid artificial flavors, as these synthetic ingredients are believed to be associated
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`with detrimental health and environmental effects.
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`4. According to Forbes, 88% of consumers consider foods without artificial flavors to
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`be more natural and/or healthy than foods with artificial flavors, and they would pay more for such
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`foods.
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`5.
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`Federal and identical state regulations require foods to disclose the source of its
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`flavor. 21 C.F.R. § 101.22.
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`6. Natural flavor comes from natural sources, such as “a spice, fruit or fruit juice,
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`vegetable or vegetable juice…or similar plant material.” 21 C.F.R § 101.22(a)(3).
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`7. Artificial flavor is any substance not obtained from natural sources whose function
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`is to provide flavor. 21 C.F.R § 101.22(a)(1).
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`8. Where a food’s characterizing, or main, flavors, are from artificial flavors, the front
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`label is required to prominently state, “Artificially Flavored.” 21 C.F.R. § 101.22(i)(2).
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`Case 7:22-cv-00397 Document 1 Filed 01/15/22 Page 3 of 15
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`9.
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`By identifying the Product as getting its flavor from “Natural Flavor With Other
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`Natural Flavor,” and omitting any reference to artificial flavor, on the front and ingredient list,
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`consumers expect only natural flavors.
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`INGREDIENTS: WATER, MALIC ACID, CITRIC ACID,
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`CONTAINS LESS THAN 2% OF NATURAL FLAVOR,
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`SUCRALOSE AND ACESULFAME POTASSIUM
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`(SWEETENERS),
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`POTASSIUM CITRATE, GUM
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`ARABIC, SUCROSE ACETATE
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`ISOBUTYRATE,
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`YELLOW 5, YELLOW 6, RED 40, POTASSIUM
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`SORBATE (PRESERVATIVE).
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`10. While the ingredients show the Product contains “Natural Flavor,” it also contains
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`“Malic Acid” as the second most predominant ingredient, ahead of “Natural Flavor.”
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`11. Malic Acid (molecular formula C4H6O5) is the common name for 1-hydroxy-1, 2-
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`ethanedicarboxylic acid.
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`12. Malic Acid has two isomers, or different arrangements of atoms in the molecule, L-
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`Malic Acid, and D-Malic Acid. 21 C.F.R. § 184.1069.
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`13. L-Malic Acid occurs naturally in various fruits and provides tartness.
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`14. D-Malic Acid does not occur naturally.
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`15. DL-malic acid is the racemic mix of D isomer and L isomer.
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`16. DL-malic acid is a synthetic chemical manufactured from petroleum.
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`17. Defendant adds dl-malic acid to the Product to create and reinforce the tart, sweet,
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`Case 7:22-cv-00397 Document 1 Filed 01/15/22 Page 4 of 15
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`and fruity taste that consumers associate with peaches and mangos.
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`18. Since there are natural and artificial types of malic acid, Defendant is required to tell
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`consumers if it used the artificial version of malic acid, instead of only using the generic name.
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`19. Laboratory analysis concluded the Product contains dl-malic acid.
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`20. The Product could have used natural, L-Malic Acid, or (more) natural peach and
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`natural mango flavor.
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`21. However, Defendant used artificial dl-malic Acid because it was lower-priced and/or
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`more accurately resembled natural peach and natural mango flavor.
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`22. DL-malic Acid is not a natural flavor and is used to provide flavoring to the Product.
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`23. DL-malic Acid enhances and simulates the Product’s peach and mango taste.
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`24. Consumers are misled by expecting the taste comes exclusively from natural flavors.
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`25. Consumers are unable to learn the malic acid listed in the ingredients is the artificial
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`version without a chemistry kit.
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`26. Defendant failed to include the legally-required “Artificially flavored” or “Artificial
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`flavor” disclosure on all of the Products' labels.
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`27. First, because the Product contains added flavoring ingredients that simulate and
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`reinforce the characterizing peach and mango flavor, the front label is required to disclose this.
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`28. The Product contains and makes other representations which are misleading.
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`29. Reasonable consumers must and do rely on a company to honestly identify and
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`describe the components, attributes, and features of a product, relative to itself and other
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`comparable products or alternatives.
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`30. The value of the Product that Plaintiff purchased was materially less than its value
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`as represented by Defendant.
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`Case 7:22-cv-00397 Document 1 Filed 01/15/22 Page 5 of 15
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`31. 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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`32. Had Plaintiff and proposed class members known the truth, they would not have
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`bought the Product or would have paid less for it.
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`33. The Product is sold for a price premium compared to other similar products, for no
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`less than $3.99 per 1.62 OZ or 24 servings, excluding tax or any sales, a higher price than it would
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`otherwise be sold for, absent the misleading representations and omissions.
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`Jurisdiction and Venue
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`34.
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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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`35. The aggregate amount in controversy exceeds $5 million, including any statutory
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`damages, exclusive of interest and costs.
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`36. Plaintiff Peter Hoffman is a citizen of New York.
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`37. Defendant Kraft Heinz Foods Company, is a Pennsylvania limited liability company
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`with a principal place of business in Pittsburgh, Allegheny County, Pennsylvania and upon
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`information and belief, at least one member of defendant is not a citizen of the same state as the
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`plaintiff.
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`38. Defendant transacts business within this District through sale of the Product to
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`residents of this District, by third-parties such as grocery stores, big box stores, drug stores,
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`convenience stores, and online.
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`39. Venue is in this District because Plaintiff resides in this District and the actions
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`giving rise to the claims occurred within this District.
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`40. Venue is in White Plains in this District because a substantial part of the events or
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`Case 7:22-cv-00397 Document 1 Filed 01/15/22 Page 6 of 15
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`omissions giving rise to these claims occurred in Westchester County, i.e., Plaintiff’s purchase and
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`use of the Product and his awareness and/or experiences of and with the issues described here.
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`41. Plaintiff Peter Hoffman is a citizen of New Rochelle, Westchester County, New
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`Parties
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`York.
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`42. Defendant Kraft Heinz Foods Company is a Pennsylvania limited liability company
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`with a principal place of business in Pittsburgh, Pennsylvania, Allegheny County.
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`43. Defendant’s predecessor, the Kraft Corporation, was started in 1903 through the sale
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`of cheese door-to-door in Chicago.
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`44. Within twenty years, Kraft had become the largest cheese manufacturer in the world.
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`45. Over the next century, Kraft would become one of the largest food and beverage
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`companies in the world, and own some of the most iconic brands, like Oscar Mayer and Jell-O.
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`46. Kraft was one of the first companies to directly advertise to consumers, not only
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`through color print ads but on tv and radio.
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`47. Kraft sponsored tv and radio shows, which created goodwill and trust in consumers.
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`48. Kraft is one of America’s most trusted brands, and according to some commentators,
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`may be more trusted than the government.
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`49. MiO was designed as a modern and convenient alternative to beverage powders,
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`which would add flavor to water.
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`50. Defendant developed and heavily marketed MiO to capitalize on the tens of billions
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`of dollars spent annually on water by consumers.
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`51. Defendant knew that consumers like Plaintiff were avoiding sugary beverages and
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`artificial flavoring ingredients and consuming more water.
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`Case 7:22-cv-00397 Document 1 Filed 01/15/22 Page 7 of 15
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`52. MiO, which means “mine,” in Italian, is marketed to consumers who value
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`individuality and customization, factors promoted by the internet, i.e., social media and music
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`playlists.
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`53. The Product is available to consumers in this District from third-party grocery stores,
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`warehouse club stores, drug stores, convenience stores, big box stores, and online
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`54. 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 stores including ShopRite, 13 City Pl, White Plains,
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`NY 10601 between October 2021 and November 2021, among other times.
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`55. Plaintiff believed the Product contained only natural flavoring ingredients and did
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`not contain artificial flavoring ingredients.
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`56. Plaintiff bought the Product because he expected it contained only natural flavoring
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`ingredients and did not contain artificial flavoring ingredients because that is what the
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`representations said and implied.
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`57. Plaintiff relied on the words, layout, packaging, and/or images on the Product, on the
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`labeling, statements, and/or claims made by Defendant 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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`58. Plaintiff is one of the many Americans who avoid artificial flavor ingredients,
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`believing they are unhealthy and potentially harmful, and prefers natural ingredients.
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`59. Plaintiff did not expect that a product would promise only natural flavoring yet
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`contain more artificial flavoring than natural flavoring.
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`60. Plaintiff trusted the MiO brand because it is the leader in liquid water flavoring.
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`61. Plaintiff was disappointed because he believed the Product contained only natural
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`flavoring ingredients and did not contain artificial flavoring ingredients.
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`Case 7:22-cv-00397 Document 1 Filed 01/15/22 Page 8 of 15
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`62. Plaintiff bought the Product at or exceeding the above-referenced price.
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`63. Plaintiff would not have purchased the Product if he knew the representations and
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`omissions were false and misleading or would have paid less for it.
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`64. Plaintiff chose between Defendant’s Product and products represented similarly, but
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`which did not misrepresent their attributes, features, and/or components.
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`65. The Product was worth less than what Plaintiff paid and he would not have paid as
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`much absent Defendant's false and misleading statements and omissions.
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`66. Plaintiff intends to, seeks to, and will purchase the Product again when he can do so
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`with the assurance the Product's representations are consistent with its abilities, attributes, and/or
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`composition.
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`67. Plaintiff is unable to rely on the labeling and representations not only of this Product,
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`but for other similar flavored drink concentrates, because he is unsure whether those
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`representations are truthful.
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`Class Allegations
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`68. Plaintiff seeks certification under Fed. R. Civ. P. 23(b)(2) and (b)(3) of an:
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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 a
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`Consumer Fraud Multi-State Class: All persons in
`the States of Virginia and Oklahoma, who purchased
`the Product during the statutes of limitations for each
`cause of action alleged.
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`69. Common questions of law or fact predominate and include whether defendant’s
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`representations were and are misleading and if plaintiff and class members are entitled to damages.
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`70. Plaintiff's claims and basis for relief are typical to other members because all were
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`subjected to the same unfair and deceptive representations and actions.
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`Case 7:22-cv-00397 Document 1 Filed 01/15/22 Page 9 of 15
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`71. Plaintiff is adequate representative because his interests do not conflict with other
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`members.
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`72. 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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`73.
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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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`74. 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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`75. Plaintiff seeks class-wide injunctive relief because the practices continue.
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`New York General Business Law (“GBL”) §§ 349 & 350
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`(Consumer Protection Statute)
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`76. Plaintiff incorporates by reference all preceding paragraphs.
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`77. Plaintiff and class members desired to purchase a product that contained only natural
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`flavoring ingredients and did not contain artificial flavoring ingredients.
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`78. Defendant’s false and deceptive representations and omissions are material in that
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`they are likely to influence consumer purchasing decisions.
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`79. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`80. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`81. Defendant misrepresented the Product through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`82. Plaintiff relied on the representations that the Product contained only natural
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`Case 7:22-cv-00397 Document 1 Filed 01/15/22 Page 10 of 15
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`flavoring ingredients and did not contain artificial flavoring ingredients.
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`83.
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` Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Violation of State Consumer Fraud Acts
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`(On Behalf of the Consumer Fraud Multi-State Class)
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`84. The Consumer Fraud Acts of the States in the Consumer Fraud Multi-State Class are
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`similar to the above-referenced consumer protection statute and prohibit the use of unfair or
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`deceptive business practices in the conduct of trade or commerce.
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`85. Defendant intended that each of members of the Consumer Fraud Multi-State Class
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`would rely upon its deceptive conduct, and a reasonable person would in fact be misled by this
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`deceptive conduct.
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`86. As a result of Defendant’s use or employment of artifice, unfair or deceptive acts or
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`business practices, each of the other members of the Consumer Fraud Multi-State Class, have
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`sustained damages in an amount to be proven at trial.
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`87.
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`In addition, Defendant’s conduct showed motive, and the reckless disregard of the
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`truth such that an award of punitive damages is appropriate.
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`Breach of Contract
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`88. Plaintiff entered into a contract with Defendant for purchase of the Product
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`89. The terms of the contract provided that the Product contained only natural flavoring
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`ingredients and did not contain artificial flavoring ingredients.
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`90. Defendant breached the contract because the Product did not meet the terms Plaintiff
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`agreed to.
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`91. Plaintiff was damaged by the breach, and those damages include the purchase price.
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`Case 7:22-cv-00397 Document 1 Filed 01/15/22 Page 11 of 15
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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.
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`92. The Product was manufactured, identified, and sold by Defendant and expressly and
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`impliedly warranted to Plaintiff and class members that it contained only natural flavoring
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`ingredients and did not contain artificial flavoring ingredients.
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`93. 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, and targeted digital advertising.
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`94. Defendant knew the product attributes that potential customers like Plaintiff were
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`seeking and developed its marketing and labeling to directly meet those needs and desires.
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`95. 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 the Product contained only
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`natural flavoring ingredients and did not contain artificial flavoring ingredients.
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`96. Defendant’s representations affirmed and promised that the Product contained only
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`natural flavoring ingredients and did not contain artificial flavoring ingredients.
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`97. Defendant described the Product as one which contained only natural flavoring
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`ingredients and did not contain artificial flavoring ingredients, which became part of the basis of
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`the bargain that the Product would conform to its affirmations and promises.
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`98. 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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`99. 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 high quality products.
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`100. Plaintiff provided or will provide notice to Defendant, its agents, representatives,
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`retailers, and their employees.
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`Case 7:22-cv-00397 Document 1 Filed 01/15/22 Page 12 of 15
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`101. Plaintiff hereby provides notice to Defendant that it has breached the express and
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`implied warranties associated with the Product.
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`102. 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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`103. 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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`104. 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.
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`105. 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 he expected it contained
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`only natural flavoring ingredients and did not contain artificial flavoring ingredients, and he relied
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`on Defendant’s skill and judgment to select or furnish such a suitable product.
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`106. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Negligent Misrepresentation
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`107. Defendant had a duty to truthfully represent the Product, which it breached.
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`108. This duty was non-delegable, and based on Defendant’s position, holding itself out
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`as having special knowledge and experience in this area, a trusted company known for its high
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`quality products.
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`109. Defendant’s representations regarding the Product went beyond the specific
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`representations on the packaging, as they incorporated their extra-labeling promises and
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`Case 7:22-cv-00397 Document 1 Filed 01/15/22 Page 13 of 15
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`commitments to quality, transparency and putting its customers first.
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`110. These promises were outside of the standard representations that other companies
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`may make in a standard arms-length, retail context.
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`111. The representations took advantage of consumers’ cognitive shortcuts made at the
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`point-of-sale and their trust in Defendant.
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`112. Plaintiff and class members reasonably and justifiably relied on these negligent
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`misrepresentations and omissions, which served to induce and did induce, their purchase of the
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`Product.
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`113. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Fraud
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`114. Defendant misrepresented and/or omitted the attributes and qualities of the Product,
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`that it contained only natural flavoring ingredients and did not contain artificial flavoring
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`ingredients.
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`115. Moreover, the records Defendant is required to maintain, and/or the information
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`inconspicuously disclosed to consumers, provided it with actual and constructive knowledge of
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`the falsity of the representations.
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`116. Defendant knew of the issues described here yet did not address them.
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`117. 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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`118. 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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`Case 7:22-cv-00397 Document 1 Filed 01/15/22 Page 14 of 15
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`Jury Demand and Prayer for Relief
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`Plaintiff demands a jury trial on all issues.
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` WHEREFORE, Plaintiff prays for judgment:
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`1. Declaring this a proper class action, certifying Plaintiff as representative and the
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`undersigned as counsel for the class;
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`2. Entering preliminary and permanent injunctive relief by directing Defendant to correct the
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`challenged practices to comply with the law;
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`3. Injunctive relief to remove, correct and/or refrain from the challenged practices and
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`representations, and restitution and disgorgement for members of the class pursuant to the
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`applicable laws;
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`4. Awarding monetary damages, 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;
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`5. Awarding costs and expenses, including reasonable fees for plaintiff's attorneys and
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`experts; and
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`6. Other and further relief as the Court deems just and proper.
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`Dated: January 15, 2022
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`Respectfully submitted,
`
`Sheehan & Associates, P.C.
`/s/Spencer Sheehan
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021
`Tel: (516) 268-7080
`spencer@spencersheehan.com
`
`
`Shub Law Firm LLC
`Jonathan Shub
`Kevin Laukaitis*
`134 Kings Hwy E Fl 2
`Haddonfield NJ 08033
`
`14
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`Case 7:22-cv-00397 Document 1 Filed 01/15/22 Page 15 of 15
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`
`
`(856) 772-7200
`jshub@shublawyers.com
`klaukaitis@shublawyers.com
`*Pro
`Hac
`Vice
`Application
`Forthcoming or Submitted
`
`15
`
`
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