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`Case No.
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`CLASS ACTION COMPLAINT
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`JURY TRIAL DEMANDED
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`
`
`SHERRI PETTIS, individually and on behalf of
`all others similarly situated,
`
`
`Plaintiff,
`
`
`
`
`AMAZON.COM, INC., and WHOLE FOODS
`MARKET, INC.,
`
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`Defendants.
`
`v.
`
`
`
`
`
`Sherri Pettis (“Plaintiff”), on behalf of herself and all others similarly situated, by her
`undersigned attorneys, against Amazon.com and Whole Foods Market, Inc., (collectively
`“Defendants”), alleges the following based upon personal knowledge as to herself and her own
`actions, and, as to all other matters, allege, upon information and belief and investigation of
`her counsel, as follows:
`
`I.
`INTRODUCTION
`1.
`This action seeks to recover damages and injunctive relief for Defendants’
`continuing failure to disclose to consumers that certain Whole Foods herbs and spices, sold
`under its trade name of “365 By Whole Foods Market,” including Defendants’ Basil, Cumin, and
`Ground Ginger (the “Products”), contain (or risk containing) lead, arsenic, and cadmium
`(“Heavy Metals”).
`
`CLASS ACTION COMPLAINT ‐ 1
`
`TERRELL MARSHALL LAW GROUP PLLC
`936 North 34th Street, Suite 300
`Seattle, Washington 98103‐8869
`TEL. 206.816.6603 FAX 206.319.5450
`www.terrellmarshall.com
`
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`Case 2:22-cv-01115 Document 1 Filed 08/10/22 Page 2 of 24
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`2.
`A November 2021 report by Consumer Reports states that the offending herbs
`and spices, including the Products, “had high enough levels of arsenic, lead, and cadmium
`combined, on average, to pose a health concern for children when regularly consumed in
`typical servicing sizes. Most raise concern for adults, too.”
`3.
`Heavy Metals in foods pose a serious safety risk to consumers because they can
`cause cancer and serious and often irreversible damage to brain development as well as other
`serious health problems.
`4.
`As described more fully below, consumers who purchase the Products are
`injured by Defendants’ acts and omissions concerning the presence (or risk) of Heavy Metals.
`No reasonable consumer would know, or have reason to know, that the Products contain (or
`risk containing) Heavy Metals. Worse, as companies across the industry have adopted methods
`to limit heavy metals in their herbs and spices, Defendants have stood idly by with a reckless
`disregard for their consumers’ health and well‐being. As such, Plaintiff seek relief in this action
`individually and as a class action on behalf of all purchasers of the Products.
`II.
`PARTIES
`
`Plaintiff
`5.
`Plaintiff Sherri Pettis is a resident and citizen of the State of Pennsylvania,
`residing in Pittsburgh, Pennsylvania. Plaintiff Pettis began purchasing the 365 by Whole Foods
`Market Ground Ginger in or about 2018 from a Whole Foods retail location in Pittsburgh,
`Pennsylvania. Her most recent purchase was in 2021 for $3.49 from that location.
`6.
`Prior to purchasing the Product, Plaintiff Pettis saw and relied upon the
`packaging of the Product. Plaintiff Pettis believed she was purchasing quality and healthy
`spices that did not contain (or have a risk of containing) Heavy Metals. Had Defendants
`disclosed on the label that the Product contained (or risked containing) unsafe toxic Heavy
`Metals, Ms. Pettis would have been aware of that fact and would not have purchased the
`Product or would have paid less for it.
`
`CLASS ACTION COMPLAINT ‐ 2
`
`TERRELL MARSHALL LAW GROUP PLLC
`936 North 34th Street, Suite 300
`Seattle, Washington 98103‐8869
`TEL. 206.816.6603 FAX 206.319.5450
`www.terrellmarshall.com
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`Case 2:22-cv-01115 Document 1 Filed 08/10/22 Page 3 of 24
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`7.
`Ms. Pettis continues to desire to purchase the Product from Defendants.
`However, Ms. Pettis is unable to determine if the Product is actually safe. Ms. Pettis
`understands that the composition of the Product may change over time. But as long as
`Defendant continues to market its Product as safe, she will be unable to make informed
`decisions about whether to purchase Defendant’s Product and will be unable to evaluate the
`different prices between Defendant’s Product and competitor’s products. Ms. Pettis is further
`likely to be repeatedly misled by Defendant’s conduct, unless and until Defendant is compelled
`to ensure that the Product marketed, labeled, packaged and sold as a quality and healthy spice
`is, in fact, a safe and healthy spice.
`Defendants
`8.
`Defendant Amazon.com, Inc. is a Delaware corporation with its corporate
`headquarters and principal place of business located in Seattle, Washington. In 2017,
`Defendant Amazon.com acquired Defendant Whole Foods for $13.7 billion.1
`9.
`Defendant Whole Foods is a Delaware corporation with its headquarters and
`principal place of business at 525 N Lamar Blvd, Austin, TX 78703. Defendant manufactures,
`markets, and sells herbs and spices under the Whole Foods 365 brand name throughout the
`United States. During the relevant period, Defendant controlled the manufacture, design,
`testing, packaging, labeling, marketing, advertising, promotion, distribution, and sales of its
`Products. Defendant therefore had complete control over how to label its Products as to their
`contents. The Products are sold at Whole Foods brick and mortar locations, online, and on
`Amazon.com.
`
`III.
`JURISDICTION AND VENUE
`10.
`This Court has subject matter jurisdiction over this action pursuant to the Class
`Action Fairness Act of 2005, Pub. L. No. 109‐2 Stat. 4 (“CAFA”), which, inter alia, amends 28
`
`
`1See https://slate.com/business/2021/06/why‐amazon‐bought‐whole‐foods‐groceries‐
`online.html#:~:text=In%202017%2C%20Amazon%20entered%20the,purchase%20was%20a%20cataclysmic%20eve
`nt (last accessed July 21, 2022).
`
`CLASS ACTION COMPLAINT ‐ 3
`
`TERRELL MARSHALL LAW GROUP PLLC
`936 North 34th Street, Suite 300
`Seattle, Washington 98103‐8869
`TEL. 206.816.6603 FAX 206.319.5450
`www.terrellmarshall.com
`
`
`
`Case 2:22-cv-01115 Document 1 Filed 08/10/22 Page 4 of 24
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`
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`U.S.C. § 1332, at subsection (d), conferring federal jurisdiction over class actions where, as here:
`(a) there are 100 or more members in the proposed classes; (b) some members of the proposed
`classes have a different citizenship from Defendant; and (c) the claims of the proposed class
`members exceed the sum or value of five million dollars ($5,000,000) in aggregate. See 28
`U.S.C. § 1332(d)(2) and (6).
`11.
`This Court has personal jurisdiction over Defendants because Defendant
`Amazon.com, the parent company of Defendant Whole Foods, maintains its principal place of
`business in this District.
`12.
`Venue is proper in this District pursuant to 28 U.S.C. § 1391 because Defendant
`Amazon.com is headquartered and has its principal place of business in this District, a
`substantial part of the conduct giving rise to Plaintiff’s claims occurred in this District, and
`Defendant conducts substantial business in this District.
`13.
`Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because a substantial
`part of the events or omissions giving rise to these claims occurred in, were directed to and/or
`emanated from this District. Defendant Amazon.com resides within this judicial district and a
`substantial part of the events giving rise to the claims alleged herein occurred within this
`judicial district.
`
`A.
`
`IV.
`FACTUAL ALLEGATIONS
`Lead, Arsenic, and Cadmium Are Toxic
`14.
`Lead, arsenic, and cadmium are heavy metals. As described more fully below,
`the harmful effects of heavy metals are well‐documented, particularly on children. Exposure
`puts children at risk for lowered IQ, behavioral problems (such as attention deficit hyperactivity
`disorder), type 2 diabetes, and cancer, among other health issues. Heavy metals also pose risks
`to adults. Even modest amounts of heavy metals can increase the risk of cancer, cognitive and
`reproductive problems, and other adverse conditions. As such, it is important to limit exposure.
`
`CLASS ACTION COMPLAINT ‐ 4
`
`TERRELL MARSHALL LAW GROUP PLLC
`936 North 34th Street, Suite 300
`Seattle, Washington 98103‐8869
`TEL. 206.816.6603 FAX 206.319.5450
`www.terrellmarshall.com
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`Case 2:22-cv-01115 Document 1 Filed 08/10/22 Page 5 of 24
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`15.
`“No amount of lead is known to be safe.”2 Exposure to lead may cause anemia,
`weakness, and kidney and brain damage.3 Lead can affect almost every organ and system in the
`body. Lead accumulates in the body over time, and can lead to health risks and toxicity,
`including inhibiting neurological function, anemia, kidney damage, seizures, and in extreme
`cases, coma and death. Lead can also cross the fetal barrier during pregnancy, exposing the
`mother and developing fetus to serious risks, including reduced growth and premature birth.
`Lead exposure is also harmful to adults as more than 90 percent of the total body burden of
`lead is accumulated in the bones, where it is stored. Lead in bones may be released into the
`blood, re‐exposing organ systems long after the original exposure.4
`16.
`Arsenic is also dangerous to humans. “Arsenic is ranked first among toxicants
`posing a significant potential threat to human health based on known or suspected toxicity.”5
`Long term exposure is linked to cardiovascular disease. Arsenic can also cause bladder, lung,
`liver, and skin cancer, strokes, and diabetes. Recent studies have suggested that arsenic may
`cause IQ deficits in children and may be harmful to fetal development as “even low
`concentrations of arsenic impair neurological function[.]”6 There is “essentially no safe level” of
`arsenic.7
`
`
`2 See https://www.npr.org/sections/thetwo‐way/2016/08/13/489825051/lead‐levels‐below‐epa‐limits‐can‐still‐
`impact‐your‐health (last accessed August 8, 2022).
`3 Centers for Disease Control and Prevention, “Health Problems Caused by Lead,” The National Institute for
`Occupational Safety and Health (NIOSH),
`https://www.cdc.gov/niosh/topics/lead/health.html#:~:text=Exposure%20to%20high%20levels%20of,a%20develo
`ping%20baby's%20nervous%20system (last accessed August 8, 2022).
`4 State of New York Department of Health, “Lead Exposure in Adults: A Guide for Health Care Providers,”
`https://www.health.ny.gov/publications/2584.pdf (last accessed August 8, 2022).
`5 Christina R. Tyler and Andrea M. Allan, “The Effects of Arsenic Exposure on Neurological and Cognitive Dysfunction
`in Human and Rodent Studies: A Review,” Curr Environ Health Rep. 2014; 1(2): 132‐147,
`https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4026128/ (last accessed August 8, 2022).
`6 Id.
`7 See https://publicintegrity.org/environment/what‐to‐do‐if‐your‐drinking‐water‐contains‐arsenic/ (last accessed
`August 8, 2022).
`
`CLASS ACTION COMPLAINT ‐ 5
`
`TERRELL MARSHALL LAW GROUP PLLC
`936 North 34th Street, Suite 300
`Seattle, Washington 98103‐8869
`TEL. 206.816.6603 FAX 206.319.5450
`www.terrellmarshall.com
`
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`Case 2:22-cv-01115 Document 1 Filed 08/10/22 Page 6 of 24
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`17.
`Cadmium is similarly harmful. “[A]ny cadmium exposure should be avoided.”8
`Exposure to cadmium may lead to damage to kidneys, lungs, and bones.9 “Even relatively low
`chronic exposure can cause irreversible renal tubule damage, potentially progressing to
`glomerular damage and kidney failure” and “bone loss often is seen in concert with these
`effects.”10 This metal is also known to cause cancer and targets the body’s cardiovascular, renal,
`gastrointestinal, neurological, reproductive, and respiratory systems.11
`B.
`Whole Foods’ Herbs & Spices Contain Toxic Arsenic, Lead, and Cadmium.
`18.
`In November of 2021, Consumer Reports published a report titled “Your Herbs
`and Spices Might Contain Arsenic, Cadmium, and Lead.” Employing the Analysis for Arsenic,
`Cadmium, Lead, and Mercury by Triple Quadruple Inductively Coupled Plasma Mass
`Spectrometry (IC‐QQQ‐MS), With Collision Cell, Consumer Reports determined that each of the
`Products contains toxic Heavy Metals. Consumer Reports’ samples were prepared and analyzed
`in accordance with the Association of Official Analytical Chemists (AOAC) Method 2015.01.
`19.
`Consumer Reports analyzed “126 individual products from national and private‐
`label brands,” including Whole Food’s.12
`20.
`Consumer Reports determined that “[r]oughly one‐third of the tested products,
`40 in total, had high enough levels of arsenic, lead, and cadmium combined, on average, to
`pose a health concern for children when regularly consumed in typical serving sizes. Most
`raised concern for adults, too.”13
`21.
`The authors cautioned that “just one serving—3/4 teaspoons or more—per day
`leaves little room for heavy metal exposure from other sources” including in “fruit juice, baby
`
`8 M. Nathaniel Mead, “Cadmium Confusion: Do Consumers Need Protection,” Environ Health Perspect. 2010 Dec;
`118(12): A528‐A534, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3002210/ (last accessed August 8, 2022).
`9 See Agency for Toxic Substances and Disease Registry, “ToxFAQs for Cadmium,” Toxic Substances Portal,
`https://wwwn.cdc.gov/TSP/ToxFAQs/ToxFAQsDetails.aspx?faqid=47&toxid=15 (last accessed August 8, 2022).
`10 Mead, supra note 8.
`11 See Occupational Safety & Health, “Cadmium,” https://www.osha.gov/cadmium (last accessed August 8, 2022).
`12 Lisa L. Gill, “Your Herbs and Spices Might Contain Arsenic, Cadmium, and Lead,” Consumer Reports (Nov. 9,
`2021), https://www.consumerreports.org/food‐safety/your‐herbs‐and‐spices‐might‐contain‐arsenic‐cadmium‐
`and‐lead/ (last accessed August 8, 2022).
`13 Id.
`
`CLASS ACTION COMPLAINT ‐ 6
`
`TERRELL MARSHALL LAW GROUP PLLC
`936 North 34th Street, Suite 300
`Seattle, Washington 98103‐8869
`TEL. 206.816.6603 FAX 206.319.5450
`www.terrellmarshall.com
`
`
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`Case 2:22-cv-01115 Document 1 Filed 08/10/22 Page 7 of 24
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`food, and rice[.]”14 These latter food categories have also tested high for heavy metals and have
`been the subject of numerous lawsuits.
`22. With regards to the results, James E. Rogers, PhD, director of food safety and
`testing at Consumer Reports remarked that “[w]hen people think about heavy metals in their
`diet, if they do at all, it’s probably the lead in their drinking water or arsenic in their children’s
`fruit juices or cereals . . . But our tests show that dried herbs and spices can be a surprising, and
`worrisome, source for children and adults.”15
`23.
`Concerning the source of the heavy metals in herbs and spices, Consumer
`Reports stated that heavy metals may get into food, “including herbs and spices, during
`manufacturing—from processing equipment or packaging[.]”16
`24.
`Along these lines, Consumer Reports determined that “it is possible for herb and
`spice companies to limit heavy metals in their products” as “[a]bout two‐thirds of the spices
`[Consumer Reports] tested did not have concerning levels of heavy metals.”17
`25.
`Yet, upon information and belief, Defendants fail to adequately test for Heavy
`Metals in its Products.
`26.
`Instead, Defendants chose to ignore the health of the consuming public in
`pursuit of profit.
`
`C.
`
`The Presence (or Risk) of Toxic Heavy Metals in Whole Foods’ Products Far Exceeds
`Expectations of Reasonable Consumers
`27.
`According to Global Market Insights, “[t]he demand for spices and seasonings
`has increased in recent years owing to their varied nutritional benefits.”18 Indeed, “[m]ore
`Americans are considering the use of spices and herbs for medicinal and therapeutic/remedy
`
`
`
`14 Id.
`15 Id.
`16 Id.
`17 Id.
`18 Global Market Insights, “North America Seasonings Market to Exceed $5bn by 2027,” Press Releases (Oct. 22,
`2021), https://www.gminsights.com/pressrelease/north‐america‐seasonings‐
`market?utm_source=globenewswire.com&utm_medium=referral&utm_campaign=Paid_globenewswire (last
`accessed August 8, 2022).
`
`CLASS ACTION COMPLAINT ‐ 7
`
`TERRELL MARSHALL LAW GROUP PLLC
`936 North 34th Street, Suite 300
`Seattle, Washington 98103‐8869
`TEL. 206.816.6603 FAX 206.319.5450
`www.terrellmarshall.com
`
`
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`Case 2:22-cv-01115 Document 1 Filed 08/10/22 Page 8 of 24
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`use, especially for various chronic conditions” as “[t]here is now ample evidence that spices and
`herbs possess antioxidant, anti‐inflammatory, antitumorigenic, anticarcinogenic, and glucose‐
`and cholesterol ‐lowering activities as well as properties that affect cognition and mood.”19 As
`such, the safety of herbs and spices that can be easily purchased to season such food, amongst
`others, is a material fact to consumers (such as Plaintiff and the Class members).
`28.
`Given the negative effects of toxic heavy metals (such as arsenic, lead, and
`cadmium) on child development and adult health, the presence of these substances in food is a
`material fact to reasonable consumers, including Plaintiff and members of the Class.
`29.
`Defendants know that the safety of their herbs and spices (as a general matter)
`is a material fact to reasonable consumers, as demonstrated below.
`30.
`As such, Defendants also know that the presence (or risk) of toxic Heavy Metals
`in their herbs and spices is a material fact to reasonable consumers, including Plaintiff and the
`Class members.
`31.
`A consumer survey confirms that purchasers of spices consider it important to
`know if there are Heavy Metals (or the risk of Heavy Metals) in the products even in small
`amounts. Plaintiff’s counsel conducted a nationwide survey of just over 500 adult consumers
`who bought spices, including Defendants’ spices, within the past two years.20 The vast majority
`(approximately 94%) answered that the presence or risk of even a small amount of Heavy
`Metals in the spices would be either important or very important to their purchasing
`decisions.21
`
`
`19 T Alan Jiang, “Health Benefits of Culinary Herbs and Spices,” J AOAC Int. 2019 Mar 1; 102(2): 395‐411,
`10.5740/jaoacint.18‐0418 (last accessed August 8, 2022).
`20 The survey included 503 participants over the age of 18, 259 of whom were female, 242 of whom were male, and
`2 of whom were non‐binary. Some 67 percent of the participants were from the following states, with a minimum
`of 3% (15 participants) each: Arizona, California, Florida, Illinois, Maryland, Michigan, New Jersey, New York, North
`Carolina, Ohio, Pennsylvania, Texas and Washington. The remaining approximately 33 percent, with a minimum of
`one participant each, were from the following states: Alabama, Alaska, Arkansas, Colorado, Connecticut, District of
`Columbia, Georgia, Hawaii, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Minnesota,
`Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Dakota, Oklahoma, Oregon,
`South Carolina, Tennessee, Utah, Virginia, West Virginia and Wisconsin.
`21 The question in the survey was as follows: “A November 2021 report of an investigation by Consumer Reports
`reveals that certain brands of particular herbs and spices contain heavy metals consisting of lead, arsenic, and/or
`
`CLASS ACTION COMPLAINT ‐ 8
`
`TERRELL MARSHALL LAW GROUP PLLC
`936 North 34th Street, Suite 300
`Seattle, Washington 98103‐8869
`TEL. 206.816.6603 FAX 206.319.5450
`www.terrellmarshall.com
`
`
`
`Case 2:22-cv-01115 Document 1 Filed 08/10/22 Page 9 of 24
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`32.
`Herbs and spices manufacturers (such as Defendants) hold a special position of
`public trust. Consumers believe that they would not sell products that are unsafe.
`33.
`Defendants knew that if the presence (or risk) of toxic Heavy Metals in their
`herbs and spices was disclosed to Plaintiff and the Class members, then Plaintiff and the Class
`members would be unwilling to purchase them or would pay less for them.
`34.
` In light of Defendants’ knowledge that Plaintiff and the Class members would be
`unwilling to purchase the Products or would pay less for the Products if they knew that they
`contained (or risked containing) toxic Heavy Metals, Defendants intentionally and knowingly
`concealed this fact from Plaintiff and the Class members and did not disclose the presence (or
`risk) of these toxic Heavy Metals on the labels of the Products.
`35.
`Defendants knew or should have known that Plaintiff and the Class members
`would rely upon the packages of the Products and intended for them to do so but failed to
`disclose the presence (or risk) of Heavy Metals.
`36.
`Defendants knew or should have known that they owed consumers a duty of
`care to adequately test for Heavy Metals in the Products, which they failed to do.
`37.
`Additionally, Defendants knew or should have been aware that a reasonable
`consumer would consume the Products multiple times each day, and possibly multiple
`Products. This leads to repeated exposure to the Heavy Metals.
`38.
`Defendants knew or should have known they could control the levels of Heavy
`Metals in the Products by properly monitoring the ingredients for Heavy Metals and adjusting
`any formulation to reduce or eliminate ingredients that contained or may contain higher levels
`of Heavy Metals.
`
`
`cadmium. Please select how important, if at all, would it be to your purchasing decision if the spice(s) you purchased
`contained, or risked containing, even a small amount of the heavy metals previously described?” The response
`choices provided were as follows: Not at all important; important; very important.
`
`CLASS ACTION COMPLAINT ‐ 9
`
`TERRELL MARSHALL LAW GROUP PLLC
`936 North 34th Street, Suite 300
`Seattle, Washington 98103‐8869
`TEL. 206.816.6603 FAX 206.319.5450
`www.terrellmarshall.com
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`39.
`Prior to purchasing the Products, Plaintiff and the Class members were exposed
`to, saw, read, and understood Defendants’ labels, and relied upon them in purchasing the
`Products, but Defendants failed to disclose the presence (or risk) of Heavy Metals.
`40.
`As a result of Defendants’ concealment of the fact that the Products contained
`(or risked containing) toxic Heavy Metals, Plaintiff and the Class members reasonably believed
`that Defendants’ Products were free from substances that would negatively affect children’s
`development as well as their own health.
`41.
`In reliance upon Defendants’ labels that contained material omissions, Plaintiff
`and the Class members purchased Defendants’ Products.
`42.
`Had Plaintiff and the Class members known the truth—i.e., that the Products
`contained (or risked containing) toxic Heavy Metals, rendering them unsafe for consumption by
`children and adults—they would not have been willing to purchase them or would have paid
`less for them.
`43.
`Therefore, as a direct and proximate result of Defendants’ omissions concerning
`the Products, Plaintiff and the Class members purchased the Products.
`44.
`Plaintiff and the Class members were harmed in the form of the monies they
`paid for the Products which they would not otherwise have paid had they known the truth
`about the Products. Since the presence (or risk) of toxic Heavy Metals in herbs and spices
`renders them unsafe for human consumption, the Products that Plaintiff and the Class
`members purchased are worthless or are worth less than Plaintiff and the Class paid for them.
`45.
`Defendants’ label omissions at issue in this Complaint are put in context by
`Defendant Whole Foods’ website, where Defendants prominently touts that they launched the
`“365 by Whole Foods Market” brand to offer “convenience and everyday low prices on natural
`and organic products that meet the company’s industry‐leading quality standards” in 2016.22
`
`
`22 See https://media.wholefoodsmarket.com/whole‐foods‐market‐introduces‐365‐by‐whole‐foods‐market‐
`chain#:~:text=today%20announced%20the%20name%20of,company's%20industry%2Dleading%20quality%20stan
`dards (last accessed July 21, 2022).
`
`CLASS ACTION COMPLAINT ‐ 10
`
`TERRELL MARSHALL LAW GROUP PLLC
`936 North 34th Street, Suite 300
`Seattle, Washington 98103‐8869
`TEL. 206.816.6603 FAX 206.319.5450
`www.terrellmarshall.com
`
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`Case 2:22-cv-01115 Document 1 Filed 08/10/22 Page 11 of 24
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`46.
`On Defendant’s website, it further claims: “Our purpose is to nourish people and
`the planet. We’re a purpose‐driven company that aims to set the standards of excellence for
`food retailers. Quality is a state of mind at Whole Foods Market.”23
`47.
`In its “Core Values” it heralds that it sells “products with ingredients you can
`trust,” and that its team vets its “products to make sure they meet our high standards by
`researching ingredients, reading labels and auditing sourcing practices — all to make shopping
`easier for you. Remember, if it doesn’t meet our standards, we don’t sell it.”24
`48.
`The foregoing statements on the website demonstrate that Defendants know
`that reasonable consumers consider it important that the Products are pure, and high quality
`and thus safe and free from toxins such as the Heavy Metals.
`49.
`The Products’ labels are materially deceptive, false and misleading given
`Defendants’ material omission about the presence (or risk) of Heavy Metals as described above.
`FED. R. CIV. P. 9(b) ALLEGATIONS
`50.
`Rule 9(b) of the Federal Rules of Civil Procedure provides that “[i]n alleging fraud
`or mistake, a party must state with particularity the circumstances constituting fraud or
`mistake.” To the extent necessary, as detailed in the paragraphs above and below, Plaintiff has
`satisfied the requirements of Rule 9(b) by establishing the following elements with sufficient
`particularity.
`51. WHO: Defendants made material omissions of fact in their packaging of the
`Products by omitting the presence (or risk) of Heavy Metals.
`52. WHAT: Defendants’ conduct was and continues to be fraudulent and deceptive
`because it has the effect of deceiving consumers into believing that the Products do not contain
`(or risk containing) Heavy Metals. Defendant omitted from Plaintiff and Class members that the
`Products contain (or risk containing) Heavy Metals. Defendants knew or should have known this
`information is material to all reasonable consumers and impacts consumers’ purchasing
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`23 See https://www.wholefoodsmarket.com/mission‐values (last accessed August 8, 2022).
`24 See https://www.wholefoodsmarket.com/mission‐values/core‐values (last accessed August 8, 2022).
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`CLASS ACTION COMPLAINT ‐ 11
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`TERRELL MARSHALL LAW GROUP PLLC
`936 North 34th Street, Suite 300
`Seattle, Washington 98103‐8869
`TEL. 206.816.6603 FAX 206.319.5450
`www.terrellmarshall.com
`
`
`
`Case 2:22-cv-01115 Document 1 Filed 08/10/22 Page 12 of 24
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`decisions. Yet, Defendants have omitted from the Products’ labeling the fact that they contain
`(or risk containing) Heavy Metals.
`53. WHEN: Defendants made material omissions detailed herein, that the Products
`do contain (or risk containing) Heavy Metals, continuously throughout the applicable relevant
`periods.
`54. WHERE: Defendants’ omissions were made on the labeling and packaging of the
`Products and were thus viewed by every purchaser, including Plaintiff and the Class, at the
`point of sale in every transaction. The Products are sold worldwide in brick‐and‐mortar stores
`and online stores nationwide.
`55.
`HOW: Defendants omitted from the Products’ labeling the fact that they contain
`(or risk containing) Heavy Metals. And as discussed in detail throughout this Complaint, Plaintiff
`and Class members read and relied on Defendants’ label omissions before purchasing the
`Products.
`56. WHY: Defendants omitted from the Products’ labeling the fact that they contain
`(or risk containing) Heavy Metals for the express purpose of inducing Plaintiff and Class
`members to purchase the Products at a substantial price premium or more than they would
`have paid had they known the truth about the Products. As such, Defendants profited by selling
`the Products to at least thousands of consumers throughout the nation, including Plaintiff and
`the Class members.
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`CLASS ACTION ALLEGATIONS
`57.
`Plaintiff brings this action individually and on behalf of all other persons similarly
`situated pursuant to Federal Rule of Civil Procedure 23. The class definition(s) may depend on
`the information obtained throughout discovery. Notwithstanding, at this time, Plaintiff brings
`this action and seeks certification of the following proposed class:
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`Class: All persons within the United States who purchased the
`Products during the fullest period of law.
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`CLASS ACTION COMPLAINT ‐ 12
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`TERRELL MARSHALL LAW GROUP PLLC
`936 North 34th Street, Suite 300
`Seattle, Washington 98103‐8869
`TEL. 206.816.6603 FAX 206.319.5450
`www.terrellmarshall.com
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`Case 2:22-cv-01115 Document 1 Filed 08/10/22 Page 13 of 24
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`58.
`Plaintiff also brings this action on behalf of the following State Subclass (the
`“Pennsylvania” Subclass”):
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`Pennsylvania Subclass: All persons who purchased the Products in the
`State of Pennsylvania during the fullest period of law.
`59.
`Excluded from the proposed Classes are the Defendants, and any entities in
`which the Defendants have controlling interest, the Defendants’ agents, employees and their
`legal representatives, any Judge to whom this action is assigned and any member of such
`Judge’s staff and immediate family, and all resellers of the Products.
`60.
`Plaintiff reserves the right to amend the definition of the Classes if discovery or
`further investigation reveals that the Classes should be expanded or otherwise modified.
`61.
`Plaintiff further reserves the right to amend the above class definition as
`appropriate after further investigation and discovery, including by seeking to certify a narrower
`multi‐state class (or classes) in lieu of a nationwide class if appropriate.
`62.
`Numerosity – Federal Rule of Civil Procedure 23(a)(1). The members of the
`Classes are so numerous that their individual joinder herein is impracticable. On information
`and belief, members of the Classes number in the thousands to tens of thousands. The number
`of members in the Classes is presently unknown to Plaintiff but may be verified by Defendants’
`records. Members of the Classes may be notified of the pendency of this action by mail, email,
`Internet postings, and/or publication.
`63.
`Commonality and Predominance – Federal Rule of Civil Procedure 23(a)(2) and
`23(b)(3). Common questions of law and fact exist as to all members of the Classes and
`predominate over questions affecting only individual members of the Classes. Such common
`questions of law or fact include, but are not limited to, the following:
`a.
`whether the Products contain (or risk containing) toxic Heavy Metals;
`b.
`whether Defendants’ conduct is unethical, oppressive, unscrupulous, and/or
`substantially injurious to consumers;
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`CLASS ACTION COMPLAINT ‐ 13
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`TERRELL MARSHALL LAW GROUP PLLC
`936 North 34th Street, Suite 300
`Seattle, Washington 98103‐8869
`TEL. 206.816.6603 FAX 206.319.5450
`www.terrellmarshall.com
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`Case 2:22-cv-01115 Document 1 Filed 08/10/22 Page 14 of 24
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`c.
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`whether the amount of toxic Heavy Metals in the Products is material to a
`reasonable consumer;
`whether Defendants had a duty to disclose that the Products contained (or
`risked containing) toxic Heavy Metals;
`whethe