Complaint

Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.1 Page 1 of 50 1 BURSOR & FISHER, P.A. L. Timothy Fisher (State Bar No. 191626) 2 Sean L. Litteral (State Bar No. 331985) Julia K. Venditti (State Bar No. 332688) 3 1990 North California Boulevard, Suite 940 Walnut Creek, CA 94596 4 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 5 Email: ltfisher@bursor.com slitteral@bursor.com 6 jvenditti@bursor.com 7 Attorneys for Plaintiff and the Putative Class 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 ROCIO LOPEZ, individually and on Case No. '22CV0421 L RBB behalf of all others similarly situated, 13 Plaintiff, CLASS ACTION COMPLAINT 14 v. JURY TRIAL DEMANDED 15 ABBOTT LABORATORIES, 16 Defendant. 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.2 Page 2 of 50 1 Plaintiff Rocio Lopez (“Plaintiff”) brings this action on behalf of herself and 2 all others similarly situated against Defendant Abbott Laboratories (“Defendant”). 3 Plaintiff makes the following allegations pursuant to the investigation of her counsel 4 and based upon information and belief, except as to the allegations specifically 5 pertaining to herself, which is based on personal knowledge. 6 NATURE OF THE ACTION 7 1. This is a putative class action lawsuit against Defendant for cheating 8 consumers by uniformly advertising, marketing, and selling nutritional food products 9 under the brand name “Similac” (collectively, the “Products,” enumerated below), 10 each of which prominently features the representations “Non-GMO,” or similar 11 claims related to the absence of ingredients derived from genetically modified 12 organisms (“GMO”) (collectively, the “Non-GMO Claims”). However, contrary to 13 Defendant’s claims, each of the purportedly “Non-GMO” Products do, in fact, 14 contain ingredients that are derived from genetically modified food sources and 15 therefore constitute GMOs. 16 2. Defendant prominently labels every Product sold in the United States 17 as “Non-GMO.” Defendant does this because consumers perceive all-natural foods 18 as better, healthier, and more wholesome. Indeed, in recent years, consumers have 19 become significantly more aware and sensitive to genetically modified organisms 20 (“GMOs”) in their food. Many consumers want to avoid GMOs for a variety of 21 reasons, including, but not limited to, the following: (1) health risks associated with 22 ingesting foods derived from genetically modified (“GM”) crops;1 (2) concerns of 23 the ingestion of pesticides and other toxins; (3) interest in promoting sustainable 24 living and local farming; and (4) negative environmental effects associated with 25 growing GM crops. As a result, many consumers, including Plaintiff, try to buy 26 1 GM crops such as canola, corn, and soy, are crops whose genetic material has been altered by 27 humans using genetic engineering techniques. The World Health Organization defines GMOs, which include GM crops, as “organisms in which the genetic material (DNA) has been altered in a 28 way that does not occur naturally.” Accordingly, GM crops are not natural, but man-made. CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 1  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.3 Page 3 of 50 1 products that are not derived from GMOs, and a movement has developed 2 demanding consumer products that are non-GMO products. Thus, the market for all 3 natural foods has grown rapidly in recent years, and Defendant seeks to take 4 advantage of this trend through false advertising. 5 3. But Defendant’s Non-GMO Claims concerning the Products are false, 6 misleading, and deceptive to consumers, who reasonably understand such claims to 7 mean that a product was produced without genetic engineering and its ingredients are 8 not derived from GMOs. Specifically, Plaintiff and consumers reasonably 9 understand Defendant’s Non-GMO Claims to mean that Defendant’s Products are 10 100% free of ingredients derived from GM crops or food sources sourced from 11 animals that have been raised on GMO feed. Yet, contrary to Defendant’s claims, 12 Defendant’s Products are in fact loaded with ingredients derived from GM-crops 13 such as corn and soy, and many of Defendant’s Products also contain protein and/or 14 dairy sources derived from cows raised on GMO feed. Defendant’s Products also 15 contain numerous artificial ingredients that were genetically engineered in a 16 laboratory setting using biotechnologies. Accordingly, Defendant’s Non-GMO 17 Claims are misleading and highly deceptive to reasonable consumers. 18 4. At issue are the following products, which all contain the representation 19 “Non-GMO” on the labeling and/or packaging: Similac Pro-Advance Ready-to-Feed 20 Infant Formula, Similac Pro-Advance Powder Infant Formula, Similac Pro-Advance 21 Powder Infant Formula with Iron, Similac Pro-Sensitive Ready-to-Feed Infant 22 Formula, Similac Pro-Total Comfort Ready-to-Feed Infant Formula, Similac Pro- 23 Total Comfort Baby Formula, Go & Grow by Similac Toddler Drink Powder, Go & 24 Grow by Similac Sensitive Toddler Drink for Lactose Sensitivity Powder, Pure Bliss 25 by Similac Toddler Drink Powder, Similac For Supplementation Gentle Infant 26 Formula Powder, and Similac For Spit-Up Easy-to-Digest Powder (collectively, the 27 “Products”). As noted above, each of these purportedly “Non-GMO” Products 28 CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 2  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.4 Page 4 of 50 1 contain GMOs. Plaintiff reserves the right to expand this Product list as more 2 information becomes available during discovery. 3 5. By prominently featuring the Non-GMO Claims on the labeling and/or 4 packaging of its Products, Defendant intends to induce consumers to pay more than 5 they would pay for other comparable products that are not falsely labeled with Non- 6 GMO Claims, and consumers are so induced as a result of these claims. Thus, 7 although (as discussed below) the Products have been a marketing sensation and an 8 unmitigated financial success, Defendant’s success has been the result of fraudulent, 9 unlawful, and unfair business practices in the marketing and sale of the Products. 10 Defendant’s misleading representations and unfair business practices described 11 herein are plainly improper and unacceptable—particularly for a company that touts 12 that “We listen to moms and dads, and they’ve told us they want a non-G.M.O. 13 option;” that “We want to make sure we meet the desires of parents;” that “Over one- 14 third of [Similac] consumers say [non-GMO infant formula] would appeal to them 15 and given them peace of mind;”2 that “when parents told us they wanted a Non- 16 GMO option for their infant formula, we answered the call”; and that “We’re 17 expanding our product line with Similac Advance Non-GMO, which is the first and 18 only leading formula brand labeled Non-GMO in the U.S.”3 19 6. For the foregoing reasons, Plaintiff brings this action individually and 20 on behalf of similarly situated individuals against Defendant for: (i) violation of 21 California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200, et 22 seq.; (ii) violation of California’s False Advertising Law (“FAL”), Cal. Bus. & Prof. 23 Code §§ 17500, et seq.; (iii) violation of California’s Consumers Legal Remedies 24 Act (“CLRA”), Cal. Civ. Code §§ 1750, et seq.; (iv) breach of express warranty; (v) 25 breach of the implied warranty of merchantability; (vi) unjust enrichment / 26 2 Stephanie Strom, “Similac Advance Infant Formula to Be Offered G.M.O-Free,” The New York Times (May 25, 2015), https://www.nytimes.com/2015/05/26/business/similac-advance-infant- 27 formula-to-be-offered-gmo-free.html (last accessed Mar. 9, 2022). 3 Similac, “Similac Advance Non-GMO – a Non-GMO option from the brand you trust,” 28 https://static.abbottnutrition.com/cms-prod/similac.com/img/SIM-PDF-NON-GMO-FAQ.pdf. CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 3  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.5 Page 5 of 50 1 restitution; (vii) negligent misrepresentation; (viii) fraud; and (ix) fraudulent 2 misrepresentation. 3 PARTIES 4 7. Plaintiff Rocio Lopez is a natural person and a citizen of California who 5 resides in Imperial, California. In approximately October 2021, Ms. Lopez 6 purchased Defendant’s Similac Pro-Advance Infant Formula With Iron Milk-Based 7 Powder from a Costco brick-and-mortar retail store located in Imperial. Prior to her 8 purchase, Ms. Lopez reviewed the labeling, packaging, and marketing materials of 9 her Products and saw the false and misleading claims that, among other things, the 10 Products are purportedly “Non-GMO” infant formulas. Ms. Lopez understood these 11 claims to be representations and warranties by Defendant that the Products are free 12 of all traces of GMOs, do not contain ingredients derived from GM crops, and do not 13 contain any other synthetic ingredients created in a laboratory through the use of 14 biotechnologies. Ms. Lopez reasonably relied on these representations and 15 warranties in deciding to purchase the Products, and these representations were part 16 of the basis of the bargain in that she would not have purchased the Products, or 17 would not have purchased them on the same terms, if the true facts had been known. 18 As a direct result of Defendant’s material misrepresentations and omissions, Ms. 19 Lopez suffered, and continues to suffer, economic injuries. 20 8. Plaintiff continues to desire to purchase infant formulas that are Non- 21 GMO from Defendant. However, Plaintiff is unable to determine if the Product is 22 actually made from ingredients that are Non-GMO. Plaintiff understands that the 23 composition of the Product may change over time. But as long as Defendant may 24 use the phrase “Non-GMO” to describe the Product and it is not actually Non-GMO, 25 then when presented with false or misleading information when shopping, she will 26 be unable to make informed decisions about whether to purchase Defendant’s 27 Product and will be unable to evaluate the different prices between Defendant’s 28 Product and competitor’s Products. Plaintiff is further likely to repeatedly be misled CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 4  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.6 Page 6 of 50 1 by Defendant’s conduct, unless and until Defendant is compelled to ensure that 2 Products marketed, labeled, packaged, and advertised as Non-GMO, are in fact Non- 3 GMO. 4 9. Defendant Abbott Laboratories is an Illinois corporation with its 5 principal place of business in Chicago, Illinois. Defendant Abbott Laboratories sells 6 its baby food and infant formulas under the “Similac” brand name. Similac’s baby 7 food products and infant formulas are sold nationwide, including throughout the 8 State of California. 9 JURISDICTION AND VENUE 10 10. This Court has subject matter jurisdiction over this action pursuant to 11 28 U.S.C. § 1332(d) because there are more than 100 class members and the 12 aggregate amount in controversy exceeds $5,000,000.00, exclusive of interest, fees, 13 and costs, and at least one Class member is a citizen of a state different from 14 Defendant. 15 11. This Court has personal jurisdiction over Defendant because Defendant 16 purposefully availed itself of this forum by conducting substantial business within 17 California such that Defendant has significant, continuous, and pervasive contacts 18 with the State of California. 19 12. Venue is proper in this District pursuant to 28 U.S.C. § 1391 because 20 Defendant does substantial business in this District and a substantial part of the 21 events giving rise to Plaintiff’s claims took place within this District, as Plaintiff 22 purchased the Products in this District and is a citizen and resident of this District. 23 FACTUAL ALLEGATIONS 24 A. Background on Genetically Modified Organisms (“GMOs”) 25 13. The World Health Organization defines genetically modified organisms 26 (“GMOs”) as “organisms in which the genetic material (DNA) has been altered in a 27 28 CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 5  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.7 Page 7 of 50 1 way that does not occur naturally.”4 2 14. Genetic modification (“GM”), also called genetic engineering, 3 biotechnology, or bioengineering, is the process scientists use to make GMOs. It is 4 an artificial laboratory-based technique that is specifically designed to enable the 5 transfer of genes between unrelated or distantly related organisms. It includes any 6 process in which genetic material is artificially manipulated in a laboratory, and may 7 involve creating combinations of plant, animal, bacteria, and virus genes that do not 8 occur in nature or through traditional crossbreeding methods. Genetic engineering 9 also includes newer forms of biotechnology such as CRISPR, TALEN, RNAi, ODM, 10 and gene drives. These techniques confer new properties or “traits” that are not 11 naturally present in the organism. When incorporated into the DNA of an organism, 12 genetically modified genes modify the functional characteristics – the traits – of an 13 organism. 14 15. GM crops, such as canola, corn, and soy, are crops whose genetic 15 material has been altered by humans using genetic engineering techniques. GM 16 crops are not natural, but man-made. There are wide-ranging controversies related to 17 GM crops, including health risks from ingesting GM foods and negative 18 environmental effects associated with growing GM crops. 19 16. As of 2021, approximately 94% of soybeans, 92% of corn, and 93% of 20 canola grown in the United States are genetically modified, as are 95% of sugar 21 beets. 5 22 23 4 World Health Organization (WHO), 20 questions on genetically modified foods (2002), available at http://www.who.int/foodsafety/publications/biotech/20questions/en/index.html. 24 5 See Center for Food Safety, “About Genetically Engineered Foods,” 25 https://www.centerforfoodsafety.org/issues/311/ge-foods/about-ge- foods#:~:text=Center%20for%20Food%20Safety%20seeks,human%20health%20and%20the%20e 26 nvironment (last visited March 9, 2022); see also https://www.nestleusa.com/gmos/about- genetically-modified-crops-in-the- 27 us#:~:text=Approximately%2093%20percent%20of%20the,is%20from%20genetically%20modifie d%20seed.&text=Corn%20is%20the%20most%20widely,is%20from%20genetically%20modified 28 %20seeds (last visited March 9, 2022). CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 6  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.8 Page 8 of 50 1 (a) Corn (Approx. 92% of U.S. crop is GMO) – Corn is genetically 2 modified to be resistant to glyphosate or glufosinate herbicides. Most GM-corn is 3 used for human consumption. In food products, GM-corn crop is used to produce 4 corn flour, meal, oil, starch, modified food starch, corn gluten, corn syrup, and 5 sweeteners such as fructose, dextrose, glucose and modified come from corn. 6 Genetically modified corn has been linked to health problems, including weight gain 7 and organ disruption. 8 (b) Soybeans (Approx. 94% of U.S. crop is GMO) – Soybeans are 9 the most important crop worldwide for producing oil and protein. Soybean and its 10 processed derivatives are used in a multitude of food, groceries, supplements, and 11 cosmetics. Additionally, the remaining soy mass is used as protein-rich animal feed 12 for fish, poultry, pigs, and beef. Tolerance to herbicides is by far the most important 13 commercial characteristic of GM-soybeans. So, not only are soybeans a genetically 14 engineered food crop, but farmers are also forced to use more and more pesticides to 15 combat adaptive super bugs and super weeds, thereby creating additional health 16 concerns for consumers. 17 (c) Canola or Rapeseed (Approx. 93% of U.S. crop is GMO and 18 95% of Canada’s crop is GMO) – Canola oil, which was originally bred from 19 rapeseed in Canada, is now genetically engineered for resistance to herbicides 20 (glyphosate or glufosinate), for high laurate canola and oleic acid canola. It is 21 considered one of the most chemically altered oils sold in the U.S. and Canada.6 22 (d) Sugar Beets (Approx. 95% of U.S. crop is GMO) – Sugar beets 23 are genetically engineered to be RoundUp ready, like corn. GM-sugar beets are used 24 25 26 6 27 See GMO 101, A Practical Guide: Potential Sources of Genetically Engineered Ingredients in Food, at 53, available at 28 https://play.google.com/books/reader?id=YeHXBQAAQBAJ&pg=GBS.PA2&hl=en. CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 7  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.9 Page 9 of 50 1 in refined sugar production, and the leftover fiber is used to feed animals at 2 Concentrated Animal Feeding Operations (“CAFO”).7 3 17. Thus, any of the ingredients derived from domestically produced 4 canola, corn, peas, rice, or soybeans are highly likely to contain GMOs, 5 notwithstanding Defendant’s Non-GMO Claims or similar product label 6 representations to the contrary. 7 B. “Non-GMO” Is A Highly Profitable Descriptor 8 18. Product packaging is a significant vehicle through which the purveyors 9 of natural and organic food products communicate material that they believe, and 10 reasonably expect, to be important to consumers in making purchasing decisions. 11 19. The health food market is no longer a niche market. Consumers have 12 been increasingly health conscious since the 1970s. They seek out and covet food 13 products that are natural and healthy and look for labels that convey these qualities in 14 the foods they choose to purchase. According to Natural Foods Merchandiser, a 15 leading information provider for the natural, organic, and health food industry, the 16 natural food industry enjoyed over $166 billion in revenue in 2019. This means that 17 since 2010, the natural food industry has more than doubled in size since it hit $81 18 billion in 2010. Consumer demand for non-GMO foods is expected to rapidly 19 increase into the next decade as well. 20 20. The designation “non-GMO” appeals to consumers for its health 21 attributes. This designation also appeals to reasonable consumers’ interest in 22 protecting the environment, promoting sustainable living and local farming, and 23 minimizing people’s and the Earth’s exposure to pesticides and other toxins. 24 21. Any doubt about the money generating power of natural and healthy 25 foods is dispelled by the entry and success of large conglomerates in the health food 26 market. For example, the well-known Kashi brand is owned by Kellogg, while 27 7 Id. at 244 (“Anything not listed as 100% cane sugar is suspect. Look for organic and non-GMO sweeteners, candy and chocolate products made with 100% cane sugar, evaporated cane juice or 28 organic sugar, to avoid GM beet sugar.”). CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 8  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.10 Page 10 of 50 1 PepsiCo has recently acquired the natural food company, Be & Cheery, for $705 2 million. Additionally, the Odwalla brand has flourished and expanded significantly 3 since its purchase by the Coca-Cola Company in 2001 for $181 million. 4 22. Indeed, Defendant has acknowledged that, “We listen to moms and 5 dads, and they’ve told us they want a non-G.M.O. option;” that “We want to make 6 sure we meet the desires of parents;” and that “Over one-third of [Similac] 7 consumers say [non-GMO infant formula] would appeal to them and given them 8 peace of mind.”8 9 C. Consumer’s Understanding of GMOs and Non-GMO Claims 10 23. While the abbreviated term “GMO” may generally refer to genetically 11 modified organisms, when used in food marketing and labeling, terms like “non- 12 GMO” and “GMO free” (which are reasonably understood by consumers to be 13 synonymous)9 have a broader meaning to consumers in that they convey food 14 products that do not contain and are not sourced or derived from genetically 15 engineered foods and methods, such as genetically engineered corn that ends up in 16 corn syrup and beef from a cow that was raised on a diet of genetically engineered or 17 modified food. Consumers have this understanding because of educational efforts by 18 8 Stephanie Strom, “Similac Advance Infant Formula to Be Offered G.M.O-Free,” The New York Times (May 25, 2015), https://www.nytimes.com/2015/05/26/business/similac-advance-infant- 19 formula-to-be-offered-gmo-free.html (last accessed Mar. 9, 2022). 9 20 In November 2015, the Food and Drug Administration (“FDA”) issued guidelines on the labeling of foods derived from genetically engineered plants and grouped the terms “GMO free,” GE free,” 21 “does not contain GMOs,” “non-GMO” “and similar claims” together. U.S. Food and Drug Administration, Guidance for Industry: Voluntary Labeling Indicating Whether Foods Have or 22 Have Not Been Derived from Genetically Engineered Plants (Mar. 2019), available at http://www.fda.gov/food/guidanceregulation/guidancedocumentsregulatoryinformation/ucm05909 23 8.htm#references (emphasis in original). The FDA also warned that the term “free” that is associated with these similar claims “conveys zero or total absence” of ingredients derived through 24 biotechnology and that these types of claims are “problematic” due to the challenges of substantiating such claims. Id. Thus, the FDA took care to appropriately group these commonly 25 used “non-GMO” related labeling terms in the same fashion consumers do, demonstrating that “non-GMO,” “does not contain GMOs,” and “GMO free” have an identical and synonymous 26 meaning to consumers. The FDA also points out that the while the “O” in the acronym GMO generally refers to the word “organism” because an entire organism is generally not contained in a 27 food (microorganisms in the dairy product yogurt being a cited exception), GMO is generally “read as meaning that the food was not derived from a genetically modified organism, such as a plant that 28 has been genetically engineered.” Id. (emphasis in original). CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 9  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.11 Page 11 of 50 1 “non-GMO” consumer information sources and certification agencies as well as 2 government authorities. The successful results of their efforts to develop a consumer 3 understanding of “non-GMO” and related terms in this manner are demonstrated by 4 market research surveys as discussed below. 5 24. The Non-GMO Project, for example, serves as one of the leading 6 educational providers for consumers given its unique status as North America’s 7 “only third-party verification and labeling for non-GMO food and products.” In 8 response to increased use of GMOs, the Non-GMO Project was formed in the early 9 2000s with the goal of “creating a standardized meaning of non-GMO for the North 10 American food industry.” Because of the Non-GMO Project’s work with companies 11 and food producers, through its Independent Verification Program, its Non-GMO 12 Project Verified seal is now found on over 50,000 food products and with 3,000 13 participating brands.10 Further, it makes significant educational outreach efforts 14 through its Non-GMO Project and LivingNonGMO.org websites. Combined, these 15 websites are host to over 200 million visits a year. Consumers thus readily and 16 understandably associate the terms “GMO”, “non-GMO,” and similar marketing 17 claims, consistently with definitions set by the Non-GMO Project. 18 25. Accordingly, consumers understand that any product or ingredient that 19 is contaminated by or with GMOs is not “non-GMO.” And, the Non-GMO Project 20 specifically extends its definition of “Non-GMO or No-GM” to any “plant, animal, 21 or other organism whose genetic structure has not been altered by gene splicing” and 22 to “a process or product that does not employ GM processes or inputs.”11 Per the 23 consumers’ leading industry source, the Non-GMO Project states that “animal feed 24 commonly contains High-Risk Inputs” in the form of genetically modified or 25 10 See The Non-GMO Project, Verification FAQs, https://www.nongmoproject.org/product- 26 verification/verification-faqs/ (last accessed Mar. 9, 2022). 11 27 The Non-GMO Project, Non-GMO Project Standard (Dec. 30, 2020), at 24, available at https://www.nongmoproject.org/wp-content/uploads/Non-GMO-Project-Standard-Version-16.pdf 28 (last accessed Mar. 9, 2022). CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 10  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.12 Page 12 of 50 1 engineered feed. As a result, animal food products (such as meat, poultry, and dairy) 2 are included on the Non-GMO Project’s list of High-Risk ingredients. For animal 3 products to be properly labeled as “non-GMO,” they must meet a number of 4 stringent requirements, including that the animals and poultry be fed seed that is less 5 than 5% GMO for various periods of the animal’s life (including the entire life for 6 meat animals other than poultry). Other GMO awareness campaigns similarly advise 7 consumers that to avoid GMOs they should avoid “meat, eggs, and dairy products 8 that have eaten GMO feed” furthering the consumer understanding that “non-GMO” 9 and related marketing, labeling[,] and advertising claims indicate to consumers that 10 the animal products were not raised on genetically modified feed.12 11 26. The federal government has also taken steps to adopt standards that 12 assist companies and consumers with understanding that “non-GMO” labeling means 13 that animal products are not raised on GMO derived feed. For example, in mid- 14 2013, the U.S. Department of Agricultures’ Food Safety and Inspection Service, 15 tasked with regulating the safety and proper labeling of meat, poultry, and egg 16 products, approved the Non-GMO Project Verified label claim for meat and liquid 17 egg products.13 These government efforts are intended to inform consumers that the 18 animal was not raised on a diet that consists of genetically engineered ingredients, 19 like corn, soy, and alfalfa. Accordingly, consumers understandably associate 20 advertising or labeling with the terms “non-GMO” or “GMO free” with products 21 whose ingredients have not been tainted by GMOs or sourced from animals fed with 22 GMOs. 23 27. Market research also supports the fact that consumers understand and 24 expect that advertisements and labeling of “non-GMO,” “GMO free,” or related 25 12 GMO Awareness, Overview, https://gmo-awareness.com/avoid-list/overview/ (last accessed Mar. 11, 2022). 26 13 See Food Liability Law, USDA Approves Non-GMO Label Claim for Meat and Egg Products 27 (Jul. 11, 2013), http://www.foodliabilitylaw.com/2013/07/articles/legislation-and-regulation/food- labeling/usda-approves-non-gmo-label-claim-for-meat-and-egg-products/ (last accessed Mar. 9, 28 2022). CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 11  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.13 Page 13 of 50 1 claims have similar meanings and would not apply to foods sourced from animals 2 fed with a GMO or a genetically engineered diet. For example, a poll of Ohio voters 3 by Public Policy Polling in December 2015 indicated that 76% of consumers would 4 “[e]xpect that a dairy product labeled as “non-GMO” was made using milk from 5 cows that had not been fed any genetically modified feed.”14 Only 11% of 6 respondents would not expect such a product to come from cows fed only with non- 7 GMO feed.15 8 28. As these poll results indicate, “consumer awareness of GMOs is almost 9 universal at 97%.”16 Consumers reasonably understand food advertised or labeled as 10 “non-GMO,” “GMO free,” “does not contain GMOs,” or other similar claims only 11 apply to food that (1) does not contain GMOs and is not sourced from, or derived 12 from any GMOs; and (2) does not contain animal products such as meat, poultry, 13 pork and dairy that have a diet of GMO feed, GMO contaminated feed and/or 14 genetically modified or engineered feed. Consumers also understand that the term 15 “food” applies broadly to food and drink, which is also how the FDA defines it. 21 16 U.S.C. § 321(f)(1). 17 D. Consumers Perceive GMOs As Negative And Unhealthy 18 29. Today, genetically modified crops are used in biological and medical 19 research, production of pharmaceutical drugs, experimental medicine, and 20 agriculture. Such crops are engineered to, among other things, resist certain pests, 21 diseases, or environmental conditions, reduce spoilage, increase size and yield, taste 22 and look better, and resist chemical treatments. In the United States, 94% of the 23 14 24 See The Mellman Group, “Nearly All Voters Continue to Want GMO Foods Labeled,” (Nov. 23, 2015) http://4bgr3aepis44c9bxt1ulxsyq.wpengine.netdna-cdn.com/wp- 25 content/uploads/2015/12/15memn20-JLI-d6.pdf (last accessed Mar. 9, 2022). 15 See also Center for Food Safety, U.S. Polls On GE Food Labeling (listing other relevant surveys 26 regard GMO food labeling and consumer preferences). 16 27 “Consumer Awareness of GMOs Continues to Soar,” Non-GMO Project (Aug. 7, 2018), https://www.nongmoproject.org/blog/consumer-awareness-of-gmos-continues-to-soar/ (last 28 accessed Mar. 9, 2022). CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 12  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.14 Page 14 of 50 1 planted area of soybeans, 95% of cotton, and 92% of corn are genetically modified 2 varieties.17 3 30. Since 1996, farmers in animal agriculture (including poultry) have 4 optimized GMOs by feeding genetically modified grains (corn) and oilseeds 5 (soybean) to their flocks and herds.18 Because more than 90% of the corn and 6 soybeans in the United States are raised from genetically modified seeds, almost all 7 corn and soybean used in conventional livestock and poultry feed is genetically 8 modified. In addition, other genetically modified crops such as cotton, canola, sugar 9 beets, and alfalfa are commonly used in animal feed.19 Consequently, most meat and 10 dairy products are contaminated with GMOs due to the feed consumed by livestock 11 and poultry and cannot be labeled as “non-GMO” without deceiving consumers. 12 Because the safety or health impact of food and other goods derived from genetically 13 modified crops has been and continues to be hotly debated,20 it is no surprise that 14 according to a Pew Research Center survey, only 37% of the general public believes 15 that “it is generally safe to eat genetically modified (GM) foods.”21 16 17 18 17 19 United States Department of Agriculture Economic Research Service, Adoption of Genetically Engineered Crops in the U.S.(July 9, 2015), http://www.ers.usda.gov/data-products/adoption-of- 20 genetically-engineered-crops-in-the-us.aspx (last accessed Mar. 9, 2022). 18 See National Chicken Council, Genetically Modified Organism (GMO) Use in the Chicken 21 Industry (July 5, 2013), http://www.nationalchickencouncil.org/genetically-modified-organism- gmo-use-in-the-chicken-industry/ (Mar. 9, 2022). 22 19 See GMO Inside Blog, “How Pervasive are GMOs in Animal Feed?” Green America (July 16, 23 2013), http://gmoinside.org/gmos-in-animal-feed/ (Mar. 9, 2022). 20 Compare, e.g., European Commission, A Decade of EU-funded GMO Research (2001-2010), 24 https://op.europa.eu/en/publication-detail/-/publication/d1be9ff9-f3fa-4f3c-86a5-beb0882e0e65 (last accessed Mar. 9, 2022), with Non GMO Project, GMO Facts, 25 http://www.nongmoproject.org/learn-more/ (last accessed Mar. 9, 2022) (“Meanwhile, a growing body of evidence connects GMOs with health problems, environmental damage and violation of 26 farmers’ and consumers’ rights.”). 21 27 Pew Research Center, Public and Scientists’ Views on Science and Society (Jan. 29, 2015), https://www.pewresearch.org/science/2015/01/29/public-and-scientists-views-on-science-and- 28 society/ (last visited Mar. 9, 2022). CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 13  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.15 Page 15 of 50 1 31. While the potential environmental and health impact of GMOs has been 2 the subject of much scrutiny and debate within the food and science industries,22 3 Defendant and other businesses know customers attach an unhealthy, negative 4 perception towards them.23 Defendant’s Non-GMO Claims are specifically intended 5 to manipulate consumers into avoiding GMOs, including animal food products raised 6 on GMO feed, because of health and environmental concerns. 7 32. As a result of GMO controversy and consumer concerns, companies 8 have created an $11 billion (and fast growing) market for non-GMO products and 9 consumers are willing to pay the higher costs associated with non-GMO products 10 due to the negative perception of genetically modified foods and because GMO-free 11 ingredients are often more expensive.24 And, there is no dispute that GMO labeling 12 is a material and important issue to consumers. In a November 2015 poll, 89% of 13 likely voters in 2016 would support labeling of GMO foods. And, 77% percent of 14 those “strongly favored” such a requirement. These poll results clearly show that 15 Americans want to know if the food they are purchasing are non-GMO. Thus, there 16 is no dispute that GMO labeling is a material and important issue to consumers.25 17 22 The Institute for Responsible Technology—“a world leader in educating the public and change- makers about the health risks and environmental dangers of GMOs and associated pesticides”—for 18 example, outlines several health risks associated with the use of GMOs, including the growth of pre-cancerous cells, stomach lesions, change changes in blood cells, and livers and kidneys in the 19 animals studied. The Institute identified several other issues such as skin and intestinal reactions. See “65 Health Risks of GM Foods,” https://www.responsibletechnology.org/gmo-dangers/65- 20 health-risks-of-gm-foods/ (last accessed Mar. 28, 2022). 23 See, e.g., Stephanie Strom, “Similac Advance Infant Formula to Be Offered in G.M.O-Free,” 21 The New York Times (May 25, 2015), https://www.nytimes.com/2015/05/26/business/similac- advance-infant-formula-to-be-offered-gmo-free.html (last accessed Mar. 11, 2022) (“Abbott will 22 join a growing number of companies offering products without genetically modified organisms. Consumer demand for such products has been growing, despite a concerted and expensive effort by 23 trade groups representing major food manufacturers and the biotech industry to convince them that genetically altered ingredients are not harmful to human health.”). 24 24 See Gluten Free Living, GMO Free Comes at a Price, Gluten-Free Living (Nov. 25, 2014), 25 http://www.glutenfreeliving.com/gluten-free-lifestyle/non-gmo/gmo-free-comes-at-price/ (last accessed Mar. 9, 2022); The Mellman Group, Inc., Voters Want GMO Food Labels Printed On 26 Packaging, http://4bgr3aepis44c9bxt1ulxsyq.wpengine.netdna-cdn.com/wp- content/uploads/2015/12/15memn20-JLI-d6.pdf (last accessed Mar. 9, 2022). 27 25 The Mellman Group, Inc., Voters Want GMO Food Labels Printed On Packaging, http://4bgr3aepis44c9bxt1ulxsyq.wpengine.netdna-cdn.com/wp- 28 content/uploads/2015/12/15memn20-JLI-d6.pdf (last accessed Mar. 9, 2022). CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 14  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.16 Page 16 of 50 1 E. Defendant’s False, Misleading, And Deceptive Non-GMO Claims 2 33. In 2018, sales of baby food and infant formula amounted to $6.9 billion, 3 a level that has more or less remained unchanged over the past three years.26 4 Defendant has been repeatedly identified as a “major player[]” in that market.27 In 5 fact, Defendant reported to shareholders that “the nutritional business experienced 6 above-market growth . . . driven by market leading brands Similac and Pedialyte.”28 7 Provided the significance of this segment to Defendant’s portfolio, Defendant has an 8 enormous incentive to increase its market share in this area. 9 34. According to one study, behind the brand name, the presence of an 10 “Organic / Non-GMO” label on infant formulas and toddler milk represent the 11 second foremost factor that consumers consider when making their purchases.29 12 Therefore, product offerings that include the Non-GMO label on baby foods and 13 infant formulas provides a significant avenue for growth. 14 35. Recognizing this reality, Defendant expanded its “Non-GMO” product 15 lines in 2015, noting that “We listen to moms and dads, and they’ve told us they 16 want a non-G.M.O. option;” that “We want to make sure we meet the desires of 17 parents;” and that “Over one-third of [Similac] consumers say [non-GMO infant 18 formula] would appeal to them and given them peace of mind.”30 In line with this 19 26 Business Wire, “Baby Food Market in the United States, 2019 Report,” (May 21, 2019), https://www.businesswire.com/news/home/20190531005441/en/Baby-Food-Market-in-the-United- 20 States-2019-Report---ResearchAndMarkets.com (last accessed Mar. 9, 2022). 27 See, e.g., PR Newswire, “Global $74.4 Bn Baby Food and Infant Formula Markets, 2011-2018 & 21 2019-2024 Featuring Abbott Nutrition, Nestle, Danone, Mead Johnson & Kraft Heinz,” (Apr. 30, 2019) (https://www.prnewswire.com/news-releases/global-74-4-bn-baby-food-and-infant-formula- 22 markets-2011-2018--2019-2024-featuring-abbott-nutrition-nestle-danone-mead-johnson--kraft- heinz-300840759.html) (last accessed Mar. 11, 2022). 23 28 Abbott Laboratories, Form 10-K Annual Report (Feb. 22, 2019), 24 https://sec.report/Document/0001047469-19-000624/ (last accessed Mar. 11, 2022). 29 Tassneem Rajeh, “Provision of Added Value Infant Formula And Toddler Milk To Infants and 25 Toddlers,”(2020), https://www.proquest.com/openview/4ca50d80afac71637c9c008cdd8daf3c/1?pq- 26 origsite=gscholar&cbl=18750&diss=y (last accessed Mar. 9, 2022). 30 27 Stephanie Strom, “Similac Advance Infant Formula to Be Offered G.M.O-Free,” The New York Times (May 25, 2015), https://www.nytimes.com/2015/05/26/business/similac-advance-infant- 28 formula-to-be-offered-gmo-free.html (last accessed Mar. 9, 2022). CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 15  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.17 Page 17 of 50 1 sentiment, Defendant states directly on its website that “We know that now, more 2 than ever, moms want a fresh approach to infant nutrition. Whether you’re looking 3 for a formula that has organic ingredients, no artificial hormones, or no GMOs, 4 Similac offers an option that’s right for you and your little one.”31 5 36. And Defendant’s statements extend to the Product packaging, where, 6 instead of the Non-GMO Project’s seal, Defendant prominently includes its own seal 7 or logo, which is substantially identical to the image set out below: 8 9 10 11 12 13 37. In addition, Defendant has engaged in a multi-media mass marketing 14 and advertising campaign to inform consumers that it was going “non-GMO” since 15 approximately March 2015, through various methods including claims on its 16 website, social media, in-store signage at the brick-and-mortar retail locations where 17 its Products are sold, and—most importantly—prominent Non-GMO claims affixed 18 to the labeling and/or packaging of its Products. 19 38. These efforts, including Defendant’s prominent use of its own Non- 20 GMO label affixed to Product packaging, are intended to further Defendant’s desire 21 to appear as supporting healthy food for infants and toddlers, thereby increasing its 22 share of the booming baby foods and infant formulas market and, correspondingly, 23 the revenues it derives from that market. 24 39. However, rather than manufacture infant formulas that are “Non-GMO” 25 as understood by reasonable consumers, Defendant has manufactured its own 26 27 31 Similac, “Organic and Non-GMO Baby Formula,” https://www.similac.com/baby- 28 feeding/formula-guide/organic-non-gmo.html (last accessed Mar. 9, 2022). CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 16  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.18 Page 18 of 50 1 approach, and has otherwise sought to deceive consumers by passing the buck to its 2 suppliers.32 3 F. Defendant’s Products Contain Genetically Modified Ingredients 4 Despite Being Marketed As “Non-GMO” 5 40. All of the Similac Products at issue are substantially similar. All 6 varieties contain Defendant’s “Non-GMO” Claim featured prominently on the front 7 of the Product’s labeling and/or packaging. However, Defendant’s Non-GMO 8 claims are deceptive and misleading to reasonable consumers because: (1) 9 Defendant’s Products are in fact loaded with ingredients derived from GM-crops; (2) 10 Defendant’s Products also contain protein and/or dairy sources derived from cows 11 raised on GMO feed; and (3) Defendant’s Non-GMO seal may be easily confused 12 with a third-party Non-GMO verification. Even worse, none of the Product labels 13 expressly state that the Products contain GMOs, and Defendant does not adequately 14 disclose any of this information to consumers on its Product labels or on its website. 15 (a) Defendant’s Products Contain Animal Byproducts That Are Not 16 Non-GMO: As set forth above, consumers understand the terms “non-GMO,” 17 “GMO free,” and similar representations, to apply only to ingredients that do not 18 come from animals fed with genetically engineered or GMO derived feed. 19 Defendant deceptively advertises, labels, and markets its Products as “Non-GMO” or 20 “GMO free” even though each of the Products at issue in this case contains whey- 21 based protein sources (among other dairy-based ingredients) – including whey 22 protein isolate, whey protein concentrate, cultured whey protein concentrate, etc. – 23 derived from animals (specifically, cows) that are fed with a genetically engineered 24 or GMO-derived feed. Additionally, many Products also contain other dairy-based 25 26 32 Similac, “Organic and Non-GMO Baby Formula,” https://www.similac.com/baby- 27 feeding/formula-guide/organic-non- gmo.html#:~:text=What%20is%20non%2DGMO%20formula,%C2%AE%20Organic%20with%20 28 A2%20Milk (last accessed Mar. 11, 2022). CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 17  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.19 Page 19 of 50 1 ingredients derived from cows raised on GMO feed, such as milk, nonfat milk, and 2 lactose. 3 (b) Defendant’s Products Contain Ingredients Derived From GM- 4 Crops And Therefore Are Not Non-GMO: As detailed below, Defendant’s Products 5 contain numerous ingredients derived from GM crops. For instance, each of 6 Defendant’s Products contains soy protein isolate, an ingredient derived from GM 7 soybean. Most of Defendant’s Products also contain ingredients derived from GM 8 soybean and sugar beets. 9 41. Defendant’s Products contain, without limitation, one or more of the 10 following ingredients: 11  Assorted Dairy Ingredients and Products (including lactose, 12 nonfat dry milk, cultured whey proteins, whole milk, etc.). These ingredients are 13 specifically identified as genetically modified ingredients by the Institute for 14 Responsible Technology.33 The United States currently devotes nearly 75 million 15 acres of land to the production of soybeans, most of which are fed to animals. 16 Similarly, much of the nation’s 80 to 90 million acres of corn is fed to livestock. 17 Since 85 to 95% of these crops are GMO, it is safe to assume – unless provided 18 proper certification – that “normal” dairy products contain GMO ingredients in one 19 form or another. Thus, unless a product is USDA Certified Organic or has a Project 20 Non-GMO Verified seal, “ALL dairy products can be assumed to come from 21 commercial/industrial dairy sources (CAFO - concentrated animal feeding 22 operations) whose cows are typically fed GM-corn, cottonseed, alfalfa[,] or soybean 23 feed.”34 24 33 The Institute for Responsible Technology, “Non-GMO Shopping Guide,” 25 https://www.pilgrimsmarket.com/pdf/Non-GMO-Shopping-Guide.pdf at 14 (last accessed Mar. 28, 2022). 34 26 See Chef Alain Braux, GMO 101, A Practical Guide: Potential Sources of Genetically Engineered Ingredients in Food, at 184, available at 27 https://play.google.com/books/reader?id=YeHXBQAAQBAJ&pg=GBS.PA2&hl=en. As Chef Alain Braux, award-winning executive chef and multiple award-winning food and health author, 28 further explained: CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 18  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.20 Page 20 of 50 1  Citric Acid. This ingredient is included on The Institute for 2 Responsible Technology’s list of GMO ingredients.35 Citric acid was the first 3 additive that was produced on a large scale biotechnically. Most citric acid found in 4 food is a commodity chemical produced by feeding simple carbohydrates to 5 Aspergillus niger mold and then processing the resulting fermented compound. 6 Citric acid-producing microorganisms grow on culture media that usually contain 7 molasses (which is derived from sugar beet, a GM crop) and/or glucose (which 8 usually comes from corn, another GM crop). Calcium hydroxide and sulfuric acid 9 are often used in processing.36 10  Inositol. This ingredient is included on the Institute for Responsible 11 Technology’s list of GMO ingredients.37 Commercial production of inositol follows 12 a two-step process in which (1) phytic acid is extracted from plants, such as corn or 13 rice, and (2) one of several chemical processes is used to transform the phytic acid 14 into inositol. The phytic acid is extracted by soaking the vegetable material in a 15 dilute acid solution, such as hydrochloric acid or sulfuric acid, and then using 16 filtration or another mechanical separation technique followed by precipitation using 17 an alkali reagent and additional mechanical separation. The extracted phytin is then 18 converted to inositol as the phytin is hydrolyzed with a strong sulfuric acid solution 19 The United States currently devotes nearly 75 million acres of land to the production of soybeans, most of which are fed to animals. Similarly, much of the nation’s 80 to 90 20 million acres of corn is fed to livestock. Since 85 to 95% of these crops are GMO, it is safe to assume – unless provided proper certification – that “normal” dairy products contain 21 GMO ingredients in one form or another. 22 In the United States more than 99% of farm animals come from factory farming. Conventional cattle grown in [concentrated animal feeding operations (‘CAFOs’)] is fed 23 what is called concentrated feed. It can mean any number of things, but the base food is always a grain slurry, typically of GMO corn and corn byproducts, GMO soy and soy hulls, 24 and other grains and cereals. CAFO nutritionists sometimes also include GM cotton byproducts and GM sugar beets in their cows’ diet. 25 Id. (emphasis added). 35 26 See supra n. 33. 36 See Chef Alain Braux, GMO 101, A Practical Guide, 103 (2014); see also New Hope Network, 27 Is citric acid natural (Dec. 19, 2004), available at https://www.newhope.com/ingredients- general/is-citric-acid-natural (last accessed Mar. 11, 2022). 28 37 See supra n. 33. CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 19  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.21 Page 21 of 50 1 and then steamed pressured. The result is a synthetic that is industrially 2 manufactured. 3  Soluble Corn Fiber. This ingredient is included on the Institute 4 for Responsible Technology’s list of GMO ingredients.38 Soluble corn fiber, also 5 referred to as resistant maltodextrin, is a non-digestible fiber made from GMO corn 6 syrup, which is chemically processed. It is produced using enzymatic hydrolysis, a 7 process that involves breaking the chemical bonds of a molecule using enzymes.39 8 During this process, it is then heated, hydrolyzed, and filtered into a white tasteless 9 powder. Commercially, soluble corn fiber used in food products to thicken 10 processed foods like protein bars, cereals, baked goods, dairy products, and salad 11 dressings, and as a sweetener in place of sugar. 12  Soy Lecithin. This ingredient is included on the Institute for 13 Responsible Technology’s list of GMO ingredients.40 Soy lecithin, or lecithin, is a 14 processed by-product of the production of soybean oil, which comes from GM 15 soybean. It is derived from the sludge left after crude oil undergoes a degumming 16 process. More specifically, to produce soybean oil, soybeans are ground into small 17 fragments and then flakes. The flakes are then combined with hexane or another 18 similar solvent. The resulting product is subjected to heat to remove the solvents. 19 Clarified soybean oil is then produced when the gum and water are mechanically 20 separated from the crude soybean oil. The waste sludge or gum left remaining is 21 then dried to produce lecithin. 22  Soy Protein. This ingredient is included on the Institute for 23 Responsible Technology’s list of GMO ingredients.41 Soy proteins derive from GM 24 38 See supra n. 33. 39 25 See Healthline, Is Soluble Corn Fiber Good for You? Benefits and Side Effects (Mar. 18, 2021), https://www.healthline.com/nutrition/soluble-corn-fiber (last accessed Mar. 11, 2022); see also Dr. 26 David Friedman’s Health Blog, Are You Eating Soluble Corn Fiber?, https://doctordavidfriedman.com/blog/are-you-eating-soluble-corn-fiber (last accessed Mar. 11, 27 2022). 40 See supra n. 33. 28 41 See supra n. 33. CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 20  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.22 Page 22 of 50 1 soybeans and are mainly used as ingredients in formulated foods. It is made from 2 soybean meal that has been dehulled and defatted. Dehulled and defatted soybeans 3 are processed into three kinds of high protein commercial products: soy flour, soy 4 protein concentrate (SPC), and soy protein isolate (SPI).42 As shown below, each of 5 Defendant’s Products lists one or both of the latter two forms of GMO soy protein as 6 a primary ingredient. 7  Soy Protein Isolate (SPI). This ingredient is included on the 8 Institute for Responsible Technology’s list of GMO ingredients.43 SPI is protein 9 from GM soybeans that has been isolated from all the other ingredients in soy via 10 chemical engineering. To do this, the soybeans are first washed with an acid and 11 then neutralized in an alkaline solution. During this process, the soybean is 12 chemically modified, processed, and filled with pesticides. Thus, SPIs “are 13 genetically modified foods.”44 The extraction process often leaves behind residue 14 from chemicals and metals like hexane or aluminum, and it also strips the powder of 15 the zinc and iron typically present in soybean products. At the end of the entire SPI- 16 making process, what remains is a dry powder that is about 90-95% protein and 17 nearly carbohydrate- and fat-free. Additionally, SPI also contains phytates, also 18 called anti-nutrients, which reduce the body’s ability to absorb iron and zinc. SPI 19 has been used since 1959 in foods for its functional properties. It is often used in 20 products like protein bars, flour, cereal, and meat and dairy alternatives.45 21 42 22 See E.W. Lucas, et al., Soy Protein Products: Processing And Use, 125 J. Nutr (1995), 573S, at https://pubmed.ncbi.nlm.nih.gov/7884536/; see also G N Bookwalter, Soy Protein Utilization In 23 Food Systems, 105 Adv Exp Med Biol (1978), 749, at https://pubmed.ncbi.nlm.nih.gov/569429/ (last accessed Mar. 11, 2022). 24 43 See supra n. 33. 44 Eat This, Not That!, What is Soy Protein Isolate and Is It Bad For You? (Jan. 4, 2020), 25 https://www.eatthis.com/soy-protein-isolate/ (last accessed Mar. 11, 2022) (“If you have an inflammatory condition or otherwise opt to stay away from GMO’s, you probably want to steer 26 clear of SPI.”). 45 27 Id.; see also Women’s Health, “Soy Protein Isolate” Is In So. Many. Things. But Is It Healthy? (May 28, 2019), https://www.womenshealthmag.com/food/a27559289/soy-isolate-protein/ (last 28 accessed Mar. 11, 2022). CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 21  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.23 Page 23 of 50 1  Soy Oil. This ingredient is included on the Institute for Responsible 2 Technology’s list of GMO ingredients.46 Soy or soybean oil is made by extracting 3 oil from whole soybeans. This process involves dehulling and crushing soybeans, 4 adjusting the soybeans for moisture content, and heating the soybeans to between 5 140-190 ºF. The soybeans are then rolled into flakes which are then put in a 6 percolation extractor and immerged with a solvent, normally hexane. The hexane is 7 then separate from the soybean oil in evaporators. The evaporated hexane is 8 recovered and returned to the extraction process. 9  Whey Protein. This ingredient is included on the Institute for 10 Responsible Technology’s list of GMO ingredients.47 Whey protein is made with the 11 protein isolated from the liquid by-product of cheese. Commercially produced whey 12 protein from cow’s milk typically comes in four major forms: whey protein isolate 13 (WPI), whey protein concentrate (WPC), whey protein hydrolysate (WPH), and 14 native whey protein. WPCs are 29–89 percent protein by weight. WPIs, which are 15 further processed to remove all the fat and lactose, are usually at least 90 percent 16 protein.48 Accordingly, Defendant’s Non-GMO Claims about its Products are 17 deceptive and misleading to reasonable consumers. 18 42. For example, one of Defendant’s Products, “Similac Pro-Advance 19 Infant Formula with Iron Milk-Based Powder,” as purchased by Plaintiff, 20 prominently represents that it is “Non-GMO.” However, as shown below, the 21 Product contains several genetically modified ingredients, including nonfat milk, 22 lactose, whey protein concentrate, soy oil, soy lecithin, and mixed tocopherols: 23 24 25 46 26 See supra n. 33. 47 See supra n. 33. 48 27 WPI goes through the same initial processing as WPC; however, to isolate the protein to higher concentrations than typical WPC, WPI is sent through additional filtering loops, which further 28 removes lactose, fat, and undesired minerals. CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 22  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.24 Page 24 of 50 1 2 3 4 5 6 7 8 9 10 11 12 43. Likewise, Defendant’s Similac “Pro-Advance Infant Formula with Iron 13 Ready to Feed” prominently represents that it is a “NON-GMO” Product. However, 14 the Product contains several genetically modified ingredients, including nonfat milk, 15 lactose, whey protein concentrate, soy oil, soy lecithin, inositol, and mixed 16 tocopherols: 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 23  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.25 Page 25 of 50 1 44. Similarly, Defendant’s “Similac Pro-Sensitive Infant Formula with Iron 2 Milk-Based Formula” also prominently represents that it is “Non-GMO.” However, 3 the Product contains several genetically modified ingredients, including corn syrup, 4 milk protein isolate, soy oil, soy lecithin, inositol, and mixed tocopherols: 5 6 7 8 9 10 11 12 13 14 15 16 45. Defendant’s “Similac Pro-Sensitive Infant Formula with Iron Milk- 17 Based Ready to Feed” prominently represents that it is “Non-GMO.” However, the 18 Product contains several genetically modified ingredients, including corn 19 maltodextrin, milk protein isolate, soy oil, soy lecithin, and inositol: 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 24  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.26 Page 26 of 50 1 2 3 4 5 6 7 46. Likewise, Defendant’s Similac Pro-Total Comfort Infant Formula with 8 Iron Milk-Based Powder contains the prominent “Non-GMO” representation directly 9 on the front of the product packaging. However, the Product contains several 10 genetically modified ingredients, including corn maltodextrin, whey protein 11 hydrolysate, soy oil, and mixed tocopherols: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 25  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.27 Page 27 of 50 1 47. Similac Pro-Total Comfort Infant Formula with Iron Milk-Based Ready 2 to Feed contains the prominent “Non-GMO” representation directly on the front of 3 the Product packaging. However, the Product contains several genetically modified 4 ingredients, including corn syrup solids, whey protein hydrolysate, soi oil, soy 5 lecithin, and inositol: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 48. Defendant’s “Go & Grow by Similac Milk-Based Powder” also 20 prominently features a Non-GMO label directly on the front of the packaging. 21 However, the Product contains several genetically modified ingredients, including 22 nonfat milk, lactose, soy oil, soy lecithin, inositol, and mixed tocopherols: 23 24 25 26 27 28 CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 26  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.28 Page 28 of 50 1 2 3 4 5 6 7 8 9 10 49. Likewise, Defendant’s “Go & Grow by Similac Sensitive Milk-Based 11 Powder” prominently features a Non-GMO representation directly on the front of the 12 Product packaging. However, the Product contains several genetically modified 13 ingredients, including corn syrup, milk protein isolate, soy oil, and mixed 14 tocopherols: 15 16 17 18 19 20 21 22 23 24 25 50. Similarly, Defendant’s “Similac for Supplementation Infant Formula 26 with Iron” bottles are prominently labeled “Non-GMO” on the front of the 27 packaging. But this formula contains several genetically modified ingredients, 28 including nonfat milk, lactose, soy oil, and whey protein concentrate: CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 27  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.29 Page 29 of 50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 51. Defendant’s “Similac for Supplementation Powder Milk-Based Infant 24 Formula” is also prominently labeled as “Non-GMO” directly on the front of the 25 Product packaging. However, the Product contains multiple genetically modified 26 ingredients, including nonfat milk, lactose, whey protein concentrate, soy oil, soy 27 lecithin, and mixed tocopherols: 28 CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 28  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.30 Page 30 of 50 1 52. The presence of genetically modified ingredients in the Products renders 2 Defendant’s description of “Non-GMO” false and misleading under an objective 3 reasonable consumer standard. 4 RULE 9(B) ALLEGATIONS 5 53. Federal Rules of Civil Procedure, Rule 9(b) provides that “[i]n alleging 6 fraud or mistake, a party must state with particularity the circumstances constituting 7 fraud or mistake.” Fed. R. Civ. P. 9(b). To the extent necessary, as detailed in the 8 paragraphs above and below, Plaintiff has satisfied the requirements of Rule 9(b) by 9 establishing the following elements with sufficient particularity: 10 54. WHO: Defendant made material misrepresentations and omissions of 11 fact in the labeling, packaging, and marketing of the Products. 12 55. WHAT: Defendant made material misrepresentations and omissions of 13 fact by using the terms “Non-GMO” in the labeling, packaging, and marketing of the 14 Products. Defendant made these claims with respect to the Products even though the 15 Products did not meet the requirements to make such claims. Defendant’s 16 misrepresentations and omissions were material because a reasonable consumer 17 would not have purchased or paid as much for the Products if he or she knew that 18 they contained false representations. 19 56. WHEN: Defendant made the material misrepresentations and 20 omissions detailed herein continuously throughout the Class Period. 21 57. WHERE: Defendant’s material misrepresentations and omissions were 22 made, inter alia, on the labeling and packaging of the Products, on Defendant’s 23 website at https://www.similac.com/, on the websites of authorized third-party 24 retailers of the Products, on in-store signage at brick-and-mortar locations of 25 authorized third-party retailers of the Products, and through Defendant’s various 26 other advertisements. 27 28 CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 29  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.31 Page 31 of 50 1 58. HOW: Defendant made written misrepresentations and failed to 2 disclose material facts on the labeling and packaging of the Products and on its 3 website and other advertising. 4 59. WHY: Defendant engaged in the material misrepresentations and 5 omissions detailed herein for the express purpose of inducing Plaintiff and other 6 reasonable consumers to purchase and/or pay a premium for Products based on the 7 belief that they were “Non-GMO.” Defendant profited by selling the Products to 8 millions of unsuspecting consumes nationwide. 9 CLASS ALLEGATIONS 10 60. Class Definition. Plaintiff brings this action on behalf of a class of 11 similarly situated individuals, defined as all persons in the United States who, who, 12 within the applicable statute of limitations period, up to and including the date of 13 final judgment in this action, purchased any of the Products at issue (the “Class”). 14 (a) California Subclass. Plaintiff Rocio Lopez also seeks to 15 represent a subclass of all Class Members who, within the applicable statute of 16 limitations period, up to an including the date of final judgment in this action, 17 purchased any of the Products at issue in California (the “California Subclass”). 18 61. Excluded from the Class and the California Subclass are persons who 19 made such purchase for purpose of resale, Defendant and any entities in which 20 Defendant has a controlling interest, Defendant’s agents and employees, the judge to 21 whom this action is assigned, and members of the judge’s staff, and the judge’s 22 immediate family. 23 62. Plaintiff reserves the right to amend the definition of the Class and 24 Subclass if discovery or further investigation reveals that the Class or Subclass 25 should be expanded or otherwise modified. 26 63. Numerosity. Members of the Class and Subclass are so numerous that 27 their individual joinder herein is impracticable. On information and belief, members 28 of the Class and Subclass number in the millions. The precise number of Class CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 30  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.32 Page 32 of 50 1 Members and their identities are unknown to Plaintiff at this time but may be 2 determined through discovery. Class Members may be notified of the pendency of 3 this action by mail and/or publication through the distribution records of Defendant 4 and third-party retailers and vendors. 5 64. Commonality and Predominance. Common questions of law and fact 6 exist as to all Class Members and predominate over questions affecting only 7 individual Class Members. Common legal and factual questions include but are not 8 limited to: whether Defendant warranted the Products as “Non-GMO”; whether the 9 Products contain genetically modified organisms; whether Defendant breached these 10 warranties; and whether Defendant committed the statutory and common law 11 violations alleged against them herein by doing so. 12 65. Typicality. The claims of the named Plaintiff are typical of the claims 13 of the Class in that Plaintiff purchased one of Defendant’s Products in reliance on the 14 representations and warranties described above and suffered a loss as a result of that 15 purchase. 16 66. Adequacy. Plaintiff is an adequate representative of the Class and the 17 California Subclass because her interests do not conflict with the interests of the 18 Class and the California Subclass Members she seeks to represent, she has retained 19 competent counsel experienced in prosecuting class actions, and she intends to 20 prosecute this action vigorously. The interests of the Class and the California 21 Subclass Members will be fairly and adequately protected by Plaintiff and her 22 counsel. 23 67. Superiority. The class mechanism is superior to other available means 24 for the fair and efficient adjudication of the claims of Class Members. Each 25 individual Class member may lack the resources to undergo the burden and expense 26 of individual prosecution of the complex and extensive litigation necessary to 27 establish Defendant’s liability. Individualized litigation increases the delay and 28 expense to all parties and multiplies the burden on the judicial system presented by CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 31  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.33 Page 33 of 50 1 the complex legal and factual issues of this case. Individualized litigation also 2 presents a potential for inconsistent or contradictory judgments. In contrast, the class 3 action device presents far fewer management difficulties and provides the benefits of 4 single adjudication, economy of scale, and comprehensive supervision by a single 5 court on the issue of Defendant’s liability. Class treatment of the liability issues will 6 ensure that all claims and claimants are before this Court for consistent adjudication 7 of liability issues. 8 68. Defendant has acted or failed to act on grounds generally applicable to 9 the Class, thereby making appropriate final injunctive relief with respect to the Class 10 and Subclass as a whole. 11 69. Without a class action, Defendant will continue a course of action that 12 will result in further damages to Plaintiff and members of the Class and the 13 California Subclass and will likely retain the benefits of its wrongdoing. 14 70. Based on the foregoing allegations, Plaintiff’s claims for relief include 15 those set forth below. 16 CLAIMS FOR RELIEF 17 COUNT I Violations of California’s Unfair Competition Law (“UCL”), 18 California Business & Professions Code §§ 17200, et seq. 19 (On Behalf Of The California Subclass) 20 71. Plaintiff hereby incorporates by reference the allegations contained in 21 all preceding paragraphs of this complaint. 22 72. Plaintiff brings this claim individually and on behalf of the members of 23 the proposed California Subclass against Defendant. 24 73. Defendant is subject to California’s Unfair Competition Law, Cal. Bus. 25 & Prof. Code §§ 17200, et seq. The UCL provides, in pertinent part: “Unfair 26 competition shall mean and include unlawful, unfair or fraudulent business practices 27 and unfair, deceptive, untrue or misleading advertising[.]” 28 CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 32  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.34 Page 34 of 50 1 74. Defendant’s misrepresentations and other conduct, described herein, 2 violated the “unlawful” prong of the UCL by violating the CLRA as described 3 herein, the FAL as described herein, and Cal. Com. Code § 2607. 4 75. Defendant’s misrepresentations and other conduct, described herein, 5 violated the “unfair” prong of the UCL in that its conduct is substantially injurious to 6 consumers, offends public policy, and is immoral, unethical, oppressive, and 7 unscrupulous, as the gravity of the conduct outweighs any alleged benefits. 8 76. Defendant violated the “fraudulent” prong of the UCL by making 9 misrepresentations about the Products at issue that were untrue and misleading, as 10 described herein. 11 77. Plaintiff and the California Subclass lost money or property as a result 12 of Defendant’s UCL violations because: (a) they would not have purchased the 13 Products on the same terms if the true facts were known about the product; (b) they 14 paid a price premium for the Products due to Defendant’s promises and warranties; 15 and (c) the Products do not have the characteristics as promised by Defendant. 16 78. Accordingly, Plaintiff may lack an adequate remedy at law, if, for 17 instance, damages resulting from her purchase of the Product is determined to be an 18 amount less than the premium price of the Product. Without compensation for the 19 full premium price of the Product, Plaintiff would be left without the parity in 20 purchasing power to which she is entitled. Further, injunctive relief is necessary to 21 require Defendant to provide full and accurate disclosures regarding the Product so 22 that Plaintiff and Class members can reasonably rely on Defendant’s representations 23 as well as those of Defendant’s competitors who may then have an incentive to 24 follow Defendant’s deceptive practices, further misleading consumers. 25 79. Restitution and/or injunctive relief may also be more certain, prompt, 26 and efficient than other legal remedies requested herein. The return of the full 27 premium price, and an injunction requiring either (1) adequate disclosure that the 28 Product’s are not in fact Non-GMO; or (2) the removal of such representations, will CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 33  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.35 Page 35 of 50 1 ensure that Plaintiff is in the same place she would have been in had Defendant’s 2 wrongful conduct not occurred, i.e., in the position to make an informed decision 3 about the purchase of the Product absent misrepresentations with the full purchase 4 price at their disposal. 5 COUNT II Violation Of California’s False Advertising Law (“FAL”), 6 California Business & Professions Code §§ 17500, et seq. 7 (On Behalf Of The California Subclass) 8 80. Plaintiff hereby incorporates by reference the allegations contained in 9 all preceding paragraphs of this Complaint. 10 81. Plaintiff brings this claim individually and on behalf of the members of 11 the proposed California Subclass against Defendant. 12 82. California’s False Advertising Law, Cal. Bus. & Prof. Code §§ 17500, 13 et seq., makes it “unlawful for any person to make or disseminate or cause to be 14 made or disseminated before the public in this state, … in any advertising device … 15 or in any other manner or means whatever, including over the Internet, any 16 statement, concerning … personal property or services, professional or otherwise, or 17 performance or disposition thereof, which is untrue or misleading and which is 18 known, or which by the exercise of reasonable care should be known, to be untrue or 19 misleading.” 20 83. Defendant committed acts of false advertising, as defined by § 17500, 21 by misrepresenting that the Products are “Non-GMO” products, when in fact they are 22 not. 23 84. Defendant knew or should have known, through the exercise of 24 reasonable care, that its Non-GMO Claims about the Products were untrue and 25 misleading. 26 85. Defendant’s actions in violation of § 17500 were false and misleading 27 such that the general public is and was likely to be deceived. 28 CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 34  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.36 Page 36 of 50 1 86. Plaintiff and the California Subclass lost money or property as a result 2 of Defendant’s FAL violations because: (a) they would not have purchased the 3 Products on the same terms if the true facts were known about the product; (b) they 4 paid a price premium for the Products due to Defendant’s promises and warranties; 5 and (c) the Products do not have the characteristics as promised by Defendant. 6 87. Plaintiff may lack an adequate remedy at law, if, for instance, damages 7 resulting from her purchase of the Product is determined to be an amount less than 8 the premium price of the Product. Without compensation for the full premium price 9 of the Product, Plaintiff would be left without the parity in purchasing power to 10 which she is entitled. Further, injunctive relief is necessary to require Defendant to 11 provide full and accurate disclosures regarding the Product so that Plaintiff and Class 12 members can reasonably rely on Defendant’s representations as well as those of 13 Defendant’s competitors who may then have an incentive to follow Defendant’s 14 deceptive practices, further misleading consumers. 15 88. Restitution and/or injunctive relief may also be more certain, prompt, 16 and efficient than other legal remedies requested herein. The return of the full 17 premium price, and an injunction requiring either (1) adequate disclosure that the 18 Product’s are not in fact Non-GMO; or (2) the removal of such representations, will 19 ensure that Plaintiff is in the same place she would have been in had Defendant’s 20 wrongful conduct not occurred, i.e., in the position to make an informed decision 21 about the purchase of the Product absent misrepresentations with the full purchase 22 price at their disposal. 23 COUNT III Violation Of California’s Consumers Legal Remedies Act (“CLRA”), 24 California Civil Code §§ 1750, et seq. 25 (On Behalf Of The California Subclass) 26 89. Plaintiff hereby incorporates by reference the allegations contained in 27 all preceding paragraphs of this Complaint. 28 CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 35  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.37 Page 37 of 50 1 90. Plaintiff brings this claim individually and on behalf of the members of 2 the proposed California Subclass against Defendant. 3 91. Plaintiff and members of the Class are “consumers” within the meaning 4 of Cal. Civil Code § 1761(d) in that Plaintiff and the Class sought or acquired 5 Defendant’s goods and/or services for personal, family, or household purposes. 6 92. Defendant’s Products are “goods” within the meaning of Cal. Civil 7 Code § 1761(a). The purchases by Plaintiff and the Class are “transactions” within 8 the meaning of Cal. Civil Code § 1761(e). 9 93. The acts and practices of Defendant as described above were intended 10 to deceive Plaintiff and the Class as described herein, and have resulted, and will 11 continue to result, in damages to Plaintiff and members of the Class. These actions 12 violated, and continue to violate, the CLRA in at least the following respects: (a) 13 Defendant’s acts and practices constitute representations deceiving that the Products 14 have characteristics, uses, and/or benefits, which they do not have, in violation of 15 Cal. Civil Code § 1770(a)(5); (b) Defendant’s acts and practices constitute 16 representations that the Products are of a particular standard, quality, or grade, when 17 in fact they are of another, in violation of Cal. Civil Code § 1770(a)(7); and (c) 18 Defendant’s acts and practices constitute the advertisement of the Products in 19 question with the intent not to sell them as advertised, in violation of Cal. Civil Code 20 § 1770(a)(9). 21 94. Defendant violated these provisions of the CLRA by misrepresenting 22 that the Products are “Non-GMO” products, when in fact they are not. 23 95. Defendant knew or should have known, through the exercise of 24 reasonable care, that its Non-GMO Claims about the Products were untrue and 25 misleading. 26 96. Plaintiff and the California Subclass suffered injuries caused by 27 Defendant’s CLRA violations because: (a) they would not have purchased the 28 Products on the same terms if the true facts were known about the product; (b) they CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 36  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.38 Page 38 of 50 1 paid a price premium for the Products due to Defendant’s false and misleading 2 promises and warranties; and (c) the Products do not have the characteristics as 3 promised by Defendant. 4 97. Plaintiff, on behalf of herself and all other members the California 5 Subclass, seeks an injunction prohibiting Defendant from continuing its unlawful 6 practices in violation of the CLRA. 7 98. In compliance with the provisions of California Civil Code § 1782, 8 Plaintiff sent written notice to Defendant prior to filing this action on October 7, 9 2021, informing Defendant of her intention to seek damages under California Civil 10 Code § 1750. The letter was sent via certified mail, return request, advising 11 Defendant that it was in violation of the CLRA and demanding that it cease and 12 desist from such violations and make full restitution by refunding the monies 13 received therefrom. The letter expressly stated that it was sent on behalf of Plaintiff 14 and “all other persons similarly situated.” Accordingly, Plaintiff, individually and on 15 behalf of the proposed California Subclass, seeks monetary damages from Defendant 16 as permitted by Civil Code § 1782(d) for Defendant’s violations of the CLRA. 17 99. Plaintiff may lack an adequate remedy at law, if, for instance, damages 18 resulting from her purchase of the Product is determined to be an amount less than 19 the premium price of the Product. Without compensation for the full premium price 20 of the Product, Plaintiff would be left without the parity in purchasing power to 21 which she is entitled. Further, injunctive relief is necessary to require Defendant to 22 provide full and accurate disclosures regarding the Product so that Plaintiff and Class 23 members can reasonably rely on Defendant’s representations as well as those of 24 Defendant’s competitors who may then have an incentive to follow Defendant’s 25 deceptive practices, further misleading consumers. 26 100. Restitution and/or injunctive relief may also be more certain, prompt, 27 and efficient than other legal remedies requested herein. The return of the full 28 premium price, and an injunction requiring either (1) adequate disclosure that the CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 37  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.39 Page 39 of 50 1 Product’s are not in fact Non-GMO; or (2) the removal of such representations, will 2 ensure that Plaintiff is in the same place she would have been in had Defendant’s 3 wrongful conduct not occurred, i.e., in the position to make an informed decision 4 about the purchase of the Product absent misrepresentations with the full purchase 5 price at their disposal. 6 COUNT IV Breach Of Express Warranty 7 (On Behalf Of The Nationwide Class And California Subclass) 8 101. Plaintiff hereby incorporates by reference the allegations contained in 9 all preceding paragraphs of this complaint. 10 102. Plaintiff brings this claim individually and on behalf of the members of 11 the proposed Class and California Subclass against Defendant. 12 103. Defendant, as the designer, manufacturer, marketer, distributor, and/or 13 seller of the Products at issue, expressly warranted that the Products as “Non-GMO,” 14 among other Misrepresentations. 15 104. In fact, the Products are not “Non-GMO” as Defendant claims, because 16 they contain several ingredients derived from GMOs, and thus are not as marketed, 17 advertised, and/or warranted. 18 105. As a result of Defendant’s false and/or misleading misrepresentations, 19 including that the Products are “Non-GMO,” the Products were defective and did not 20 adhere to the express warranty when first sold to Plaintiff and Class Members, and 21 have not been repaired, replaced, or otherwise remedied as originally warranted since 22 the time of sale. 23 106. By breaching its express warranty, Defendant has caused and continues 24 to cause these warranties to fail of their essential purpose. 25 107. Plaintiff and Class Members have been injured and harmed as a direct 26 and proximate cause of Defendant’s breach of express warranty because: (a) they 27 would not have purchased the Products on the same terms if the true facts had been 28 CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 38  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.40 Page 40 of 50 1 known at the point of purchase; (b) they paid a price premium for the Products due to 2 Defendant’s false and misleading promises and warranties; and (c) the purportedly 3 “Non-GMO” Products do not have the characteristics, uses, or benefits as promised 4 by Defendant because they contain several ingredients derived from GMOs. 5 108. Plaintiff, individually and on behalf of the Class and the California 6 Subclass, seek all damages permitted by law, including compensation for the 7 monetary difference between the Products as warranted and as sold, along with all 8 other incidental and consequential damages, statutory damages, attorney’s fees, and 9 all other relief allowed by law. 10 COUNT V Breach Of The Implied Warranty Of Merchantability 11 (On Behalf Of The Nationwide Class And California Subclass) 12 109. Plaintiff hereby incorporates by reference the allegations contained in 13 all preceding paragraphs of this complaint. 14 110. Plaintiff brings this claim individually and on behalf of the members of 15 the proposed Class and the California Subclass against Defendant. 16 111. Defendant, as the designer, manufacturer, marketer, distributor, and/or 17 seller of the Products, impliedly warranted that the Products are “Non-GMO” when 18 in fact they are not, among other Misrepresentations. 19 112. Defendant breached the warranty implied in the contract for the sale of 20 the Products because they could not pass without objection in the trade under the 21 contract description, the goods were not of fair average quality within the 22 description, the goods were not fit for the ordinary purposes for which such goods 23 are used, and the goods do not conform to the promises or affirmations of fact made 24 on the label. As a result, Plaintiff and Class Members did not receive the goods as 25 impliedly warranted by Defendant to be merchantable. 26 113. Plaintiff and Class Members purchased the Products in reliance upon 27 Defendant’s skill and judgment and the implied warranties of fitness for the purpose. 28 CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 39  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.41 Page 41 of 50 1 114. The Products were not altered by Plaintiff or Class Members. 2 115. The Products were defective when they left the exclusive control of 3 Defendant. 4 116. Defendant knew that the Products would be purchased and used without 5 additional testing by Plaintiff and Class Members. 6 117. As a result of Defendant’s false and/or misleading representation that 7 the Products are “Non-GMO” (among other Misrepresentations), the Products were 8 defectively designed and unfit for their intended purpose, and Plaintiff and Class 9 Members did not receive the goods as warranted. 10 118. Plaintiff and Class Members have been injured and harmed as a direct 11 and proximate cause of Defendant’s breach of implied warranty because: (a) they 12 would not have purchased the Products on the same terms if the true facts were 13 known about the Products at the point of purchase; (b) they paid a price premium for 14 the Products due to Defendant’s false and misleading promises and warranties; and 15 (c) the Products do not have the characteristics as promised by Defendant. 16 COUNT VI Unjust Enrichment / Restitution 17 (On Behalf Of The Nationwide Class And California Subclass) 18 119. Plaintiff hereby incorporates by reference the allegations contained in 19 all preceding paragraphs of this complaint. 20 120. Plaintiff brings this claim individually and on behalf of the members of 21 the proposed Class and the California Subclass against Defendant. 22 121. To the extent the Court determines it is necessary to do so, this claim is 23 pled in the alternative to the other legal claims alleged in the complaint. 24 122. Plaintiff and Class Members conferred benefits on Defendant by 25 purchasing the purportedly “Non-GMO” Products. Defendant was and should have 26 been reasonably expected to provide Products that conform with the qualities listed 27 on their labeling and packaging. 28 CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 40  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.42 Page 42 of 50 1 123. Defendant has been unjustly enriched in retaining the revenues derived 2 from Plaintiff’s and Class Members’ purchases of the Products. Retention of those 3 moneys under these circumstances is unjust and inequitable because Defendant 4 misrepresented that the Products are “Non-GMO” products (among other 5 Misrepresentations) at the time of sale. These Non-GMO Misrepresentations caused 6 injuries to Plaintiff and Class Members because they would not have purchased the 7 Products if the true facts were known. 8 124. Defendant unjustly profited from the sale of the Products at inflated 9 prices as a result of its false representations, omissions, and concealment of the true 10 qualities of the Products. Defendant benefited at Plaintiff’s and Class Members’ 11 expenses when it sold GMO-riddled Products that were inferior to the purportedly 12 “Non-GMO” Products that Plaintiff and Class Members thought they were actually 13 purchasing, yet the price they paid was the price for a “Non-GMO” Products that are 14 100% free of ingredients derived from GM crops or food sources, genetically 15 engineered in a laboratory setting through the use of biotechnologies, or sourced 16 from animals that have been raised on GMO feed. 17 125. As a proximate result of Defendant’s false representations, omissions, 18 and/or concealment of the true qualities of the Products, and as a result of 19 Defendant’s resulting ill-gotten gains, benefits, and profits, Defendant has been 20 unjustly enriched at the expense of Plaintiff and Class Members. It would be 21 inequitable for Defendant to retain its ill-gotten profits without paying the value 22 thereof to Plaintiff and Class Members. 23 126. There is a direct relationship between Defendant on the one hand, and 24 Plaintiff and Class Members on the other, sufficient to support a claim for unjust 25 enrichment. Defendant marketed and sold the Products with the false and misleading 26 Misrepresentations that they were “Non-GMO” on their labeling and packaging to 27 improve retail sales, which in turn improved wholesale sales. Conversely, Defendant 28 knew that disclosure of the true and GMO-riddled nature of the Products would CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 41  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.43 Page 43 of 50 1 suppress retail and wholesale sales of the Products, in turn suppressing the demand 2 for the Products, and would negatively impact the reputation of Defendant’s brand 3 among Class Members and consumers. 4 127. Because Defendant’s retention of the non-gratuitous benefits conferred 5 on them by Plaintiff and Class Members is unjust and inequitable, Plaintiff and Class 6 Members are entitled to restitution for their unjust enrichment in the amount of 7 Defendant’s ill-gotten gains, benefits, and profits, including interest thereon. 8 Accordingly, Plaintiff seeks, individually and on behalf of Class and the California 9 Subclass Members, an order requiring Defendant to disgorge its gains and profits to 10 Plaintiff and members of the Classes, together with interest, in a manner to be 11 determined by the Court. 12 128. Plaintiff may lack an adequate remedy at law, if, for instance, damages 13 resulting from her purchase of the Product is determined to be an amount less than 14 the premium price of the Product. Without compensation for the full premium price 15 of the Product, Plaintiff would be left without the parity in purchasing power to 16 which she is entitled. Further, injunctive relief is necessary to require Defendant to 17 provide full and accurate disclosures regarding the Product so that Plaintiff and Class 18 members can reasonably rely on Defendant’s representations as well as those of 19 Defendant’s competitors who may then have an incentive to follow Defendant’s 20 deceptive practices, further misleading consumers. 21 129. Restitution and/or injunctive relief may also be more certain, prompt, 22 and efficient than other legal remedies requested herein. The return of the full 23 premium price, and an injunction requiring either (1) adequate disclosure that the 24 Product’s are not in fact Non-GMO; or (2) the removal of such representations, will 25 ensure that Plaintiff is in the same place she would have been in had Defendant’s 26 wrongful conduct not occurred, i.e., in the position to make an informed decision 27 about the purchase of the Product absent misrepresentations with the full purchase 28 price at their disposal. CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 42  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.44 Page 44 of 50 1 COUNT VII 2 Negligent Misrepresentation (On Behalf Of The Nationwide Class And California Subclass) 3 130. Plaintiff hereby incorporates by reference the allegations contained in 4 all preceding paragraphs of this complaint. 5 131. Plaintiff brings this claim individually and on behalf of the members of 6 the proposed Class and the California Subclass against Defendant. 7 132. As discussed above, Defendant misrepresented that the Products are 8 “Non-GMO” (among other misrepresentations), notwithstanding the fact that the 9 Products do contain several ingredients derived from GMOs and are therefore not, in 10 fact, “Non-GMO” as their labeling and packaging prominently states. 11 133. At the time Defendant made these representations, Defendant knew or 12 should have known that these representations were false or made them without 13 knowledge of their truth or veracity. At an absolute minimum, Defendant 14 negligently misrepresented as “Non-GMO” and/or negligently omitted material facts 15 about the Products at issue, namely that the Products do, in fact, contain GMOs. 16 134. Defendant had no reasonable grounds for believing that its 17 representations were true because Defendant failed to consistently ensure that it was 18 able to produce the Products as free of GMOs, as advertised. 19 135. The negligent misrepresentations and omissions made by Defendant, 20 upon which Plaintiff and Class Members reasonably and justifiably relied, were 21 intended to induce, and actually did induce, Plaintiff and Class Members to purchase 22 the Products. In making these negligent misrepresentations and omissions to 23 Plaintiff and the Class, upon which Plaintiff and Class Members reasonably and 24 justifiably relied, Defendant intended to induce, and actually did induce, Plaintiff and 25 Class Members to purchase its “GMO-Free” Products. 26 136. At all times herein, Plaintiff and Class Members were unaware of the 27 falsity of Defendant’s statements. 28 CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 43  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.45 Page 45 of 50 1 137. Plaintiff and Class Members reasonably acted in response to the 2 statements made by Defendant when they purchased the Products. 3 138. As a direct and proximate result of Defendant’s negligent 4 misrepresentations and omissions regarding the true nature of the Products, Plaintiff 5 and Class Members were injured. Specifically, Plaintiff and Class Members incurred 6 economic harm as a result of Defendant’s negligent misrepresentations and/or 7 omissions in that they would not have purchased the Products or would not have 8 purchased them on the same terms, but for Defendant’s unlawful conduct alleged 9 herein. Accordingly, Plaintiff and Class Members are entitled to compensatory 10 and/or punitive damages in an amount to be proven at trial. 11 COUNT VIII Fraud 12 (On Behalf Of The Nationwide Class And California Subclass) 13 139. Plaintiff hereby incorporates by reference the allegations contained in 14 all preceding paragraphs of this complaint. 15 140. Plaintiff brings this claim individually and on behalf of the members of 16 the proposed Class and Subclass against Defendant. 17 141. As discussed above, Defendant provided Plaintiff and Class Members 18 with false or misleading material information and failed to disclose material facts 19 about the Products, including but not limited to the fact that each of the purportedly 20 “Non-GMO” Products do indeed contain several ingredients derived from GMOs 21 and are therefore not, in fact, “Non-GMO” as their labeling and packaging 22 prominently states. These misrepresentations and omissions were made with 23 knowledge of their falsehood. 24 142. These misrepresentations and omissions made by Defendant, upon 25 which Plaintiff and Class Members reasonably and justifiably relied, were intended 26 to induce, and actually induced, Plaintiff and Class Members to purchase the 27 Products. 28 CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 44  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.46 Page 46 of 50 1 143. The fraudulent actions of Defendant caused damage to Plaintiff and 2 Class and the California Subclass Members, who are entitled to damages and other 3 legal and equitable relief as a result. 4 144. Further, as a result of Defendant’s willful and malicious conduct, 5 punitive damages are warranted. 6 COUNT IX Fraudulent Misrepresentation 7 (On Behalf Of The Nationwide Class And California Subclass) 8 145. Plaintiff hereby incorporates by reference the allegations contained in 9 all preceding paragraphs of this complaint. 10 146. Plaintiff brings this claim individually and on behalf of the members of 11 the proposed Class and the California Subclass against Defendant. 12 147. At all relevant times, Defendant was engaged in the business of 13 manufacturing, marketing, packaging, distributing, and selling the Products. 14 148. Defendant, acting through its representatives or agents, delivered the 15 Products to its own distributors and various other distribution channels. 16 149. Defendant willfully, falsely, and knowingly omitted various material 17 facts regarding the true nature, quality, and characteristics of the Products, namely 18 pertaining to the “Non-GMO” representation. 19 150. Rather than inform consumers of the truth regarding the GMOs in the 20 Products, Defendant misrepresented the Products as “Non-GMO” at the time of 21 purchase. 22 151. Defendant made these material misrepresentations to boost or to 23 maintain sales of the Products, and to falsely assure purchasers that it is a company 24 that cares about GMOs in foods, as discussed throughout. The false representations 25 were material to consumers, including Plaintiff, because the representations played a 26 significant role in the decision to purchase the Products. 27 28 CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 45  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.47 Page 47 of 50 1 152. Plaintiff and Class Members accepted the terms in purchasing the 2 Products, which were silent on the true quality, nature, and characteristics of the 3 Products. Plaintiff and Class Members had no reasonable way of knowing of 4 Defendant’s misrepresentation as to the Products, and had no way of knowing that 5 the misrepresentations were misleading. 6 153. Although Defendant had a duty, arising, in part, from its superior 7 knowledge, to ensure that accuracy of the information regarding whether its 8 ingredients were in fact genetically modified, it did not fulfill these duties. 9 154. Instead, Defendant misrepresented material facts partly to pad and 10 protect its profits, as it saw that profits and sales were essential for its continued 11 growth and to maintain and grow its reputation as a producer of Non-GMO foods. 12 Such benefits came at the expense of Plaintiff and Class Members. 13 155. Plaintiff and Class Members were unaware of these material 14 misrepresentations, and they would not have acted as they did had they known the 15 truth. Plaintiff’s and the Class Members’ actions were justified given Defendant’s 16 misrepresentations. Defendant was in the exclusive control of material facts, and 17 such facts were not known to the public. 18 156. Due to Defendant’s misrepresentations, Plaintiff and Class Members 19 sustained injury due to the purchase of Products that did not live up to their 20 advertised and packaged representations, especially those concerning the GMO-free 21 representations. Plaintiff and Class Members are entitled to recover full or partial 22 refunds for Products they purchased due to Defendant’s misrepresentations, or they 23 are entitled to damages for the diminished value of their Products, amounts to be 24 determined at trial. 25 157. Defendant’s acts were done maliciously, oppressively, deliberately, and 26 with intent to defraud, and in reckless disregard of Plaintiff and Class member’s 27 rights and well-being, and in part to enrich itself at the expense of consumers. 28 Defendant’s acts were done to gain commercial advantage over competitors, and to CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 46  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.48 Page 48 of 50 1 drive consumers away from consideration of competitor’s products, and to boost its 2 reputation as a maker of Non-GMO foods. Defendant’s conduct warrants an 3 assessment of punitive damages in an amount sufficient to deter such conduct in the 4 future. 5 JURY DEMAND 6 Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiff demands a trial by 7 jury of any and all issues in this action so triable as of right. 8 REQUEST FOR RELIEF 9 WHEREFORE, Plaintiff, individually and on behalf of all others similarly 10 situated, seeks judgment against Defendant, as follows: 11 (a) For an order certifying the nationwide Class and the California 12 Subclass under Rule 23 of the Federal Rules of Civil Procedure 13 and naming Plaintiff as representative of the Class and of the California Subclass, and Plaintiff’s attorneys as Class Counsel to 14 represent the proposed Class and Subclass; 15 (b) For an order declaring that Defendant’s conduct violates the 16 statutes referenced herein; 17 (c) For an order finding in favor of Plaintiff, the Class, and the 18 California Subclass on all counts asserted herein; 19 (d) For compensatory, statutory, and punitive damages in amounts to 20 be determined by the Court and/or jury; 21 (e) For prejudgment interest on all amounts awarded; 22 23 (f) For an order of restitution and all other forms of equitable monetary relief; 24 25 (g) For injunctive relief as pleaded or as the Court may deem proper; 26 (h) For an order awarding Plaintiff and members of the Class and 27 Subclasses their reasonable attorneys’ fees and reimbursement of litigation expenses and costs of suit; and 28 CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 47  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.49 Page 49 of 50 1 2 (i) For such other and further relief as the Court may deem proper. 3 4 Dated: March 30, 2022 Respectfully submitted, 5 BURSOR & FISHER, P.A. 6 By: /s/ L. Timothy Fisher 7 8 L. Timothy Fisher (State Bar No. 191626) Sean L. Litteral (State Bar No. 331985) 9 Julia K. Venditti (State Bar No. 332688) 10 1990 North California Boulevard, Suite 940 Walnut Creek, CA 94596 11 Telephone: (925) 300-4455 12 Facsimile: (925) 407-2700 Email: ltfisher@bursor.com 13 slitteral@bursor.com 14 jvenditti@bursor.com 15 Attorneys for Plaintiff and the Putative Class 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 48  Case 3:22-cv-00421-L-RBB Document 1 Filed 03/30/22 PageID.50 Page 50 of 50 1 CLRA Venue Declaration Pursuant to California Civil Code Section 1780(d) 2 I, L. Timothy Fisher, declare as follows: 3 1. I am an attorney at law licensed to practice in the State of California and 4 a member of the bar of this Court. I am a partner at Bursor & Fisher, P.A., counsel 5 of record for Plaintiff Rocio Lopez. Plaintiff Lopez resides in Imperial, California. I 6 have personal knowledge of the facts set forth in this declaration and, if called as a 7 witness, I could and would competently testify thereto under oath. 8 2. The Complaint filed in this action is filed in the proper place for trial 9 under Civil Code Section 1780(d) in that a substantial portion of the events alleged 10 in the Complaint occurred in the Southern District of California, as Plaintiff 11 purchased the Products from brick-and-mortar retails stores located within this 12 District. Additionally, Defendant advertised, marketed, manufactured, distributed, 13 and/or sold the Products at issue to Plaintiff from this District. 14 I declare under the penalty of perjury under the laws of the State of California 15 and the United States that the foregoing is true and correct and that this declaration 16 was executed at Walnut Creek, California this 30th day of March, 2022. 17 /s/ L. Timothy Fisher 18 L. Timothy Fisher 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED 49