14.  The front labels of the Products represent that they are free of preservatives.  But  all of the Products contain one or more of the preservatives citric acid, phosphoric acid, and  ascorbic acid.   15.  By representing that the Products have “No Preservatives,” Defendants sought to  capitalize on consumers’ preference for less processed foods and drinks with fewer additives and  the association between such products and a wholesome way of life. Consumers are willing to pay  more for less processed products with no additives because of this association as well as the  perceived higher quality, health and safety benefits associated with preservative-free foods.   16.  The marketing research firm Mintel reports that more and more Americans are  concerned to avoid food containing preservatives:   Foods bearing “free-from” claims are increasingly relevant to Americans, as they  perceive the products as closely tied to health. New research from Mintel reveals  that 84 percent of American free-from consumers buy free-from foods because  they are seeking out more natural or less processed foods. In fact, 43 percent of  consumers agree that free-from foods are healthier than foods without a free-from  claim, while another three in five believe the fewer ingredients a product has, the  healthier it is (59 percent).  Among the top claims free-from consumers deem most important are trans-fat-free  (78 percent) and preservative-free (71 percent).1  1  http://www.mintel.com/press-centre/food-and-drink/84-of-americans-buy-free-from-foods- because-they-believe-them-to-be-more-natural-or-less-processed (last accessed 07/05/2017)  6   17.  And alternet.org reports research showing that most Americans are prepared to pay  a premium price for such healthier options:  Not only are consumers increasingly seeking out wholesome foods, they are willing  to pay a premium for them. According to Nielsen’s 2015 Global Health & Wellness  Survey that polled over 30,000 people online, 88 percent of Americans are willing  to pay more for healthier foods. Global sales of healthy food products are estimated  to reach $1 trillion by 2017, according to Euromonitor.  When it comes to what consumers will be seeking out more of over the coming  year, it may amount to single word. “Just think of the word no," Seifer said. "No  preservatives, no additives, no growth hormones."2   18.  Given these trends, Defendants had a natural interest in misrepresenting their  Products as free of preservatives despite the presence of citric acid, phosphoric acid, and ascorbic  acid, as this misrepresentation provided a clear marketing advantage over competitors that do not  engage in such deceptive conduct.  Citric Acid, Phosphoric Acid, and Ascorbic Acid Are Preservatives   19.  Citric acid, phosphoric acid, and ascorbic acid are preservatives as the term is  defined by the FDA in 21 C.F.R. § 101.22(a)(5):  “The term chemical preservative means any  chemical that, when added to food, tends to prevent or retard deterioration thereof, but does not  include common salt, sugars, vinegars, spices, or oils extracted from spices, substances added  to food by direct exposure thereof to wood smoke, or chemicals applied for their insecticidal or  herbicidal properties.”     20.  The MacMillan Dictionary defines “tends” as “to usually do a particular thing,” as  in “He tends to exaggerate” or “The gym tends to get very busy at around six o’clock.”3  The  scientific evidence and FDA statements cited below establishes that citric, phosphoric, and  2 http://www.alternet.org/food/8-food-trends-watch-2016 (last accessed 07/05/2017)   3 http://www.macmillandictionary.com/us/dictionary/american/tend (last accessed 07/05/2017)  7  ascorbic acids all tend to prevent or retard the deterioration of food.  And this remains the case  regardless of the subjective purposes for which these substances were added to the Products.   Citric, phosphoric and ascorbic acids do not fall into any of the regulatory exemptions from the  definition of a preservative.    Citric Acid Is A Preservative   21.  Citric acid is a preservative.  The FDA expressly classifies citric acid as a  preservative. Citric acid is identified as a preservative in its Overview of Food Ingredients,  Additives, and Colors, on the FDA’s website:  Types of  Ingredients  What They Do  Examples  of Uses  Names Found  on Product Labels  Preservatives Prevent food spoilage from  bacteria, molds, fungi, or  yeast (antimicrobials); slow or  prevent changes in color,  flavor, or texture and delay  rancidity (antioxidants);  maintain freshness  Fruit sauces and  jellies, beverages,  baked goods, cured  meats, oils and  margarines, cereals,  dressings, snack  foods, fruits and  vegetables  Ascorbic acid, citric acid,  sodium benzoate, calcium  propionate, sodium  erythorbate, sodium  nitrite, calcium sorbate,  potassium sorbate, BHA,  BHT, EDTA, tocopherols  (Vitamin E)  http://www.fda.gov/Food/IngredientsPackagingLabeling/FoodAdditivesIngredients/ucm094211.htm.  (last accessed 07/05/2017)    22.     The FDA’s classification of citric acid as a preservative is further confirmed by its  Warning Letter, dated October 6, 2010, to the manufacturer of the Chiquita brand "Pineapple Bites  with Coconut" and "Pineapple Bites":  “The ‘Pineapple Bites’ and ‘Pineapple Bites with Coconut’ products are further  misbranded within the meaning of section 403(k) of the Act [21 U.S.C. 343(k)] in  that they contain the chemical preservative ascorbic acid and citric acid but their  8  labels fail to declare these preservatives with a description of their functions. 21  50.  Plaintiff NASERI seeks to represent the following class:   All individuals who made retail purchases of the Products in New  York during the applicable limitations period for personal  consumption and not resale, and/or such subClass as the Court may  deem appropriate. (“the Class”)  15   51.  The proposed Class excludes current and former officers and directors of  Defendants, members of the immediate families of the officers and directors of Defendants,  Defendants’ legal representatives, heirs, successors, assigns, and any entity in which they have or  have had a controlling interest, and the judicial officer to whom this lawsuit is assigned.   52.  Plaintiff reserves the right to revise the Class definition based on facts learned in  the course of litigating this matter.   53.  This action is proper for class treatment under Rules 23(b)(1)(B) and 23(b)(3) of  the Federal Rules of Civil Procedure. While the exact number and identities of other Class  members are unknown to Plaintiff at this time, Plaintiff is informed and believes that there are  thousands of Class members. Thus, the Class is so numerous that individual joinder of all Class  members is impracticable.   54.  Common questions of law and fact arise from Defendants’ conduct described herein.  Such questions are common to all Class members and predominate over any questions affecting  only individual Class members. These include:  a.  whether labeling “No Preservatives” on Products containing citric acid,   phosphoric acid, and ascorbic acid was false and misleading;  b.  whether Defendants deprived Plaintiff and the Class of the benefit of their bargain  because the Products purchased were different from, and had less value than, what  Defendants warranted;  c.  whether Defendants must disgorge any and all profits it has made as a result of its  misconduct; and  d.  whether Defendants should be barred from marketing the Products as having “No  Preservatives.”  16   55.   Plaintiff’s claims are typical of those of the Class members because Plaintiff and  the other Class members sustained damages arising out of the same wrongful conduct, as detailed  herein. Plaintiff and other Class members purchased Defendants’ Products and sustained similar  injuries arising out of Defendants’ conduct in violation of New York State law. Defendants’  unlawful, unfair and fraudulent actions concern the same business practices described herein  irrespective of where they occurred or were experienced. The injuries of the Class were caused  directly by Defendants’ unfair and deceptive practices. In addition, the factual underpinning of  Defendants’ misconduct is common to all Class members and represents a common thread of  misconduct resulting in injury to all members of the Class. Plaintiff’s claims arise from the same  practices and course of conduct that give rise to the claims of the members of the Class and are  based on the same legal theories.   56.  Plaintiff will fairly and adequately represent and pursue the interests of the Class  and has retained competent counsel experienced in prosecuting class actions. Plaintiff understands  the nature of his claims herein, has no disqualifying conditions, and will vigorously represent the  interests of the Class. Neither Plaintiff nor Plaintiff’s counsel have any interests that conflict with  or are antagonistic to the interests of the Class. Plaintiff has retained highly competent and  experienced class action attorneys to represent his interests and those of the Class. Plaintiff and  Plaintiff’s counsel have the necessary financial resources to adequately and vigorously litigate this  class action, and Plaintiff and counsel are aware of their fiduciary responsibilities to the Class and  will diligently discharge those duties by vigorously seeking the maximum possible recovery for  the Class.   57.  A class action is superior to other available methods for the fair and efficient  adjudication of this controversy. The damages suffered by any individual class member are too  17  small to make it economically feasible for an individual class member to prosecute a separate  action, and it is desirable for judicial efficiency to concentrate the litigation of the claims in this  forum. Furthermore, the adjudication of this controversy through a class action will avoid the  potentially inconsistent and conflicting adjudications of the claims asserted herein. There will be  no difficulty in the management of this action as a class action.   58.  The prerequisites to maintaining a class action for injunctive relief or equitable  relief pursuant to Rule 23(b)(2) are met, as Defendants have acted or refused to act on grounds  generally applicable to the Class, thereby making appropriate final injunctive or equitable relief  with respect to the Class as a whole.   59.  The prerequisites to maintaining a class action for injunctive relief or equitable  relief pursuant to Rule 23(b)(3) are met, as questions of law or fact common to the Class  predominate over any questions affecting only individual members, and a class action is superior  to other available methods for fairly and efficiently adjudicating the controversy.   60.  The prosecution of separate actions by members of the Class would create a risk of  establishing inconsistent rulings and/or incompatible standards of conduct for Defendants.  Additionally, individual actions may be dispositive of the interest of all members of the Class,  although certain Class members are not parties to such actions.   61.  Defendants’ conduct is generally applicable to the Class as a whole and Plaintiff  seeks, inter alia, equitable remedies with respect to the Class as a whole. As such, Defendants’  systematic policies and practices make declaratory relief with respect to the Class as a whole  appropriate.  18  62.  Plaintiff NASERI realleges and incorporates herein by reference the allegations  contained in all preceding paragraphs, and further alleges as follows:   63.  Plaintiff NASERI brings this claim on behalf of himself and the other members of  the Class for an injunction for violations of New York’s Deceptive Acts or Practices Law (“NY  71.  Plaintiff NASERI realleges and incorporates herein by reference the allegations  contained in all preceding paragraphs, and further alleges as follows:   72. Plaintiff NASERI brings this claim individually and on behalf of the other members of  the Class for violations of NY GBL § 349.   73. Defendants’ business act and practices and/or omissions alleged herein constitute  deceptive acts or practices under NY GBL § 349, which were enacted to protect the consuming  public from those who engage in unconscionable, deceptive or unfair acts or practices in the  conduct of any business, trade or commerce.   74. The practices of Defendants described throughout this Complaint, were specifically  directed to consumers and violate the NY GBL § 349 for, inter alia, the following reasons:  20  a.  Defendants knowingly and falsely represented and advertised that the  Products have “No Preservatives” with an intent to cause Plaintiff and members of  the Class to believe that they do not contain preservatives;   b.  Defendants caused Plaintiff and the Class to suffer a probability of  confusion and a misunderstanding of legal rights, obligations and/or remedies by  and through their conduct;  c.  Defendants made material representations and statements of fact to Plaintiff  and the Class that resulted in Plaintiff and the Class reasonably believing the  represented or suggested state of affairs to be other than what they actually were.   75.  The practices employed by Defendants, whereby Defendants advertised, promoted,  and marketed their Products as having “No Preservatives” were unfair, deceptive, and misleading  and are in violation of NY GBL § 349.   76.  Under the circumstances, Defendants’ conduct in employing these unfair and  deceptive trade practices were malicious, willful, wanton and outrageous such as to shock the  conscience of the community and warrant the imposition of punitive damages.   77.  Defendants’ actions impact the public interest because Plaintiff and members of the  Class were injured in exactly the same way as thousands of others purchasing the Products as a  result of and Defendants’ generalized course of deception.   78.  The foregoing deceptive acts and practices were directed at consumers.   79.  The foregoing deceptive acts and practices proximately caused Plaintiff and other  members of the Class to suffer actual damages in the form of, inter alia, monies spent to purchase  the Products. Plaintiff and other members of the Class are entitled to recover compensatory  21  damages, statutory damages, punitive damages, attorneys' fees and costs, and any other relief the  Court deems appropriate. Damages can be calculated through expert testimony at trial.  80.  Plaintiff NASERI realleges and incorporates by reference the allegations contained  in all preceding paragraphs and further alleges as follows:   81.  Plaintiff NASERI brings this claim individually, as well as on behalf of members  of the class, for violations of NY GBL § 350.   82.  Defendants have been and/or is engaged in the “conduct of … business, trade or  commerce” within the meaning of N.Y. Gen. Bus. Law § 350.   83.  New York Gen. Bus. Law § 350 makes unlawful “[f]alse advertising in the conduct  of any business, trade or commerce.” False advertising includes “advertising, including labeling,  of a commodity … if such advertising is misleading in a material respect,” taking into account “the  extent to which the advertising fails to reveal facts material in light of … representations [made]  with respect to the commodity …” N.Y. Gen. Bus. Law § 350-a(1).   84.  Defendants caused to be disseminated throughout New York, through advertising,  marketing and other publications, statements that were untrue or misleading.     85.  Defendants’ affirmative misrepresentations that the Products contain “No  Preservatives” were material and substantially uniform in content, presentation, and impact upon  consumers at large. Consumers purchasing the Products were, and continue to be, exposed to  Defendants’ material misrepresentations.   22   86.  Defendants have violated N.Y. Gen. Bus. Law § 350 because their “No  Preservatives” misrepresentations were material and likely to deceive a reasonable consumer.    87.  Plaintiff NASERI and members of the Class have suffered an injury, including the  loss of money or property, as a result of Defendants’ false and misleading advertising.    88.  Pursuant to N.Y. Gen. Bus. Law § 350-e, Plaintiff NASERI and members of the  Class seek monetary damages (including actual damages and minimum, punitive, or treble and/or  statutory damages pursuant to GBL § 350-a(1)), injunctive relief, restitution and disgorgement of  all monies obtained by means of Defendants' unlawful conduct, interest, and attorneys' fees and  costs.   89.  Plaintiff NASERI realleges and incorporates herein by reference the allegations  contained in all preceding paragraphs, and further alleges as follows:   90.  Defendants intentionally made materially false and misleading representations  regarding the composition of the Products.    91.  Plaintiff and members of the Class reasonably relied on Defendants’ false and  misleading representations.  They did not know, and had no reason to know, that the Products  contained preservatives, and they would not have purchased the Products had they known.      92.  Defendants knew and intended that Plaintiff and the Class would rely on its  misrepresentations.   93.  Plaintiff and members of the Class have been injured as a result of Defendants’  fraudulent conduct.  23   94.  Defendants are liable to Plaintiff and members of the Class for damages sustained  as a result of Defendants’ fraud.   COMMON LAW FRAUD   DAMAGES FOR VIOLATIONS OF NEW YORK GENERAL BUSINESS LAW § 350  (FALSE ADVERTISING LAW)   DAMAGES FOR VIOLATIONS OF NEW YORK GENERAL BUSINESS LAW § 349  (DECEPTIVE AND UNFAIR TRADE PRACTICES ACT)   Defendants Market Their Products As Free of Added Preservatives Even Though They  Contain Citric Acid, Phosphoric Acid, And Ascorbic Acid   INJUNCTION FOR VIOLATIONS OF NEW YORK GENERAL BUSINESS LAW § 349  (DECEPTIVE AND UNFAIR TRADE PRACTICES ACT)  