12.  Probiotics are live microorganisms that, when administrated in adequate amounts,  confer a health benefit on the host.  The term probiotics excludes metabolic by-products of  microorganisms, dead microorganisms, or other microbial-based, non-viable products.    13.  In 2001, the Food and Agriculture Organization of the United Nations (“FAO”)  and the World Health Organization (“WHO”) convened to establish guidelines regarding  probiotics.  The organizations defined “probiotics” as “Live organisms which when administered  in adequate amounts confer a health benefit on the host.”2    15.  Preservatives are bioactive ingredients or substances that have the ability to  prevent or decrease microbial growth in a cosmetic product.  Antimicrobial preservatives protect  cosmetics from contamination of microorganisms, like bacteria, yeast and mold, and can prolong  the shelf-life of cosmetic products.  Preservatives are a key component in making a cosmetic  inhospitable to microorganisms.  Inclusion of a preservative into a cosmetic that contains  probiotics would render a cosmetic inhospitable to live microorganisms such as probiotics.    16.  Cosmetics containing “probiotics” are often formulated with both preservatives  and tyndallized, or heat treated, probiotics.  Tyndallization intentionally kills the microorganisms  and preservatives make the cosmetics inhospitable to them.  As a result, cosmetics, like the Tula  Cosmetics, cannot provide any of the promised benefits because the active ingredient, probiotics,  has been rendered inert and therefore cannot provide any purported health benefits.   B.  Defendant’s Misrepresentations Regarding The Tula  Cosmetics   18.  However, all of the Tula Cosmetics contain preservatives that render any added  probiotics inert, and therefore ineffective.  A small sampling is listed below:   Product  Preservative(s)  Glow & Get It Cooling & Brightening Eye Balm  Sodium Metabisulfite,  Ehtylhexylglyceirn, and  Phenoxyethanol  Face Filter Blurring & Moisturizing Primer  Phenoxyethanol  The Cult Classic Purifying Face Cleanser   Phenoxyethanol  Protect + Plump Firming & Hydrating Face Moisturizer  Ethylhexylglycerin   19.  Defendant’s advertising and marketing of the Tula Cosmetics is false and  misleading and omits material information.  Tula prominently advertises on the front label that  they the Tula Cosmetics contain  “probiotics.”  Consumers reasonably expect that Tula  Cosmetics will, in fact, contain live probiotics.  Nowhere on the Tula Cosmetics’ packaging does  Defendant inform consumers that the Tula Cosmetics do not contain live probiotics.  Defendant’s  misrepresentations and/or omissions violate consumers’ reasonable expectations and, as alleged  herein, New York’s consumer protection statutes.     21.  Defendant employs professional chemists to create the chemical formulas for the  Tula Cosmetics.  Therefore, Defendant, through its employees, knew or should have known that  the Tula Cosmetics did not contain probiotics and that it was deceiving consumers by labeling  the Products as containing “probiotics”    22.  On information and belief, Defendant, through its employees, did know that the  Tula Cosmetics did not contain probiotics, but chose to include the Probiotics Claims because  they did not believe their customers would know the difference.    23.  Had Defendant not made the false, misleading, and deceptive representations  and/or omissions alleged herein, Plaintiff and Class Members would not have purchased the Tula  Cosmetics or would not have paid as much as they did for such products.  Thus, Plaintiff and  Class Members suffered an injury in fact and lost money or property as result of Defendant’s  wrongful conduct.  24.  Plaintiff hereby incorporates by reference and re-alleges herein the allegations  contained in all preceding paragraphs of this complaint.    26.  Plaintiff Tammy Carpenter also seeks to represent a subclass consisting of Class  Members who reside in New York (the “New York Subclass”).    27.  Subject to additional information obtained through further investigation and  discovery, the foregoing definitions of the Class and Subclass may be expanded or narrowed by  amendment or amended complaint.   28.  Numerosity.  The Class and Subclass Members are geographically dispersed  throughout the United States and are so numerous that individual joinder is impracticable.  Upon  information and belief, Plaintiff reasonably estimates that there are hundreds of thousands of  Members in the Class and in the Subclass.  Although the precise number of Class and Subclass  Members is unknown to Plaintiff, it is known by Defendant and may be determined through  discovery.    31.  Adequacy of Representation.  Plaintiff will fairly and adequately protect the  interests of the Members of the Class and Subclass.  Plaintiff has retained counsel that is highly  experienced in complex consumer class action litigation, and Plaintiff intends to vigorously  prosecute this action on behalf of the Class and Subclass.  Furthermore, Plaintiff have no  interests that are antagonistic to those of the Class or Subclass.   32.  Superiority.  A class action is superior to all other available means for the fair  and efficient adjudication of this controversy.  The damages or other financial detriment suffered  by individual Class and Subclass Members are relatively small compared to the burden and  expense of individual litigation of their claims against Defendant.  It would, thus, be virtually  impossible for Class or Subclass Members to obtain effective redress on an individual basis for  the wrongs committed against them.  Even if Class or Subclass Members could afford such  individualized litigation, the court system could not.  Individualized litigation would create the  danger of inconsistent or contradictory judgments arising from the same set of facts.  It would  also increase the delay and expense to all parties and the court system from the issues raised by  this action.  The class action device provides the benefits of adjudication of these issues in a  single proceeding, economies of scale, and comprehensive supervision by a single court, and  presents no unusual management difficulties under the circumstances.   34.  Plaintiff hereby incorporates by reference and re-alleges herein the allegations  contained in all preceding paragraphs of this complaint.   35.  Plaintiff Tammy Carpenter brings this claim individually and on behalf of the  Members of the proposed New York Subclass against Defendant.    36.  Defendant committed deceptive acts and practices by employing false,  misleading, and deceptive representations and/or omissions about the probiotic content of its  Tula Cosmetics to mislead consumers into believing the Tula Cosmetics contain probiotics.    38.  Defendant’s deceptive acts and practices were directed at consumers.    39.  Defendant’s deceptive acts and practices are misleading in a material way because  they violate consumers’ reasonable expectations.  Defendant knew consumers would purchase  Tula Cosmetics and/or pay more for them under the false – but reasonable – belief that Tula  Cosmetics contained probiotics, when they do not.  By advertising so prominently that Tula  Cosmetics contains probiotics, Defendant proves that information about probiotics is material to  consumers.  If such information were not material, Defendant would not feature it prominently  on the front label of every Tula Cosmetics package.  As a result of its deceptive acts and  practices, Defendant has sold thousands, if not millions, of Tula Cosmetics to unsuspecting  consumers across New York.  If Defendant had advertised its Tula Cosmetics truthfully and in a  non-misleading fashion, Plaintiff and other New York Subclass Members would not have  purchased them or would not have paid as much as they did for them.    40.  As a direct and proximate result of Defendant’s false, misleading, and deceptive  representations and/or omissions, Plaintiff Carpenter and other Members of the New York  Subclass were injured in that they: (1) paid money for Tula Cosmetics that were not what  Defendant represented; (2) were deprived of the benefit of the bargain because the Tula  Cosmetics they purchased were different than Defendant advertised; and (3) were deprived of the  benefit of the bargain because the Tula Cosmetics they purchased had less value than if  Defendant’s representations about probiotics were truthful.     42.  Plaintiff hereby incorporates by reference and re-alleges herein the allegations  contained in all preceding paragraphs of this complaint.   43.  Plaintiff Tammy Carpenter brings this claim individually and on behalf of the  Members of the proposed New York Subclass against Defendant.   44.  Defendant engaged in a campaign of false advertising with regard to the probiotic  content of Tula Cosmetics to mislead consumers into believing the Tula Cosmetics they purchase  contains “probiotics.”   45.  Plaintiff Carpenter has standing to pursue this claim because she has suffered an  injury-in-fact and has lost money or property as a result of Defendant’s deceptive acts and  practices.  Specifically, Plaintiff Carpenter purchased Tula Cosmetics for her own personal use.   In doing so, Plaintiff Carpenter relied upon Defendant’s false, misleading, and deceptive  representations that Tula Cosmetics would contain probiotics when they do not.  Plaintiff  Carpenter spent money in the transaction that she otherwise would not have spent had she known  the truth about Defendant’s advertising claims.   46.  Defendant’s deceptive acts and practices were directed at consumers.    48.  As a direct and proximate result of Defendant’s false, misleading, and deceptive  representations and omissions, Plaintiff Carpenter and other Members of the New York Subclass  were injured in that they: (1) paid money for Tula Cosmetics that were not what Defendant  represented; (2) were deprived of the benefit of the bargain because the Tula Cosmetics they  purchased were different than Defendant advertised; and (3) were deprived of the benefit of the  bargain because the Tula Cosmetics they purchased had less value than if Defendant’s  representations about probiotics were truthful.     49.  On behalf of herself and Members of the New York Subclass, Plaintiff Carpenter  seeks to enjoin Defendant’s unlawful acts and practices and recover her actual damages or five  hundred (500) dollars per violation, whichever is greater, three times actual damages, and  reasonable attorneys’ fees.  50.  Plaintiff hereby incorporates by reference and re-alleges herein the allegations  contained in all preceding paragraphs of this complaint.   51.  Plaintiff Tammy Carpenter brings this claim individually and on behalf of the  Members of the proposed Class and Subclass against Defendant.   53.  In fact, the Tula Cosmetics do not conform to Defendant’s representations about  probiotics because Tula Cosmetics do not, in fact, contain active probiotics.  By falsely  representing the Tula Cosmetics in this way, Defendant breached express warranties.   54.  On March 1, 2021, prior to the filing of this Complaint, Plaintiff’s counsel sent  Defendant a warranty notice letter that complied in all respects with U.C.C. 2-607.  The letter  provided notice of breach of express and implied warranties.  The letter was sent via certified  mail, return receipt requested, advising Defendant that it was in violation of the U.C.C. 2-607  and state consumer protection laws and demanding that it cease and desist from such violations  and make full restitution by refunding the monies received therefrom.  The letter stated that it  was sent on behalf of Plaintiff and all other similarly situated purchasers.    55.  As a direct and proximate result of Defendant’s breach, Plaintiff and Members of  the Class and Subclass were injured because they: (1) paid money for Tula Cosmetics that were  not what Defendant represented; (2) were deprived of the benefit of the bargain because the Tula  Cosmetics they purchased were different than Defendant advertised; and (3) were deprived of the  benefit of the bargain because the Tula Cosmetics they purchased had less value than if  Defendant’s representations about probiotics were truthful.  Had Defendant not breached the  express warranty by making the false representations alleged herein, Plaintiff and Class and  Subclass Members would not have purchased the Tula Cosmetics or would not have paid as  much as they did for them.   57.  Plaintiff Tammy Carpenter brings this claim individually and on behalf of the  Members of the proposed Class and Subclass against Defendant.   58.  Defendant routinely engages in the manufacture, distribution, and/or sale of Tula  Cosmetics and is a merchant that deals in such goods or otherwise holds itself out as having  knowledge or skill particular to the practices and goods involved.     59.  Plaintiff and Members of the Class and Subclass were consumers who purchased  Defendant’s Tula Cosmetics for the ordinary purpose of such products.   60.  By representing that the Tula Cosmetics contain probiotics, Defendant impliedly  warranted to consumers that the Tula Cosmetics were merchantable, such that they were of the  same average grade, quality, and value as similar goods sold under similar circumstances.     61.  However, the Tula Cosmetics were not of the same average grade, quality, and  value as similar goods sold under similar circumstances.  Thus, they were not merchantable and,  as such, would not pass without objection in the trade or industry under the contract description.    62.  As a direct and proximate result of Defendant’s breach, Plaintiff and Members of  the Class and Subclass were injured because they paid money for Tula Cosmetics that would not  pass without objection in the trade or industry under the contract description.   A.  Probiotic Formulations    Breach Of Express Warranty  (On Behalf Of The Class And The New York Subclass)   Breach of Implied Warranty  (On Behalf Of The Class And The New York Subclass)   Violation Of New York’s Gen. Bus. Law § 350  (On Behalf Of The New York Subclass)   Violation Of New York’s Gen. Bus. Law § 349  (On Behalf Of The New York Subclass)  