(Breach of Implied Warranty)   (Fraud)   (Strict Liability – Failure to Warn)   (Unjust Enrichment)   (Violations of California Business & Professions Code §17200, et seq.,  Based on Commission of Unlawful Acts)   (Violation of California Business & Professions Code § 17200 et seq.,  Based on Fraudulent Acts and Practices)   (Violations of California Business & Professions Code §17200, et seq.,  Based on Unfair Acts and Practices)   11.  The People of the State of California declared by initiative under Proposition 65  their right “[t]o be informed about exposures to chemicals that cause cancer, birth defects, or other  reproductive harm.” Proposition 65, § 1(b).  To effectuate this goal, California’s Proposition 65,  Health & Safety Code § 25249.5, et seq., prohibits exposing people to chemicals listed by the State  of California as known to cause cancer, birth defects or other reproductive harm above certain  levels without a “clear and reasonable warning,” unless the business responsible for the exposure  can prove that it fits within a statutory exemption.   24.  Plaintiff seeks to represent a class defined as all persons in the United States who  purchased the Vega Products (the “Class”).  Excluded from the Class are persons who made such  purchases for purpose of resale.   25.  Plaintiff also seeks to represent a Subclass of all Class Members who purchased the  Vega Products in California (the “California Subclass”).   26.  At this time, Plaintiff does not know the exact number of members of the Class;  however, given the nature of the claims and the number of retail stores in the United States selling  the Vega Products, Plaintiff believes that Class members are so numerous that joinder of all  members is impracticable.   33.  Plaintiff incorporates by reference the foregoing paragraphs of this Complaint as if  fully stated herein and, to the extent necessary, plead this cause of action in the alternative.   34.  Plaintiff brings this claim individually and on behalf of the members of the  California Subclass under California law.   35.  Under California Business & Professions Code §17200, any business act or practice  that is likely to deceive members of the public constitutes a fraudulent business act or practice.   36.  Defendants have engaged, and continues to engage, in conduct that is likely to  deceive members of the public.  This conduct includes, but is not limited to, failing to disclose that  the Vega Products contain heightened levels of lead and cadmium.   37.  After reviewing the packaging for a Vega Product, Plaintiff purchased the Vega  Product in reliance on Defendants’ omissions and/or representations.  Plaintiff would not have  purchased the Products at all, but for Defendants’ false promotion of the Vega Products. Plaintiff  and the Subclass have all paid money for the Vega Products. However, Plaintiff and the Subclass  did not obtain the full value or any value of the advertised products due to Defendants’  misrepresentations and/or omissions regarding the heightened levels of lead and cadmium.   Accordingly, Plaintiff and the Subclass have suffered injury in fact and lost money or property as a  direct result of Defendants’ misrepresentations and material omissions.   38.  By committing the acts alleged above, Defendants have engaged in fraudulent  business acts and practices, which constitute unfair competition within the meaning of California  Business & Professions Code §17200.   41.  Plaintiff incorporates by reference the foregoing paragraphs of this Complaint as if  fully stated herein and, to the extent necessary, plead this cause of action in the alternative.   42.  Plaintiff brings this claim individually and on behalf of the members of the  California Subclass against Defendants.   43.  The violation of any law constitutes an unlawful business practice under California  Business & Professions Code §17200.   44.  Defendants have violated §17200’s prohibition against engaging in unlawful acts  and practices by, inter alia, making the representations and omissions of material facts, as set forth  more fully herein, and violating California Civil Code §§1572, 1573, 1709, 1710, 1711, 1770,  California Business & Professions Code §17200 et seq., California Health & Safety Code §110660,  21 U.S.C. §321, and by violating the common law.    45.  By violating these laws, Defendants have engaged in unlawful business acts and  practices, which constitute unfair competition within the meaning of Business & Professions Code  §17200.    49.  Plaintiff incorporates by reference the foregoing paragraphs of this Complaint as if  fully stated herein and, to the extent necessary, plead this cause of action in the alternative.   50.  Plaintiff brings this claim individually and on behalf of the members of the  California Subclass against Defendants.   51.  Under Business & Professions Code §17200, any business act or practice that is  unethical, oppressive, unscrupulous, and/or substantially injurious to consumers, or that violates a  legislatively declared policy, constitutes an unfair business act or practice.   52.  Defendants have engaged, and continue to engage, in conduct which is immoral,  unethical, oppressive, unscrupulous, and/or substantially injurious to consumers.  This conduct  includes failing to disclose that the Vega Products contain heightened levels of lead and cadmium.   53.  Defendants have engaged, and continue to engage, in conduct that violates the  legislatively declared policies of: (1) California Civil Code §§1572, 1573, 1709, 1710, 1711  against committing fraud and deceit; (2) California Civil Code §1770 against committing acts and  practices intended to deceive consumers regarding the representation of goods in certain  particulars; (3) California Health & Safety Code §110660 and 21 U.S.C. §321 against misbranding  food; and (4) Proposition 65. Defendants gain an unfair advantage over its competitors, whose  labeling, advertising, and marketing for other similar products must comply with these laws.   68.  Plaintiff incorporates by reference the foregoing paragraphs of this Complaint as if  fully stated herein and, to the extent necessary, plead this cause of action in the alternative.   69.  Plaintiff brings this claim individually and on behalf of the members of the Class  against Defendants.   70.  The Uniform Commercial Code §2-314 provides that unless excluded or modified, a  warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a  merchant with respect to goods of that kind.   71.  Defendants manufactured, marketed, and sold the Vega Products and represented  that the Vega Products were fit for consumption by consumers.  Contrary to such representations,  Defendants failed to disclose that the Vega Products were not fit for consumption as they contain  heightened levels of lead and cadmium, toxic heavy metals known by the State of California to  cause cancer and reproductive harm.   79.  Plaintiff incorporates by reference the foregoing paragraphs of this Complaint as if  fully stated herein and, to the extent necessary, plead this cause of action in the alternative.   80.  Defendants manufactured, marketed, sold, and/or distributed the Vega Products to  consumers.   81.  The Vega Products that Defendants manufactured, marketed, sold, and/or  distributed were defective in design and manufacturing.  Further, the Vega Products were defective  when they left the control of the Defendants such that: (1) the Vega Products had heightened  amounts of lead and cadmium; and (2) they were unreasonably dangerous, more dangerous than an  ordinary consumer would expect, as they contain toxic heavy metals   86.  Plaintiff incorporates by reference the foregoing paragraphs of this Complaint as if  fully stated herein and, to the extent necessary, plead this cause of action in the alternative.   87.  Plaintiff bring this claim individually and on behalf of members of the Class and  against Defendants.   88.  As discussed above, Defendants failed to disclose to class members that use of Vega  Products would expose Plaintiff and other members of the Class to heightened levels of lead and  cadmium.  Defendant also misrepresented that the Vega Products were healthy.    89.  The false and misleading representations and omissions were made with knowledge  of their falsehood.   92.  Plaintiff incorporates by reference the foregoing paragraphs of this Complaint as if  fully stated herein and, to the extent necessary, plead this cause of action in the alternative.   93.  Plaintiff bring this claim individually and on behalf of members of the Class and  against Defendants.   94.  Plaintiff and Class members conferred benefits on Defendants by purchasing Vega  Products.   95.  Defendants has knowledge of such benefits.    96.  Defendants have been unjustly enriched in retaining the revenues derived from  Plaintiff’s and Class members’ purchases of Vega Products.  Retention of those moneys under  these circumstances is unjust and inequitable because Defendants failed to disclose that the Vega  Products contain heightened levels of lead and cadmium, in violation of Proposition 65.   97.  Because Defendants’ retention of the non-gratuitous benefits conferred on it by  Plaintiff and Class members is unjust and inequitable, Defendants must pay restitution to Plaintiff  and the Class members for their unjust enrichment, as ordered by the Court.  A.  Lead and Cadmium are Toxic Heavy Metal that Increase Cancer Risks  and Cause Reproductive Harm  