23.  Defendant manufactures, markets and sells the following misbranded Products  throughout the United States:  i.  Ricola Cherry Honey herb throat drops   ii.  Ricola Honey Lemon with Echinacea cough suppressant throat drops  iii.  Ricola Lemon Mint herb throat drops  iv.  Ricola Sugar-free Lemon Mint herb throat drops  v.  Ricola Mixed Berry with Vitamin C supplement drops  vi.  Ricola Sugar-free Green Tea with Echinacea cough suppressant throat drops  vii.  Ricola Sugar-free Swiss Cherry herb throat drops  ix.  Any other Ricola cough suppressant, supplement and herb throat drops with  misleading “Natural” claims.   24.  The Products are available at large supermarket chains and major retail outlets  throughout the United States, including but not limited to Whole Foods, Kroger, Food Lion,  Meijer, Costco Wholesale and Ralphs.   Defendant’s Natural Claims   25.  The term “Natural” only applies to products that contain no non-natural or  synthetic ingredients and/or consist entirely of ingredients that are only minimally processed.  Defendant deceptively markets the Ricola Herb Drop Products as “Naturally Soothing” when  they contain the synthetic ingredients Ascorbic Acid (Vitamin C), Citric Acid and Malic Acid,  10  none of which are extracted from citrica fruits but industrially synthesized via complex chemical  synthetic routes and thus cannot be considered “minimally processed.”   26.  Ascorbic Acid occurs naturally in certain foods as Vitamin C, or L-ascorbic acid.  However, Ascorbic Acid is produced commercially and used as a food additive. It is considered  to be synthetic by federal regulation. 7 C.F.R. § 205.605(b). Ascorbic Acid used in foods is not  naturally-occurring because it is synthetized through a process known as the Reichstein Process.  The Reichstein Process uses the following steps: (1) hydrogenation of D-glucose to D-sorbitol,  an organic reaction with nickel as a catalyst under high temperature and high pressure; (2)  Microbial oxidation or fermentation of sorbitol to L-sorbose with acetobacter at pH 4-6 and 30º  C; (3) protection of the 4 hydroxyl groups in sorbose by formation of the acetal with acetone and  an acid to Diacetone-L-sorbose (2,3:4,6-Diisopropyliden-α-L-sorbose); (4) Organic oxidation  with potassium permanganate followed by heating with water to yield 2-Keto-L-gulonic acid;  and (5) a ring-closing step or gamma lactonization with removal of water. In recent years,  Chinese chemists have developed a simplification of the Reichstein Process that substitutes  biological oxidation using genetically engineered microorganisms for chemical oxidation. This  manufacturing process places it outside of a reasonable consumer’s definition of “All Natural.”   27.  Citric Acid (2-hydroxy-propane-1,2,3-tricarboxylic acid) is a synthetic, non- natural ingredient. While the chemical’s name has the word “citric” in it, Citric Acid is no longer  extracted from the citrus fruit but industrially manufactured by fermenting certain genetically  mutant strains of the black mold fungus, Aspergillus niger.3 A technical evaluation report for the  substance citric acid compiled by the United States Department of Agriculture, Agricultural  Marketing Service (“USDA AMS”) for the National Organic Program classified Citric Acid as  3 See, e.g., Belén Max, et al., Biotechnological production of citric acid, BRAZILIAN JOURNAL OF  MICROBIOLOGY, 41.4 São Paulo (Oct./Dec. 2010).   11  “Synthetic Allowed”. See EXHIBIT B, Page 4. As one of the USDA AMS reviewers  commented,   “[Citric acid] is a natural[ly] occurring substance that commercially goes through  numerous chemical processes to get to [its] final usable form. This processing  would suggest that it be classified as synthetic.” Id. at 3.  The report further explains, under the “How Made” question, that citric acid is made –   “Traditionally by extraction from citrus juice, no longer commercially available.  It is now extracted by fermentation of a carbohydrate substrate (often molasses)  by citric acid bacteria, Aspergillus niger (a mold) or Candida guilliermondii (a  yeast). Citric acid is recovered from the fermentation broth by a lime and sulfuric  acid process in which the citric acid is first precipitated as a calcium salt and then  reacidulated with sulfuric acid.” Id. at 4.    28. Malic Acid is a synthetic compound. U.S. International Trade Commission, Synthetic  Organic Chemical Index, USTIC Pub. 2933 (Nov. 1995). It is synthetically produced by the  hydration of fumaric or maleic acid. 21 C.F.R. § 184.1069. Both fumaric acid and maleic acid  are hazardous substances. 40 C.F.R. 116.4. Malic Acid is not permitted in baby foods. 21 C.F.R.  § 184.1069(d). Malic Acid is a preservative.   29.  Because Ascorbic Acid (Vitamin C), Citric Acid and Malic Acid are synthetic  acids and cannot be reasonably considered natural ingredients, Defendant’s claim that the  Products are “Naturally Soothing” is false, deceptive, and misleading, and the Products are  misbranded under federal and state law. Defendant’s labeling as alleged herein is false and  misleading and was designed to increase sales of the Products at issue. Defendant’s  misrepresentations are part of its systematic labeling practice.   30.  Defendant’s misleading marketing campaign begins with its unsubstantiated and  well-promoted naturalness claims. Defendant’s Ricola Herb Drop Products are advertised as  “Naturally Soothing” on the packaging of the Products and their respective product pages on the  Ricola website. The “Naturally Soothing” claim is prominently represented in large font print at  12  the center of the packaging as the first thing a reasonable consumer who is looking to learn more  about the Products will see, as shown below:   31.  Defendant has already once changed the labeling on the Products in recent years  from “Natural” to “Naturally Soothing”. Please see EXHIBIT C for images of example  products bearing the old label.    32.  Defendant is well aware of consumer tendencies to seek out food products labeled  as “Natural” and takes advantage of them to mislead consumers. By engaging in this deceptive  scheme, Defendant wrongfully capitalized on and reaped enormous profits by playing on  consumers’ strong preference for food products made entirely of natural or minimally processed  ingredients, while forgoing the additional expense of actually providing products that are free of  non-natural, synthetic and/or chemically processed ingredients.   13  Defendant’s Natural Claims Violate Identical State and Federal Law   33.  Defendant’s labeling and advertising of the Ricola Herb Drop Products as  “Naturally Soothing” violate various state and federal laws against misbranding.    34.  The federal Food, Drug, and Cosmetic Act (the “FDCA”) provides that “[a] food  shall be deemed misbranded – (a) (1) its labeling is false or misleading in any particular.” 21  U.S.C. § 343 (a)(1).   35.  Defendant’s “Naturally Soothing” claim also violates various state laws against  misbranding which mirror federal law. New York, California and other state law broadly prohibit  the misbranding of food in language identical to that found in regulations promulgated pursuant  to the FDCA, 21 U.S.C. §§ 343 et seq.:   Pursuant to N.Y. Agm. Law § 201, “[f]ood shall be deemed to be misbranded: 1. If its  labeling is false or misleading in any particular… .”  Pursuant to California’s Sherman Food, Drug and Cosmetics Law, California Health and  Safety Code § 110660, “[a]ny food is misbranded if its labeling is false or misleading in  any particular.”   36.  Under the FDCA, the term “false” has its usual meaning of “untruthful,” while the  term “misleading” is a term of art. Misbranding reaches not only false claims, but also those  claims that might be technically true, although still misleading. If any one representation in the  labeling is misleading, the entire food is misbranded. No other statement in the labeling cures a  misleading statement. “Misleading” is judged in reference to “the ignorant, the unthinking and  the credulous who, when making a purchase, do not stop to analyze.” United States v. El-O- Pathic Pharmacy, 192 F.2d 62, 75 (9th Cir. 1951). Under the FDCA, it is not necessary to prove  that anyone was actually misled.  14  Definition of Natural   37.  The FDA did not intend to and has repeatedly declined to establish a final rule  with regard to a definition of the term “All Natural” in the context of food labeling. As such,  Plaintiff’s state consumer protection law claims are not preempted by federal regulations. See  Jones v. ConAgra Foods, Inc., 2012 WL 6569393, *6 (N.D. Cal. Dec. 17, 2012). Additionally,  the primary jurisdiction doctrine does not apply “because the FDA has repeatedly declined to  adopt formal rule-making that would define the word ‘natural.’” Id. at p. 8.   38.  The “FDA has not developed a definition for use of the term natural or its  derivatives,” but it has loosely defined the term “All Natural” as a product that “does not contain  added color, artificial flavors, or synthetic substances.” According to federal regulations, an  ingredient is synthetic if it is:  [a] substance that is formulated or manufactured by a chemical process or by a  process that chemically changes a substance extracted from naturally occurring  plant, animal, or mineral sources, except that such term shall not apply to  substances created by naturally occurring biological processes. 7 C.F.R. §205.2.   39.  Although there are no exact definitions of “Natural” in reference to food,  cosmetic or oral care ingredients, there are no reasonable definitions of “Natural” that include  ingredients that, even if sourced from “nature,” are subjected to extensive transformative  chemical processing before their inclusion in a product.  For example, the National Advertising  Division of the Better Business Bureau (“NAD”) has found that a “All Natural” ingredient does  not include one that, while “literally sourced in nature (as is every chemical substance), . . . is,  nevertheless subjected to extensive processing before metamorphosing into the” ingredient that  is included in the final product.  15  Plaintiffs were Injured as a Result of Defendant’s Misleading and Deceptive Conduct   40.  Plaintiffs and Class members read the labels on Defendant’s Products, including  statements making unlawful natural claims.   41.  Defendant’s labeling claims were a material factor in Plaintiffs’ and Class  members’ decisions to purchase the Products. Based on Defendant’s claims, Plaintiffs and Class  members believed that the Products were a better and healthier choice than other available throat  drop products.   42.  As a result of Defendant’s deceptive and misleading labeling, Plaintiffs and Class  members did not know that the Products are not “Naturally Soothing.” New York and California  state laws broadly prohibit the misbranding of food in language identical to that found in the  50.    Plaintiffs bring this action as a class action pursuant Rule 23 of the Federal Rules  of Civil Procedure on behalf of the following class (the “Class”):  All persons or entities in the United States who made retail  purchases of the Products during the applicable limitations period,  and/or such subclasses as the Court may deem appropriate.   The New York Class   51.  Plaintiff MINKER seeks to represent a class consisting of the following subclass  (the “New York Class”):  All New York residents who made retail purchases of the Products  during the applicable limitations period, and/or such subclasses as  the Court may deem appropriate.   17  The California Class   52.  Plaintiff LIU seeks to represent a class consisting of the following subclass (the  “California Class”):  All California residents who made retail purchases of the Products  during the applicable limitations period, and/or such subclasses as the  Court may deem appropriate.   The proposed Classes exclude current and former officers and directors of Defendant,  members of the immediate families of the officers and directors of Defendant, Defendant’s legal  representatives, heirs, successors, assigns, and any entity in which it has or has had a controlling  interest, and the judicial officer to whom this lawsuit is assigned.   53.  Plaintiffs reserve the right to revise the Class definition based on facts learned in  the course of litigating this matter.   54.  Numerosity: This action has been brought and may properly be maintained as a  class action against Defendant 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  Plaintiffs at this time, Plaintiffs are informed and believe that there are hundreds of thousands of  members in the Nationwide Class, New York Class and California Class. Based on sales of the  Products, it is estimated that each Class is composed of more than 1,000 persons. Furthermore,  even if subclasses need to be created for these consumers, it is estimated that each subclass  would have thousands of members. The persons in each of the Classes are so numerous that  joinder of all such persons is impracticable and the disposition of their claims in a class action  rather than in individual actions will benefit the parties and the courts.   55.  Common Questions Predominate: Questions of law and fact arise from  Defendant’s conduct described herein. Such questions are common to all Classes because each  Class member’s claim derives from the same false, misleading and deceptive misconduct. The  18  common questions of law and fact involved predominate over any questions affecting only  Plaintiffs or individual Class members. Thus, proof of a common or single set of facts will  establish the right of each member of the Classes to recover. Among the questions of law and  fact common to the Classes are:   a. whether labeling “Naturally Soothing” on Products containing one or more  highly processed ingredients, including Ascorbic Acid (Vitamin C), was false  and misleading;  b. whether Defendant engaged in a marketing practice intended to deceive  consumers by labeling Products as “Naturally Soothing,” even though such  Products contained the synthetic, highly processed ingredients Ascorbic Acid  (Vitamin C), Citric Acid and Malic Acid;  c. whether Defendant caused Plaintiffs and the Class to purchase Products that  were artificial, synthetic, or otherwise unnatural;  d. whether Defendant should be enjoined from marketing the Products as  “Naturally Soothing” and whether Defendant should be required to disclose the  fact that one or more ingredients were synthetic;  e. whether Defendant’s website and other media representations violate federal,  state or common law by misleading consumers;  f. whether Defendant deprived Plaintiffs and the Class of the benefit of the bargain  because the Products purchased were different than what Defendant warranted;  g. whether Defendant deprived Plaintiffs and the Class of the benefit of the bargain  because the Products they purchased had less value than what was represented by  Defendant;  19  h. whether Defendant has been unjustly enriched at the expense of Plaintiffs and  other Class members by its misconduct; and  i. whether Defendant must disgorge any and all profits it has made as a result of its  misconduct.   56.  Typicality: Plaintiffs’ claims are typical of those of the Class members because  Plaintiffs and the other Class members sustained damages arising out of the same wrongful  conduct, as detailed herein. Plaintiffs purchased the Products during the Class Period and  sustained similar injuries arising out of Defendant’s conduct in violation of the consumer  protection laws of each of the fifty states and the District of Columbia. Defendant’s 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  Defendant’s wrongful misconduct. In addition, the factual underpinning of Defendant’s  misconduct is common to all Class members and represents a common thread of misconduct  resulting in injury to all members of the Class. Plaintiffs’ 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.   57.  Adequacy: Plaintiffs will fairly and adequately represent and pursue the interests  of the Class and have retained competent counsel experienced in prosecuting nationwide class  actions.  Plaintiffs understand the nature of their claims herein, have no disqualifying conditions  and will vigorously represent the interests of the Class.   Neither Plaintiffs nor Plaintiffs’ counsel  have any interests that conflict with or are antagonistic to the interests of the Class.  Plaintiffs  have retained highly competent and experienced class action attorneys to represent their interests  and those of the Class.  Plaintiffs and Plaintiffs’ counsel have the necessary financial resources to  20  adequately and vigorously litigate this class action, and Plaintiffs 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.   58.  Superiority: 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 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.   59.  The prerequisites to maintaining a class action for injunctive relief or equitable  relief pursuant to Rule 23(b)(2) are met, as Defendant has 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.    60.  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.   61.  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 Defendant.  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.   21   62.  Defendant’s conduct is generally applicable to the Class as a whole and Plaintiffs  seek, inter alia, equitable remedies with respect to the Class as a whole. As such, Defendant’s  systematic policies and practices make declaratory relief with respect to the Class as a whole  appropriate.   63.  Plaintiff MINKER realleges and incorporates herein by reference the allegations  contained in all preceding paragraphs, and further alleges as follows:   64.  Plaintiff MINKER brings this claim individually and on behalf of the other  members of the New York Class for an injunction for violations of New York’s Deceptive Acts  or Practices Law, Gen. Bus. Law (“NY GBL”) § 349.    65.  NY GBL § 349 provides that “deceptive acts or practices in the conduct of any  business, trade or commerce or in the furnishing of any service in this state are . . . unlawful.”    66.  Under the § 349, it is not necessary to prove justifiable reliance.  (“To the extent  that the Appellate Division order imposed a reliance requirement on General Business Law [§]  349 … claims, it was error.  Justifiable reliance by the plaintiff is not an element of the statutory  claim.”  Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941 (N.Y. App. Div. 2012)  (internal citations omitted)).    67.  Any person who has been injured by reason of any violation of the NY GBL may  bring an action in their own name to enjoin such unlawful act or practice, an action to recover  their actual damages or fifty dollars, whichever is greater, or both such actions. The court may, in  its discretion, increase the award of damages to an amount not to exceed three times the actual  22  damages up to one thousand dollars, if the court finds the Defendant willfully or knowingly  violated this section. The court may award reasonable attorney's fees to a prevailing plaintiff.   68.  The practices employed by Defendant, whereby Defendant labeled, packaged, and  marketed their Products as “Naturally Soothing” were unfair, deceptive, and misleading and are  in violation of the NY GBL § 349.   69.  The foregoing deceptive acts and practices were directed at customers.   70.   Defendant should be enjoined from labeling its Products as “Naturally Soothing”,  as described above pursuant to NY GBL § 349.   71.  Plaintiff MINKER, on behalf of himself and all others similarly situated,  respectfully demands a judgment enjoining Defendant’s conduct, awarding costs of this  proceeding and attorneys’ fees, as provided by NY GBL, and such other relief as this Court  deems just and proper.   72.  Plaintiff MINKER realleges and incorporates herein by reference the allegations  contained in all preceding paragraphs, and further alleges as follows:   73.  By the acts and conduct alleged herein, Defendant committed unfair or deceptive  acts and practices by misbranding their Products as “Naturally Soothing.”   74.  The practices employed by Defendant, whereby Defendant advertised, promoted,  and marketed that their Products are “Naturally Soothing” were unfair, deceptive, and misleading  and are in violation of NY GBL § 349.   75.  The foregoing deceptive acts and practices were directed at consumers.  23   76.  Plaintiffs and the other Class members suffered a loss as a result of Defendant’s  deceptive and unfair trade acts. Specifically, as a result of Defendant’s deceptive and unfair trade  acts and practices, Plaintiffs and the other Class members suffered monetary losses associated  with the purchase of Products, i.e., the purchase price of the Product and/or the premium paid by  Plaintiffs and the Class for said Products.  77.  Plaintiff LIU realleges and incorporates herein by reference the allegations  contained in all preceding paragraphs, and further alleges as follows:   78.  Plaintiff LIU brings this claim individually and on behalf of the other members of  the California Class for Defendant’ violations of California’s Consumer Legal Remedies Act  (“CLRA”), Cal. Civ. Code § 1761(d).    79.  Plaintiff LIU and California Class members are consumers who purchased the  Products for personal, family or household purposes. Plaintiff LIU and the California Class  members are “consumers” as that term is defined by the CLRA in Cal. Civ. Code § 1761(d).  Plaintiff LIU and the California Class members are not sophisticated experts with independent  knowledge of corporate branding, labeling and packaging practices.    80.  Products that Plaintiff LIU and other California Class members purchased from  Defendant were “goods” within the meaning of Cal. Civ. Code § 1761(a).   81.  Defendant’s actions, representations, and conduct have violated, and continue to  violate the CLRA, because they extend to transactions that intended to result, or which have  resulted in, the sale of goods to consumers.  24   82.  Defendant  violated  federal  and  California  law  because  Defendant’s  representations in labeling, advertising, and marketing its Products as “Naturally Soothing” were  unfair, deceptive, and misleading.    83.  California’s Consumers Legal Remedies Act, Cal. Civ. Code § 1770(a)(5),  prohibits “[r]epresenting that goods or services have sponsorship, approval, characteristics,  ingredients, uses or benefits which they do not have or that a person has a sponsorship, approval,  status, affiliation, or connection which he or she does not have.” By engaging in the conduct set  forth herein, Defendant violated and continues to violate Section 1770(a)(5) of the CLRA,  because Defendant’s conduct constitutes unfair methods of competition and unfair or fraudulent  acts or practices, in that it misrepresents that the Products have characteristics, ingredients, or  benefits which they do not have.   84.  Cal. Civ. Code § 1770(a)(9) further prohibits “[a]dvertising goods or services  with intent not to sell them as advertised.” By engaging in the conduct set forth herein,  Defendant violated and continues to violate Section 1770(a)(9), because Defendant’s conduct  constitutes unfair methods of competition and unfair or fraudulent acts or practices, in that it  advertises goods with the intent not to sell the goods as advertised.   85.  Plaintiff LIU and the California Class members are not sophisticated experts  about the corporate branding, labeling and packaging practices. Plaintiff LIU and the California  Class acted reasonably when they purchased the Products based on their belief that Defendant’s  representations were true and lawful.   86.  Plaintiff LIU and the California Class suffered injuries caused by Defendant  because (a) they would not have purchased the Products on the same terms absent Defendant’s  illegal and misleading conduct as set forth herein; (b) they paid a price premium for the Products  25  due to Defendant’s misrepresentations that its Products were “Naturally Soothing”; and (c) the  Products did not have the ingredients, characteristics or benefits as promised.   87.  On or about September 11, 2015, prior to filing this action, a CLRA notice letter  was served on Defendant which complies in all respects with California Civil Code § 1782(a).  Plaintiff LIU sent Defendant, RICOLA USA, INC., on behalf of herself and the proposed Class,  a letter via certified mail, return receipt requested, advising Defendant that they are in violation  of the CLRA and demanding that they cease and desist from such violations and make full  restitution by refunding the monies received therefrom. A true and correct copy of Plaintiff  LIU’s letter is attached hereto as EXHIBIT D.   88.  Wherefore, Plaintiff LIU seeks damages, restitution, and injunctive relief for these  violations of the CLRA.  89.  Plaintiff LIU realleges and incorporates herein by reference the allegations  contained in all preceding paragraphs, and further alleges as follows:   90.  Plaintiff LIU brings this claim individually and on behalf of the members of the  proposed California Class for Defendant’s violations of California’s Unfair Competition Law,  Cal. Bus. & Prof. Code §§ 17200, et seq.   91.  The UCL provides, in pertinent part: “Unfair competition shall mean and include  unlawful, unfair or fraudulent business practices and unfair, deceptive, untrue or misleading  advertising ….”   26   92.  Defendant  violated  federal  and  California  law  because  Defendant’s  representations in labeling, advertising, and marketing its Products as “Naturally Soothing” were  unfair, deceptive, and misleading.    93.  Defendant’s business practices, described herein, violated the “unlawful” prong of  the UCL by violating the federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 343 et. seq., 21  U.S.C. §§ 343(a)(1), 343(k); N.Y. Agm. Law § 201; California Health and Safety Code §§  110660, 110740, the CLRA, and other applicable law as described herein.   94.  Defendant’s business practices, described herein, violated the “unfair” prong of  the UCL in that their conduct is substantially injurious to consumers, offends public policy, and  is immoral, unethical, oppressive, and unscrupulous, as the gravity of the conduct outweighs any  alleged benefits. Defendant’s advertising is of no benefit to consumers.    95.  Defendant violated the “fraudulent” prong of the UCL by misleading Plaintiff  LIU and the California Class to believe that the “Naturally Soothing” representation made about  the Products were lawful, true and not intended to deceive or mislead the consumers.   96.  Plaintiff LIU and the California Class members are not sophisticated experts  about the corporate branding, labeling, and packaging practices of the Products. Plaintiff LIU  and the California Class acted reasonably when they purchased the Products based on their belief  that Defendant’s representations were true and lawful.   97.  Plaintiff LIU and the California Class lost money or property as a result of  Defendant’s UCL violations because (a) they would not have purchased the Products on the  same terms absent Defendant’s illegal conduct as set forth herein, or if the true facts were known  concerning Defendant’s representations; (b) they paid a price premium for the Products due to  27  Defendant’s misrepresentations; and (c) the Products did not have the characteristics, benefits, or  ingredients as promised.  98.  Plaintiff LIU realleges and incorporates herein by reference the allegations  contained in all preceding paragraphs, and further alleges as follows:   99.  Plaintiff LIU brings this claim individually and on behalf of the members of the  proposed California Class for Defendant’s violations of California’s False Advertising Law  (“FAL”), Cal. Bus. & Prof. Code §§ 17500, et seq.  100.  Under the FAL, the State of California makes it “unlawful for any person to make  or disseminate or cause to be made or disseminated before the public in this state, ... in any  advertising device ... or in any other manner or means whatever, including over the Internet, any  statement, concerning ... personal property or services, professional or otherwise, or performance  or disposition thereof, which is untrue or misleading and which is known, or which by the  exercise of reasonable care should be known, to be untrue or misleading.”  101.  Defendant engaged in a scheme of offering misbranded Products for sale to  Plaintiff LIU and the California Class members by way of making false and misleading  representations that such Products were “Naturally Soothing” on the Products’ packaging,  labeling, and website. Such practice misrepresented the characteristics, benefits and ingredients  of the misbranded Products. Defendant’s advertisements and inducements were made in  California and come within the definition of advertising as contained in Bus. & Prof. Code §  17500, et seq. in that the product packaging was intended as inducements to purchase  28  Defendant’s Products. Defendant knew that these statements were unauthorized, inaccurate, and  misleading.  102.  Defendant  violated  federal  and  California  law  because  Defendant’s  representations in labeling, advertising, and marketing its Products “Naturally Soothing” were  unfair, deceptive, and misleading.   103.  Defendant violated § 17500, et seq. by misleading Plaintiff LIU and the California  Class to believe that the “Naturally Soothing” representations made about the Products were true  as described herein.  104.  Defendant knew or should have known, through the exercise of reasonable care  that the Products were and continue to be misbranded, and that its representations about the  naturalness of the Products were untrue and misleading.  105.  Plaintiff LIU and the California Class lost money or property as a result of  Defendant’s FAL violations because (a) they would not have purchased the Products on the same  terms absent Defendant’s illegal conduct as set forth herein, or if the true facts were known  concerning Defendant’s representations; (b) they paid a price premium for the Products due to  Defendant’s misrepresentations; and (c) the Products did not have the characteristics, benefits, or  ingredients as promised.  BREACH OF EXPRESS WARRANTIES  (All States)  114.  Plaintiffs reallege and incorporate herein by reference the allegations contained in  all preceding paragraphs, and further allege as follows:  115.  Defendant provided Plaintiffs and other members of the Class with written  express warranties, including, but not limited to, warranties that their Products are “Naturally  Soothing”.   116.  This breach resulted in damages to Plaintiffs and the other members of the Class  who bought Defendant’s Products but did not receive the goods as warranted in that the Products  were not as healthy nor as pure as they appear to be.  117.  As a proximate result of Defendant’s breach of warranties, Plaintiffs and the other  Class members have suffered damages in an amount to be determined by the Court and/or jury,  in that, among other things, they purchased and paid for Products that did not conform to what  Defendant promised in their promotion, marketing, advertising, packaging and labeling, and they  were deprived of the benefit of their bargain and spent money on products that did not have any  value or had less value than warranted or products that they would not have purchased and used  had they known the true facts about them.  31  Defendant’s Products   INJUNCTION FOR VIOLATIONS OF NEW YORK GENERAL BUSINESS LAW § 349  (DECEPTIVE AND UNFAIR TRADE PRACTICES ACT)   NEGLIGENT MISREPRESENTATION  (All States)  106.  Plaintiffs reallege and incorporate herein by reference the allegations contained in  all preceding paragraphs, and further allege as follows:  107.  Defendant, directly or through its agents and employees, made false  representations, concealments, and nondisclosures to Plaintiffs and members of the Class.  29  108.  In making the false, misleading, and deceptive representations and omissions,  Defendant knew and intended that consumers would pay a premium for Products labeled as  “Naturally Soothing” over comparable products that are not so labelled, furthering Defendant’s  private interest of increasing sales for its Products and decreasing the sales of products that are  truthfully offered as “Naturally Soothing” by Defendant’s competitors, or those that do not claim  to be “Naturally Soothing”.  109.  As an immediate, direct, and proximate result of Defendant’s false, misleading,  and deceptive representations and omissions, Defendant injured Plaintiffs and the other Class  members in that they paid a premium price for Products that were not as represented.  110.  In making the representations of fact to Plaintiffs and members of the Class  described herein, Defendant has failed to fulfill their duties to disclose the material facts set forth  above. The direct and proximate cause of this failure to disclose was Defendant’ negligence and  carelessness.  111.  Defendant, in making the misrepresentations and omissions, and in doing the acts  alleged above, knew or reasonably should have known that the representations were not true.  Defendant made and intended the misrepresentations to induce the reliance of Plaintiffs and  members of the Class.  112.  Plaintiffs and members of the Class relied upon these false representations and  nondisclosures by Defendant when purchasing the Products, upon which reliance was justified  and reasonably foreseeable.  113.  As a result of Defendant’s wrongful conduct, Plaintiffs and members of the Class  have suffered and continue to suffer economic losses and other general and specific damages,  including but not limited to the amounts paid for the Products and any interest that would have  30  been accrued on those monies, all in an amount to be determined according to proof at time of  trial.    The Nationwide Class   UNJUST ENRICHMENT  (All States)  118.  Plaintiffs reallege and incorporate herein by reference the allegations contained in  all preceding paragraphs, and further allege as follows:  119.  As a result of Defendant’s deceptive, fraudulent and misleading labeling,  packaging, advertising, marketing and sales of Products, Defendant was enriched, at the expense  of Plaintiffs and members of the Class, through the payment of the purchase price for  Defendant’s Products.  120.  Plaintiffs and members of the Class conferred a benefit on Defendant through  purchasing the Products, and Defendant has knowledge of this benefit and have voluntarily  accepted and retained the benefits conferred on it.  121.  Defendant will be unjustly enriched if it is allowed to retain such funds, and each  Class member is entitled to an amount equal to the amount they enriched Defendant and for  which Defendant has been unjustly enriched.  122.  Under the circumstances, it would be against equity and good conscience to  permit Defendant to retain the ill-gotten benefits that they received from Plaintiffs, and all others  similarly situated, in light of the fact Defendant have misrepresented that the Products are  “Naturally Soothing” when in fact, the Products contain the synthetic, unnatural ingredients  Ascorbic Acid (Vitamin C), Citric Acid and Malic Acid.  123.  Defendant profited from its unlawful, unfair, misleading, and deceptive practices  and advertising at the expense of Plaintiffs and Class members, under circumstances in which it  would be unjust for Defendant to be permitted to retain said benefit.   32  124.  Plaintiffs have standing to pursue this claim as Plaintiffs have suffered injury in  fact and has lost money or property as a result of Defendant’s actions, as set forth herein.  Defendant is aware that the claims and/or omissions that it made about the Products are false,  misleading, and likely to deceive reasonable consumers, such as Plaintiffs and members of the  Class.  125.  Plaintiffs and Class members do not have an adequate remedy at law against  Defendant (in the alternative to the other causes of action alleged herein).  126.  Accordingly, the Products are valueless such that Plaintiffs and Class members  are entitled to restitution in an amount not less than the purchase price of the Products paid by  Plaintiffs and Class members during the Class Period.  127.  Plaintiffs and Class members are entitled to restitution of the excess amount paid  for the Products, over and above what they would have paid if the Products had been adequately  advertised, and Plaintiffs and Class members are entitled to disgorgement of the profits  Defendant derived from the sale of the Products.  VIOLATIONS OF CALIFORNIA’S CONSUMER LEGAL REMEDIES ACT,  Cal. Civ. Code § 1750, et seq.   VIOLATION OF CALIFORNIA’S UNFAIR COMPETITION LAW,  California Business & Professions Code §§ 17200, et seq.   VIOLATION OF CALIFORNIA’S FALSE ADVERTISING LAW,  California Business & Professions Code §§ 17500, et seq.   VIOLATIONS OF NEW YORK GENERAL BUSINESS LAW § 349   (DECEPTIVE AND UNFAIR TRADE PRACTICES ACT)  