13.  The front labels of the Products represent that the product has “No preservatives  when it actually contains the preservative citric acid.   14.  Citric acid is a preservative 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, oils extracted from spices, substances added to food by direct exposure thereof to wood  smoke, or chemicals applied for their insecticidal or herbicidal properties.”     15.  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.”1  The  scientific evidence and FDA statements cited below establish that citric acid tends to prevent or  retard the deterioration of food. This remains the case regardless of the subjective purpose for  1 http://www.macmillandictionary.com/us/dictionary/american/tend (last accessed 07/05/2017)2  http://www.fbcindustries.com/Citric_Acid.aspx (last accessed 07/05/2017)  8  which this substance is added to the Product. Citric acid does not fall into any of the regulatory  exemptions from the definition of a preservative.     16.   The FDA expressly classifies citric acid as a preservative in its Overview of Food  Ingredients, Additives, and Colors, on the FDA 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)    17.      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  labels fail to declare these preservatives with a description of their functions. 21  CFR 101.22.” See EXHIBIT A, FDA Warning Letter dated October 6, 2010  (emphasis added).    18.  Citric acid’s status as a preservative is also acknowledged by insiders in the  preservative manufacturing and distribution industries. FBC Industries, Inc., a manufacturer and  9  supplier of FCC grade citric acid additives, acidulants, buffering agents and preservatives for the  food and beverage industry describes citric acid’s function:  “Citric acid is the most commonly  used acidulant in the industry. As a food additive or food grade product, citric acid is used as a  flavoring and preservative. The buffering properties of citrates are used to control pH and flavor.”2  Plaintiff’s Claims Are Not Preempted By The FDCA   19.  Plaintiff’s claims are not preempted by the FDCA because the definition of  “preservative” as used herein is identical with that of the FDA (see above).  Moreover, FDA  regulations specifically note that claims like “contains no preservatives” are non-nutritive claims  that are not governed by 21 C.F.R. § 101.13.  See 21 C.F.R. § 101.65(b)(2).  Since the FDA has  not issued specific standards governing when “No Preservative” claims are either true or false,  such representations fall outside the ambit of FDA regulations.  Accordingly, Plaintiff’s claim  cannot possibly be preempted. See Bimont v. Unilever U.S., Inc., No. 14-CV-7749 (JPO), 2015  U.S. Dist. LEXIS 119908, at *6 (S.D.N.Y. Sep. 9, 2015) (“preemption does not preclude a state- law claim if the state requirement is outside the scope of the relevant federal requirements”).    Defendant’s Misrepresentations Are Material To A Reasonable Consumer And Relied Upon  By Plaintiff And The Class   20.  Plaintiff and Class members reasonably relied on Defendant’s representations that  the Product is free of preservatives.      21.  Defendant’s “No Preservatives” misrepresentation would deceive a reasonable  consumer.   22.  At the point of sale, Plaintiff and Class members did not know, and had no reason  to know, that the Product is misbranded as set forth herein, and would not have bought the Product  2 http://www.fbcindustries.com/Citric_Acid.aspx (last accessed 07/05/2017)  10  had they known the truth about it. “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). A representation that a product has “No  Preservatives” is material to a reasonable consumer when deciding to purchase it. Plaintiff did,  and a reasonable consumer would, attach importance to whether Defendant’s Product has “No  Preservatives” because it is common knowledge that consumers prefer to avoid foods with  potentially unhealthy additives (see consumer behavior research below).   Defendant Has An Intent To Mislead   23.  Defendant would not have included the representation on the front label of the  Product if it was not going to influence consumer behavior.    24.  By representing that the Product has “No Preservatives”, Defendant seeks to  capitalize on consumers’ preference for less processed foods 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 products labeled as being free  of preservatives.   25.  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).  11  Among the top claims free-from consumers deem most important are trans-fat-free  (78 percent) and preservative-free (71 percent).3   26.  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."4   27.  Given these trends, Defendant has a natural interest in misrepresenting its’ Product  as free of preservatives despite the presence of citric acid. The Product’s misrepresentation  provides a clear marketing advantage over competitors that do not engage in such deceptive  conduct.   28.  Defendant’s intent to mislead is proven by the labeling of its’ very own 8 oz.  Inglehoffer® Original Stone Ground Mustard in the glass jar (herein “comparison mustard”),  shown below. The comparison mustard is the exact same mustard as the Product, with the exact  same name and the exact same ingredients:  3 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)  4 http://www.alternet.org/food/8-food-trends-watch-2016 (last accessed 07/05/2017)   12  13   29.  Defendant’s comparison mustard rightfully does not bare the “No Preservatives”  misrepresentation given that it contains citric acid. The comparison mustard shows that Defendant  knows how to properly label its other Product, and therefore intends to mislead consumers with  the Product in order to boost sales.   30.  Defendant knows that its’ “No Preservatives” representation is false, and intends  that they be relied upon by Plaintiff and the Class. Upon information and belief, Defendant  employs food scientists who are familiar with the basic properties of citric acid.    14  Plaintiff and the Class Were Injured As The Result Of Defendant’s Deceptive Practices   31.  Plaintiff and the Class were injured when Defendant denied them the full benefit of  their bargain. They paid money for a Product that was represented to them as preservative-free,  and then received a Product that was preservative-laden, which has significantly less value.   Plaintiff and the Class were thus deprived of the benefit of their bargain. They would not have  purchased the Product, or would only have been willing to pay less for it, had they known the truth.  They were injured in an amount up to the purchase price, the difference between the actual value  of the Product and the value of the Product as misrepresented to them by Defendant, to be  determined by expert testimony at trial. Defendant’s very inclusion of “No Preservatives” on the  Product’s front labels is an acknowledgment that this increases the Products’ perceived value. See  Orlander v. Staples, Inc., 802 F.3d 289, 302 (2d Cir. 2015) (“the issue of ‘price premium’ was  relevant because it showed that plaintiffs paid more than they would have for the good but for the  deceptive practices of the defendant-sellers”); Kacocha v. Nestle Purina Petcare Co., No. 15-CV- 5489 (KMK), 2016 U.S. Dist. LEXIS 107097, at *51-52 (S.D.N.Y. Aug. 11, 2016) (“[I]n his  Complaint, Plaintiff seeks monetary damages on the grounds that he ‘would not have paid the  premium price he paid’ to buy the Products had he ‘known the truth.’…Case law makes clear that  this is sufficient at the motion-to-dismiss phase for a § 349 claim to survive.”); Koenig v. Boulder  Brands, Inc., 995 FSupp. 2d 274, 288-89 (S.D.N.Y. 2014) (Plaintiffs claim that, but for  Defendants' "unfair and deceptive practices," they—and the putative class—would not have  purchased, or paid a price premium for, Smart Balance. Compl. ¶¶ 7, 81. Indeed, Plaintiffs claim  that they paid price premiums specifically ‘based on Defendants' misrepresentations,’ and allege  that they deserve damages in the amount of either the purchase prices, or the price premiums, that  15  they paid for Smart Balance. Id. ¶ 81. Accordingly, the Court finds that Plaintiffs have adequately  alleged injury under GBL § 349…”)  32.   Plaintiff  QUIROZ brings this action as a class action pursuant to Rule 23 of the  Federal Rules of Civil Procedure on behalf of the following class (the “Nationwide Class”):  All persons or entities in the United States who made retail  purchases of the Products in the United States during the applicable  limitations period for personal consumption and not resale, and/or  such subclasses as the Court may deem appropriate. (the  “Nationwide Class”)  In the alternative, Plaintiff QUIROZ seeks to represent a class consisting of the following subclass:  All persons or entities in New York who made retail purchases of  the Products in New York during the applicable limitations period  for personal consumption and not resale, and/or such subclasses as  the Court may deem appropriate. (the “New York Class”)   33.  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 they have or  have had a controlling interest, and the judicial officer to whom this lawsuit is assigned.   34.  Plaintiff reserves the right to revise the Class definition based on facts learned in  the course of litigating this matter.   35.  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. The Classes are so numerous that individual joinder of all Class  members is impracticable.    16   36.  Common questions of law and fact arise from Defendant’s 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 is false and  misleading;  b.  whether Defendant engages in a marketing practice intended to deceive consumers  by labeling “No Preservatives” on a Product containing citric acid;  c.  whether Defendant deprived Plaintiff and the Classes of the benefit of their bargain  because the Product purchased is different than what Defendant warranted;  d.  whether Defendant deprived Plaintiff and the Classes of the benefit of their bargain  because the Product they purchased had less value than what was represented by  Defendant;  e.  whether Defendant caused Plaintiff and the Classes to purchase a substance that  was other than what was represented by Defendant;   f.  whether Defendant has been unjustly enriched at the expense of the Plaintiff and  other Class members by its misconduct;  g.  whether Defendant must disgorge any and all profits they have made as a result of  its misconduct; and  h.  whether Defendant should be barred from marketing the Product as having “No  Preservatives.”   37.  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 purchased Defendant’s Products and sustained similar injuries arising out of  17  Defendant’s conduct in violation of the law. 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 Classes are 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 Classes.  Plaintiff’s claims arise from the same practices and course of conduct that give rise to the claims  of the members of the Classes and are based on the same legal theories.   38.  Plaintiff will fairly and adequately represent and pursue the interests of the Classes.  Plaintiff understands the nature of her claims herein, has no disqualifying conditions, and will  vigorously represent the interests of the Classes. Neither Plaintiff nor Plaintiff’s counsel have any  interests that conflict with or are antagonistic to the interests of the Classes. Plaintiff has retained  highly competent and experienced class action attorneys to represent her interests and those of the  Classes. 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 Classes and will diligently discharge those duties by vigorously seeking the  maximum possible recovery for the Classes.   39.  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.  18   40.  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 refuses to act on grounds  generally applicable to the Classes, thereby making appropriate final injunctive or equitable relief  with respect to the Classes as a whole.   41.  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 Classes  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.   42.  The prosecution of separate actions by members of the Classes 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 Classes,  although certain Class members are not parties to such actions.   43.  Defendant’s conduct is generally applicable to the Classes as a whole and Plaintiff  seeks, inter alia, equitable remedies with respect to the Classes as a whole. As such, Defendant’s  systematic policies and practices make declaratory relief with respect to the Classes as a whole  appropriate.  19  44.  Plaintiff QUIROZ realleges and incorporates herein by reference the allegations  contained in all preceding paragraphs, and further alleges as follows:   45.  Plaintiff QUIROZ brings this claim on behalf of herself and the other members of  the Nationwide Class for an injunction for violations of New York’s Deceptive Acts or Practices  Law (“NY GBL§ 349”).   46.  Alternatively, should the Court not certify Plaintiff’s proposed Nationwide Class,  Plaintiff QUIROZ brings this claim individually and on behalf of the members of the New York  Class for an injunction for violations of New York’s Deceptive Acts or Practices Law (“NY GBL  § 349”).   47.  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.”   48.  Under the NY GBL § 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)).   20   49.  Any person who has been injured by reason of any violation of the NY GBL § 349  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  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.   50.  The practices employed by Defendant, whereby Defendant advertises, promotes,  and markets that its Product contains “No Preservatives” are unfair, deceptive, and misleading and  are in violation of the NY GBL § 349.   51.  The foregoing deceptive acts and practices are directed at consumers.   52.   Defendant should be enjoined from marketing its products as containing “No  Preservatives” as described above pursuant to NY GBL § 349.   53.  Plaintiff QUIROZ, on behalf of herself 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.  54.  Plaintiff QUIROZ realleges and incorporates herein by reference the allegations  contained in all preceding paragraphs, and further alleges as follows:  21   55.  Plaintiff QUIROZ brings this claim individually and on behalf of the other  members of the Nationwide Class for violations of NY GBL § 349.   56.  Alternatively, should the Court not certify Plaintiff’s proposed Nationwide Class,  Plaintiff QUIROZ brings this claim individually and on behalf of the other members of the New  York Class for Defendant’s violations of NY GBL § 349.   57.   Defendant’s 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.   58.  The practices of Defendant described throughout this Complaint, were specifically  directed to consumers and violate the NY GBL § 349 for, inter alia, the following reasons:  a. Defendant knowingly and falsely represents and advertises that the Product  contains “No Preservatives” with an intent to cause Plaintiff and members of the  Classes to believe that it does not contain  preservatives, when it actually contains  citric acid;   b. Defendant caused Plaintiff and the Classes to suffer a probability of confusion and  a misunderstanding of legal rights, obligations and/or remedies by and through its  conduct;  c. Defendant made material representations and statements of fact to Plaintiff and the  Classes that resulted in Plaintiff and the Classes reasonably believing the  represented or suggested state of affairs are what they actually were; and the  practices employed by Defendant, whereby Defendant advertises, promotes, and  22  markets that its Product contains “No Preservatives” is unfair, deceptive, and  misleading and are in violation of NY GBL § 349.   59.  Under the circumstances, Defendant’s conduct in employing these unfair and  deceptive trade practices was malicious, willful, wanton and outrageous such as to shock the  conscience of the community and warrant the imposition of punitive damages.   59. Plaintiff QUIROZ and members of the Classes have suffered an injury as a  result of Defendant’s false and misleading advertising.   24   60.  Defendant’s actions impact the public interest because Plaintiff and members of the  Classes were injured in exactly the same way as thousands of others purchasing the Products as a  result of and pursuant to Defendant’s generalized course of deception.   61.  The foregoing deceptive acts, and practices were directed at consumers.   62.  The foregoing deceptive acts, and practices caused Plaintiff and other Class  members to suffer actual damages in the form of, inter alia, monies spent to purchase the Product.  Plaintiff and other Class members are entitled to recover compensatory 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.  63.  Plaintiff QUIROZ realleges and incorporates by reference the allegations contained  in all preceding paragraphs, and further alleges as follows:   64.  Plaintiff QUIROZ brings this claim individually, as well as on behalf of members  of the Nationwide class, for violations of NY GBL § 350.  23   65.  Alternatively, should the Court not certify Plaintiff’s proposed Nationwide Class,  Plaintiff QUIROZ brings this claim individually and on behalf of the members of the New York  Class for violations of NY GBL § 350.   66.  Alternatively, should the Court not certify Plaintiff’s proposed Nationwide Class,  Plaintiff QUIROZ brings this claim individually and on behalf of the other members of the New  York Class for Defendant’s violations of NY GBL § 350.   67.  Defendant has been and/or is engaged in the “conduct of … business, trade or  commerce” within the meaning of N.Y. Gen. Bus. Law § 350.   68.  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).   69.  Defendant caused to be disseminated throughout New York, through advertising,  marketing and other publications, statements that are untrue or misleading.     70.  Defendant’s affirmative misrepresentation that the Product contain “No  Preservatives” is material and substantially uniform in content, presentation, and impact upon  consumers at large. Consumers purchasing the Product were, and continue to be, exposed to  Defendant’s material misrepresentations.    71.  Defendant has violated NY. Gen. Bus. Law § 350 because its’ “No Preservatives”  misrepresentations were material and likely to deceive a reasonable consumer.    72.   73.  Pursuant but not limited to N.Y. Gen. Bus. Law § 350-e, Plaintiff QUIROZ 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, any interest and  attorneys' fees and costs.  74.  Plaintiff realleges and incorporates herein by reference the allegations contained in  all preceding paragraphs, and further alleges as follows:   75.  Defendant intentionally makes materially false and misleading representations  regarding the composition of the Product.    76.  Plaintiff and members of the Classes reasonably relied on Defendant’s false and  misleading representations. They did not know, and had no reason to know, that the Product  contain a preservative, and they would not have purchased the Product had they known.      77.  Defendant intended that Plaintiff and the Classes rely on its misrepresentations.   78.  Plaintiff and members of the Classes have been injured as a result of Defendant’s  fraudulent conduct.   79.  Defendant is liable to Plaintiff and members of the Classes for damages sustained  as a result of Defendant’s fraud.   25  COMMON LAW FRAUD  (brought on behalf of the Nationwide Class, in conjunction with the substantively similar  common law of other states and the District of Columbia to the extent New York common  law is inapplicable to out-of-state Class members, or, in the alternative, on behalf of the  New York Class)   DAMAGES FOR VIOLATIONS OF NEW YORK GENERAL BUSINESS LAW § 349   (DECEPTIVE AND UNFAIR TRADE PRACTICES ACT)  (brought on behalf of the Nationwide Class, in conjunction with the substantively similar  consumer protection laws of other states and the District of Columbia to the extent New  York consumer protection laws are inapplicable to out-of-state Class members, or, in the  alternative, on behalf of the New York Class)   DAMAGES FOR VIOLATIONS OF NEW YORK GENERAL BUSINESS LAW § 350  (FALSE ADVERTISING LAW)   (brought on behalf of the Nationwide Class, in conjunction with the substantively similar  consumer protection laws of other states and the District of Columbia to the extent New  York consumer protection laws are inapplicable to out-of-state Class members, or, in the  alternative, on behalf of the New York Class)   Defendant Markets Their Product As Free of Preservatives Even Though It Contains The  Preservative Citric Acid   INJUNCTION FOR VIOLATIONS OF NEW YORK GENERAL BUSINESS LAW § 349  (DECEPTIVE AND UNFAIR TRADE PRACTICES ACT)  (brought on behalf of the Nationwide Class, in conjunction with the substantively similar  consumer protection laws of other states and the District of Columbia to the extent New  York consumer protection laws are inapplicable to out-of-state Class members, or, in the  alternative, on behalf of the New York Class)  