1.0 to 2.0 kcal/g less than sucrose or other carbohydrates, and since tolerance for sugar  alcohol intake is limited, their impact on overall energy balance is likely to be, at most,  approximately 20 to 40 kcal/day.   Thomas Wolever, M.D. Ph.D., “Sugar Alcohol and Diabetes: A Review,” Canadian Journal of  Diabetes 2002; 26(4): 356-362.   10.  Defendant knowingly misleads consumers.  As a leading low-carbohydrate lifestyle  company, Atkins prominently touts the supposedly low (or zero) carb benefits of its products.  But  the company touts “net” carbs, a misleading term that subtracts sugar alcohols.  Sugar alcohols  have a carbohydrate impact that should be included in any carbohydrate calculation.    11.  Atkins made these false, misleading statements to deceive consumers into  purchasing its products under the belief that they are extremely low in carbohydrates, when, in  fact, they are not.    12.  Defendant Atkins is the eponymous company formed by the late Dr. Robert Atkins  (hereinafter “Dr. Atkins”) to promote the sale of books and food items related to the “Atkins Diet,”  a low- to zero-carbohydrate diet.    13.  To follow the Atkins Diet, users must forsake carbs which are present in most  processed foods in the average American’s diet. In 1999, at the time the Atkins Diet was gaining  sweeping popularity, the late Dr. Atkins informed adherents that the most popular artificial  sweeteners that American manufacturers use to replace conventional sugars were not approved for  use in the Atkins Diet.  4   14.  Dr. Atkins wrote, “Sweeteners such as sorbitol, mannitol, and other hexitols [i.e.,  sugar alcohols] are not allowed.” See Robert C. Atkins, M.D., Dr. Atkins’ New Diet Revolution  (Rev.) at p. 100 (1999).   15.  In 2002, Dr. Atkins revised this prohibition.  He stated, “certain sugar alcohols such  as maltitol do not affect blood sugar and are acceptable.” Robert C. Atkins, M.D., Dr. Atkins’ New  Diet Revolution (3rd ed.) at p. 112 (2002).    16.  What changed? Between 1999 and 2002, Atkins had established a growing line of  food products that included sugar alcohols, including the products at issue in this case.  B. Atkins’ Specific Claims Regarding “Net Carbs”   17.  Atkins’ website at www.atkins.com explains its definition of “net carbs” as “the  total carbohydrate content of the food minus the fiber content and sugar alcohols.” It further claims,  “The Net Carbs number reflects the grams of carbohydrate the significantly impact your blood  sugar level and therefore are the only carbs you need to count when you do Atkins.”    18.  Atkins claims its “Net Carb” calculation is based on “science.”   19.  Atkins further claims:  Net Carbs are the carbohydrates that significantly impact the blood-sugar  level; they’re the only carbs that count when following Atkins. The good  news is that the grams of carbohydrate in fiber, glycerine, and sugar  alcohols don’t break down and convert to blood sugar and need not be  counted by people on the ANA. … So Net Carbs represent the number of  grams of total carbohydrate minus those that do not impact blood sugar.1   1   See http://www.atkins.com/Science/Articles---Library/Carbohydrates/The-Blood-Sugar- Roller-Coaster--Excess-Carbs,-Exce.aspx  5   20.  Atkins manufactures, distributes, markets, advertises, and sells products containing  sugar alcohols as replacements for ordinary carbohydrates that it claims do not impact blood sugar  or have any carbohydrate impact.    21.  Maltitol is the sugar alcohol of Atkins’ choice. For example, it is a leading  ingredient in the following Atkins’ products: (a) Blueberry Greek Yogurt Bar; (b) Chocolate  Peanut Butter Pretzel Bar; (c) Strawberry Almond Bar; (d) Cinnamon Bun Bar; (e) Chocolate Chip  Granola Bar; (f) Chocolate Peanut Butter Bar; (g) Cookies n’ Crème Bar; (h) Mudslide Bar; (i)  Chocolate Chip Cookie Dough Bar; (j) Triple Chocolate Bar; (k) Caramel Chocolate Peanut  Nougat Bar; (l) Caramel Double Chocolate Crunch Bar; (m) Cashew Trail Mix Bar; (n) Coconut  Almond Delight Bar; (o) Dark Chocolate Almond Coconut Crunch Bar; (p) Caramel Chocolate  Nut Roll; (q) Dark Chocolate Decadence Bar; (r) Chocolate Chip Crisp Bar; (s) Chocolate  Hazelnut Bar; (t) Chocolate Oatmeal Fiber Bar; (u) Cranberry Almond Bar; (v) Chocolate Covered  Almonds; (w) Chocolate Candies; (x) Chocolate Peanut Candies; (y) Caramel Nut Chew Bar; (z)  Chocolate Caramel Mousse Bar; (aa) Chocolate Coconut Bar; (bb) Nutty Fudge Brownie; (cc)  Peanut Butter Cups, and (dd) Peanut Caramel Cluster Bar.   22.  The Atkins “net carb” formula subtracts all grams of sugar alcohol from  carbohydrates. For example, its “Chocolate Candies” product claims to have just “1g Net Carb.”  6   23.  The ingredients panel for Atkins’ Chocolate Candies reveals the following:  7   24.  Thus, Atkins’ starts with 19g of total carbs then subtracts 4g of Dietary Fiber and  14g of Sugar Alcohols to arrive at a Net Carbs claim of just 1 gram. The ingredient list reveals  “maltitol” is the largest content of the product.    25.  By this calculation, Atkins assigns a carbohydrate value of zero to maltitol and any  other sugar alcohols for this product.    26.  But this method of calculation conflicts with the method originally espoused by Dr.  Atkins in his books. Indeed, Dr. Atkins stated that to arrive at net carbs, an individual should  subtract only carbohydrates associated with fiber. He stated: “Basically, you can deduct the grams  of fiber from the food’s total carb count. I call the net number of grams, ‘The carbs that count  when you do Atkins.’” Robert C. Atkins, M.D., Dr. Atkins’ New Diet Revolution (3rd ed.) at p. 68  8  (2002).  He further elaborated, “And determining which carbs count is simple: Check the total  fiber grams listed on the food label and subtract that number from the total grams of carbohydrate  listed.” Id. at p. 69. Thus, even Dr. Atkins uses a different carbohydrate calculation than that used  by Atkins in its labeling.   27.  Atkins does not disclose the conflict between Dr. Atkins’ espoused method of  calculating “net carbs” and the method used by the company.  C. Sugar Alcohols Retain Significant Energy Value   28.  Contrary to Atkins’ claims, the authoritative scientific research on sugar alcohols,  particularly maltitol, shows that they continue to have a significant impact on blood sugar levels.    29.  The Diabetes Teaching Center at the University of California, San Francisco puts  it best, “[D]on’t be fooled – sugar alcohols are still a form of carbohydrate, and they still affect  your blood sugar levels, if not as dramatically.”2    30.  Similarly, Dr. Regina Castro of the Mayo Clinic warns consumers should “be  cautious with sugar alcohols” because they “can increase your blood sugar level.”3   31.  To Plaintiffs’ knowledge, no independent scientist, doctor, or researcher agrees  with Atkins’ assertion that maltitol and other sugar alcohols have a net energy value of zero. Atkins  conceals this fact from consumers, and does not disclose this fact in its labeling or representations  to consumers.  2   See http://dtc.ucsf.edu/living-with-diabetes/diet-and-nutrition/understanding- carbohydrates/counting-carbohydrates/learning-to-read-labels/counting-sugar-alcohols/.  3   See http://www.mayoclinic.org/diseases-conditions/diabetes/expert-answers/artificial- sweeteners/faq-20058038.  9   32.  In the study “Sugar Alcohols and Diabetes: A Review,”4 Dr. Thomas Wolever  explained:  Some people may believe that products sweetened with sugar alcohols allow for more  variety in food choices, and, hence, increased quality of life for people with diabetes.  However, there is no evidence that sugar alcohol-sweetened products have any benefit on  long-term glycemic control in people with diabetes.   …  The rationale behind the use of sugar-alcohol sweetened products for weight management  is that they reduce both the energy and sugar contents of confectionary. However, the  reduction in energy content is not large[.] … Most sugar alcohols have an energy content   33.  Ordinary carbs have an energy value of approximately four calories per gram.    34.  Maltitol has an energy value of approximately three calories per gram, 25 percent  less than the energy value of an ordinary carb.5    35.  Dr. Wolever found that 50 to 75 percent of maltitol is absorbed into the body.     36.  By multiplying the energy value by the percent of the sugar alcohol absorbed by  the body, one can arrive at the carb value of a sugar alcohol relative to an ordinary carbohydrate.  Thus, total carbohydrate energy consumed per gram of maltitol is actually between 38 to 56 percent  of the carbohydrate value of table sugar or ordinary carbohydrates.   4   See http://archive.diabetes.ca/files/SugarAlcohols--Wolever--CJDDecember2002.pdf.  5   See http://www.inspection.gc.ca/food/labelling/food-labelling-for-industry/nutrition- labelling/elements-within-the-nutrition-facts-table/eng/1389206763218/1389206811747?chap=1.   10   37.  Thus, according to Dr. Wolever’s more scientifically sound calculation, the true  “net carbs” in Atkins “Chocolate Candies” product would be between 6.32 and 8.84 grams instead  of the 1 gram fraudulently claimed by Atkins. Accordingly, just as one example, the “Chocolate  Candies” product has a “net carb” value of between 632 to 884 percent times as high as that  claimed by Atkins.    38.  According to the Diabetes Teaching Center at the University of California, San  Francisco, “When counting carbohydrates for products made with sugar alcohols, [one should]  subtract half of the grams of sugar alcohol listed on the food label from the total grams of  carbohydrate.”6   39.  Thus, experts agree: carbohydrates derived from sugar alcohols (1) impact blood  sugar, and (2) should be included in any net carbohydrate count for products.    40.  Atkins conceals the fact that sugar alcohols impact blood sugar from consumers.   41.  Atkins conceals the fact that sugar alcohols should be included in the net carb count  for products.  D. The Term “Net Carbs” Is Grossly Misleading   42.  The FDA has not regulated the phrase “net carb” but has affirmatively stated that it  “ha[s] concerns that [the] term may be misleading to consumers.”7     43.  The FDA admonished a different company for failing to include maltitol in its  carbohydrate count on its label. In a June 20, 2001 letter concerning the product Carbolite, the  FDA stated:  6   See http://www.diabetes.org/food-and-fitness/food/what-can-i-eat/understanding- carbohydrates/sugar-alcohols.html.  7   See  http://www.fda.gov/ICECI/EnforcementActions/WarningLetters/2014/ucm407036.htm.   11  The product is further misbranded because the label bears the claim “Zero  Carbohydrate” and the statement “Maltitol . . . . has been omitted from the  total carbohydrate content . . . .” Maltitol is a carbohydrate and must be  included in the value declared for “Total Carbohydrate” . . .  See Food and Drug Administration Warning Letter ONPLDS 20-01 (June 20, 2001).   44.  Though the FDA does not formally regulate use of the phrase “net carb,” its  Canadian counterpart has found that the phrase is “not acceptable due to lack of scientific  consensus on … definition and [its] potential to mislead consumers.”8    45.  In another study, Dr. Wolever articulated the same concerns. He wrote, “Food  labels of products containing sugar alcohols can be confusing.” Thomas Wolever, M.D. Ph.D.,  “Sugar Alcohol and Diabetes: A Review,” Canadian Journal of Diabetes 2002; 26(4): 356-362 at  360 (2002). He elaborated that “individuals who use product labels to count carbohydrates could  potentially overestimate the amount of insulin to use for a carbohydrate load. Complicating this  issue is a lack of consistent labelling, both nationally and internationally, for products containing  sugar alcohols.” Id. at 361.   46.  In 2004, Dr. Wolever told the New York Times, “It’s a big misconception to say  maltitol does not raise blood sugar.” Instead, he explained, “Sugar alcohols have come on the  market quite aggressively and it’s very confusing. The science is not good.”9   47.  In 2004, Atkins appeared to agree with the consensus that food labels concerning  sugar alcohols were misleading. The company announced in 2004 that it would discontinue using  the term “net carbs” on its food labels because the term is “imprecise.” Sarah Ellison, Atkins Labels  8   See http://www.inspection.gc.ca/food/labelling/food-labelling-for-industry/nutrition- labelling/carbohydrate-claims/eng/1409844949900/1409845010355.  9 See Burros, Marian, “New ‘Low-Carb’ Foods Aren’t All-You-Can-Eat, N.Y. Times, Apr. 14,  2004, available at  http://www.nytimes.com/learning/students/pop/20040415snapthursday.html  12  Will Drop Term ‘Net Carbs’, THE WALL STREET JOURNAL, Oct. 6, 2004 (available at  http://www.wsj.com/articles/SB109700319191636814). According to the article:  As low-carb products have proliferated, the food industry has faced  increasing skepticism about their nutrient content and labeling. For  example, many companies, including Atkins at one time, calculate a  products “net carbs” by subtracting grams of fiber and sugar alcohols from  the total carbohydrate grams. That calculation allows food makers to cook  up starchy, sweet products like brownies, pastries and candy, and call them  “low carb.” But one thing the calculation doesn’t take into account is  that sugar alcohols raise blood-sugar levels, just as “net carbs” do.  Id. (emphasis added).   48.  Nonetheless, despite acknowledging that the term “net carbs” is “imprecise” –  particularly when it subtracts sugar alcohols from its consideration – Atkins continues to use the  term in its labeling and continues to use the formulation that it publicly rejected in 2004.   49.  Atkins’ “net carb” claims are false, misleading, and likely to deceive consumers,  such as Plaintiff and members of the Class, in that Atkins’ products have multiple times the level  of carbohydrates as labeled by Atkins’ net carb claim because sugar alcohol continues to have an  effect on blood sugar and calories in direct contradiction to Atkins’ claims.   E. The Plaintiff’s and Class Members’ Experiences   50.  Plaintiff is domiciled in Queens County, New York.   51.  Plaintiff has purchased Atkins meal bars and snack bars at multiple locations in the  State of New York, specifically in this District.   52.  Plaintiff would not have purchased the products if he had known that the Atkins  products misleadingly defined “net carbs” to exclude sugar alcohols, which were up to eight times  higher than the amount claimed by Atkins.    13   53.  Furthermore, ordinary and reasonable consumers would not purchase Atkins’  products containing the “net carbs” designation if they knew the facts and information that Atkins  concealed from consumers.   54.  Plaintiff and members of the Class have been economically damaged by their  purchase of Atkins’ products because they have significantly more carbohydrates that affect the  blood sugar and weight gain than the “net carb” amount claimed by Atkins.  In this respect,  Plaintiff and members of the Class have overpaid for Atkins products containing the “net carbs”  calculation that omits sugar alcohols from its calculation.   55.  At a minimum, Plaintiff contends that Defendant should cease labeling its products  with a “net carb” calculation that assigns a value of zero to sugar alcohols.   56.  Under Rule 23 of the Federal Rules of Civil Procedure, Plaintiff brings this action  on behalf of himself and the following proposed Class:  Citizens of New York who have purchased Atkins’ products labeled and marketed  with the “net carbs” calculation that contained sugar alcohols in the State of New  York.   57.  Excluded from the Class are Defendant, any affiliate, parent, employee or  subsidiary of Defendant; any officer, director, or employee of Defendant; anyone employed by  counsel for Plaintiff in this action; and any Judge to whom this case is assigned as well as his or  her immediate family.   58.  This action has been brought and may be properly maintained as a class action  under Federal Rule of Civil Procedure 23.   59.  Numerosity of the Class – Rule 23(a)(1).  Class members are so numerous that  their individual joinder is impracticable.  14   60.  Existence and Predominance of Common Questions of Law and Fact – Rule  23(a)(2), 23(b)(3). Common questions of law and fact exist as to all members of the Class and  predominate over questions affecting only individual Class members. These common legal and  factual questions, each of which may also be certified under Rule 23(c)(4), include the following:  a.  Whether Atkins misrepresented / concealed the sugar alcohol content on  the label of its products identified with the “net carbs” designation;  b.  Whether Atkins was aware of its deception and/or omissions;  c.  Whether Atkins’s deception is material;  d.  Whether Atkins concealed the true nature of its product;  e.  Whether Atkins profited from its concealment;  f.  Whether Atkins had a duty to disclose the correct sugar alcohol content  and/or true identity of its products with the “net carbs” label;  g.  Whether Atkins’s conduct harmed Plaintiff and the Class;  h.  Whether Atkins has engaged in unlawful, unfair, or fraudulent business  practices in violation of New York law;   i.  Whether Plaintiffs and the other Class members are entitled to equitable  relief, including declaratory relief, restitution, and/or rescission.   61.  Typicality – Rule 23(a)(3).  Plaintiff’s claims are typical of the claims of the Class  because, among other things, Plaintiff purchased Atkins products bearing the “net carbs” label that  contained sugar alcohols.    62.  Adequacy of Representation – Rule 23(a)(4). Plaintiff will fairly and adequately  protect the interests of Class members. Plaintiff has retained counsel competent and experienced  15  in complex class action litigation, and Plaintiff will prosecute this action vigorously. Plaintiff has  no interests adverse or antagonistic to those of the Classes.   63.  Superiority - Rule 23(b)(3).  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 members are small compared with the burden and  expense that would be entailed by individual litigation of their claims against Defendant. It  would thus be virtually impossible for the Class members, on an individual basis, to obtain  effective redress for the wrongs done them. Furthermore, even if Class 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.  Individualized litigation would also increase the delay and expense to all parties and the court  system from the issues raised by this action. By contrast, 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 here.  64.  Plaintiff incorporates by reference and re-alleges all paragraphs previously alleged  herein.     65.  Plaintiff asserts this cause of action on behalf of himself and the proposed Class  against Defendant under New York Gen. Bus. Law § 349, which protects consumers against  deceptive acts or practices in the conduct of any business.   16   66.  Throughout the class period, Atkins engaged in deceptive business acts and/or  practices by:  a. Marketing, advertising, and selling products with the “net carbs” label without  disclosing and omitting the true carbohydrate count of those products; and  b. Affirmatively asserting that sugar alcohols had effectively zero impact on blood  sugar, by subtracting all sugar alcohols from its “net carb” calculation;  c. Marketing, advertising, and selling products using the “Atkins” name without  disclosing and omitting that the products were not consistent with the philosophy  of the diet and company’s eponymous founder.     67.  Defendant’s acts and omissions described herein misled Plaintiff and class  members about facts of the product that could not reasonably be known by them.    68.  Defendant’s deceptive acts and omissions described herein were made knowingly  with the intent to cause Plaintiff and class members to underestimate the carbohydrate impact of  Defendant’s products.    69.  Defendant’s deceptive acts and omissions were directed at consumers.   70.  As a direct result of Atkins’s deceptive business acts and/or practices, Plaintiff and  members of the Class suffered injury in fact and lost money or property.   71.  Defendant’s conduct in employing these deceptive business acts and/or practices  was malicious, willful, wanton, and outrageous such as to shock the conscious of the community  and therefore warrants imposition of punitive damages in an amount to be determined by a jury.   72.  Defendant’s deceptive business acts and practices impact the public interest  because Plaintiff and class members were injured in exactly the same way as thousands of others  purchasing the products.   17   73.  Defendant’s deceptive business acts and/or practices are likely to mislead  reasonable consumers in the future. Had Plaintiff and class members known the true facts about  the products, they would not have purchased them at their inflated price.    74.  Accordingly, Plaintiff, on behalf of himself and the Class, seeks the greater of $50  per class member or actual damages, whichever is greater, plus attorney’s fees.   75.  Plaintiff also seeks an injunction to enjoin the deceptive practices alleged herein.  76.  Plaintiff incorporates by reference and re-alleges all paragraphs previously alleged  herein.    77.  Plaintiff asserts this cause of action on behalf of himself and the Class against  Defendant under GBL § 350, which declares unlawful “[f]alse advertising in the conduct of any  business, trade, or commerce.” As defined in the Act, 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. …” GBL § 350-a(1).   78.  Defendant has been and continues to be engaged in the “conduct of … business,  trade, or commerce” under GBL § 350.    79.  Throughout the class period, Defendant caused to be made and disseminated  throughout New York statements that were untrue and misleading. These statements were made  on the Defendant’s product labels, its website, and in general advertising.    80.  Defendant’s conduct in employing these deceptive business acts and/or practices  was malicious, willful, wanton, and outrageous such as to shock the conscious of the community  and therefore warrants imposition of punitive damages in an amount to be determined by a jury.   80.  Defendant knew, or, in the exercise of reasonable care, should have known that its  statements were untrue and misleading to Plaintiff and class members.   18   81.  Defendant’s untrue and misleading statements were material and substantially  uniform in their content, presentations, and impact upon Plaintiff and class members.   81.  Accordingly, Plaintiff on behalf of himself and the Class, seek relief against Atkins  in the form of an order prohibiting Atkins from engaging in the alleged misconduct described  herein, and other relief as specifically prayed for herein.  82.  Plaintiff incorporates by reference and re-alleges all paragraphs previously alleged  herein.     82.   Defendant’s untrue and misleading statements were material and likely to deceive  a reasonable consumer. As a direct result of Atkins’s false advertising, Plaintiff and members of  the Class suffered injury in fact and lost money or property.   83.  Plaintiff asserts this cause of action on behalf of himself and the proposed Class  against Defendant for breach of express warranty.   84.  Defendant provided Plaintiff and class members with written express warranties  that its products contained minimal “net carbs” and that any sugar alcohols contained therein had  minimal and effectively no impact on blood sugar.  These “Net Carb” claims are affirmations of  fact that were a basis of the bargain between Plaintiff (and class members) and Defendant.    85.  Defendant’s Net Carb claims created an express warranty that the goods would  conform to Defendant’s stated promises.   19   86.  Defendant’s Net Carb claims were material to Plaintiff and class members in the  decision to purchase Defendant’s products.    87.  Defendant breached its express warranty by not providing goods with the qualities  promised.    88.  As a direct result of Defendant’s breach, Plaintiff and members of the Class  suffered injury in fact and lost money or property.   89.  Defendant’s conduct in employing these deceptive business acts and/or practices  was malicious, willful, wanton, and outrageous such as to shock the conscious of the community  and therefore warrants imposition of punitive damages in an amount to be determined by a jury.   90.  Accordingly, Plaintiff on behalf of himself and the Class, seek relief against Atkins  in the form of an order prohibiting Atkins from engaging in the alleged misconduct described  herein, and other relief as specifically prayed for herein.  A. Background   Breach of Express Warranty   Violation of N.Y. Gen. Bus. Law § 349  (Deceptive and Unfair Trade Practices)   Violation of New York Gen. Bus. Law § 350  (False Advertising)  