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AHDOOT & WOLFSON, P.C
Tina Wolfson (SBN 174806)
twolfson@ahdootwolfson.com
Robert Ahdoot (SBN 172098)
rahdoot@ahdootwolfson.com
Keith Custis, Of Counsel (SBN 218818)
kcustis@ahdootwolfson.com
1016 Palm Avenue
West Hollywood, California 90069
Telephone: 310-474-9111
Facsimile: 310-474-8585
Attorneys for Plaintiffs
ODESSA WILEY and RENE’ HORSCH
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
05/17/2016
Clerk of the Court
BY-:NOELIA RIVERA
Deputy Clerk
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
ODESSA WILEY and RENE’ HORSCH,
individually and on behalf of all others
similarly situated,
Plaintiffs,
Vv.
LENNY & LARRY’S INC., a California
Corporation, and DOES 1-50
Defendant.
CASE NO. CGC15-545875
FIRST AMENDED CLASS ACTION
COMPLAINT
JURY TRIAL DEMANDED
FIRST AMENDED CLASS ACTION COMPLAINTPlaintiffs Odessa Wiley and René Horsh (“Plaintiffs”), by and through their counsel,
brings this First Amended Class Action Complaint against Defendant Lenny & Larry’s, Inc.
(“Defendant”), and alleges, upon personal knowledge as to their own actions, and upon
information and belief and the investigation of their counsel as to all other matters, as follows:
NATURE OF THE CASE
1. This is a consumer protection and false advertising class action. Defendant
markets, advertises, distributes and sells a line of high protein “Complete Cookies” under the
Lenny & Larry’s brand name, which it prominently labels as “All Natural” and as containing
“No GMOs.” Defendant also markets, advertises, and distributes lines of high protein muffins
and brownies under the Lenny & Larry’s brand name, which Defendant also prominently
labels as “All Natural.”
2. The products that Defendant advertises as “All Natural” and as containing “No
GMOs” include the All Natural Complete Cookie Line: !
(a) The All Natural Chocolate Chip Complete Cookie:
(b) The All Natural Double Chocolate Complete Cookie;
(c) The All Natural Lemon Poppy Seed Complete Cookie;
(d) The All Natural Oatmeal Raisin Complete Cookie;
(e) The All Natural Peanut Butter Complete Cookie;
(f) The All Natural Pumpkin Spice Complete Cookie;
(g) The All Natural White Chocolate Macadamia Complete Cookie; and
(h) The All Natural Snickerdoodle Complete Cookie.
3. The products that Defendant advertises as “All Natural” include:
(a) The All Natural Muscle Brownie Product Line:
i, The All Natural Triple Chocolate Muscle Brownie;
ii. The All Natural Cookies & Cream Muscle Brownie;
' Defendant may discontinue offering some products and regularly introduces new products that are also falsely
and misleadingly labeled “All Natural.” Defendant may also market and sell additional substantially similar
products of which Plaintiff is unaware. Plaintiff will ascertain the identity of these additional products through
discovery.
First AMENDED CLASS ACTION COMPLAINTiii. The All Natural Peanut Butter Muscle Brownie; and
iv. The All Natural Caramel Walnut Muscle Brownie.
(b) The All Natural Muscle Muffin Product Line:
i. The All Natural Blueberry Muscle Muffin;
ii. The All Natural Banana Muscle Muffin;
iii. The All Natural Pumpkin Muscle Muffin; and
iv. The All Natural Double Chocolate Muscle Muffin;
(c) The All Natural FIT Protein Brownie Product Line:
i. The All Natural Chocolate Decadence FIT Protein Brownie;
ii. The All Natural Chocolate Raspberry FIT Protein Brownie; and
iii. The All Natural Peanut Butter Crunch FIT Protein Brownie.
4. The foregoing products are collectively referred to in this Complaint as the
“Products.”
5. These Products are not “All Natural” for three independent reasons. First, the
Products contain ingredients — including soybean oil, soy protein isolate, soy lecithin, canola
oil, corn syrup, cornstarch, dextrose, maltodextrin, and beet syrup — that are made from
genetically modified (“GM”) crops, including GM soy, GM rapeseed, GM corn and GM sugar
beets.
6. A GM crop is a crop whose genetic material has been altered by humans using
genetic engineering techniques. The World Health Organization defines genetically modified
organisms (“GMOs”), which include GM crops, as “organisms in which the genetic material
(DNA) has been altered in a way that does not occur naturally. There are wide-ranging
controversies related to GM crops, including health risks from ingesting GM foods and
negative environmental effects associated with growing GM crops. The use and labeling of
GM foods is the subject of a variety of laws, regulations, and protocols worldwide. GM crops
are man-made and are not “all natural.”
7. Second, Defendant’s “All Natural” claims are also false because certain
Products contain soy protein isolate, soy lecithin, maltodextrin, dextrose, sorbitan tristearate,
2
FIRST AMENDED CLASS ACTION COMPLAINTxanthan gum, citric acid, niacin, thiamine mononitrate, riboflavin and folic acid, all of which
are unnatural, synthetic, and/or artificial. Defendant’s use of these ingredients also causes
the Products to be not “All Natural.”
8. Upon information and belief, Defendant uses hexane-processed soy products
in its “Al Natural” products. Indeed, the principal source of protein in each of Defendant’s
high-protein, “All Natural” Products is hexane-processed soy protein isolate.
9. Approximately 95% of all soybean processors in the United States use hexane
as a cheap solvent to extract oil from soybeans in order to make soy oil and protein
ingredients. > Hexane is a constituent of gasoline obtained from crude oil, natural gas liquids,
or petroleum refinery processing. According to the United States Occupational Safety and
Health Administration, hexane is a narcotic and neurotoxic agent, which can cause irritation
to the eyes and upper respiratory tract. Commercial hexane also contains benzene, a known
hematologic poison linked to chronic leukemia.
10. Third, Defendant’s “All Natural” claims are also false because the GM soybean
oil and canola oil used as ingredients in the Products are so heavily processed that they bear no
chemical resemblance to the GM crops from which they are derived. Through heavy
industrialized processing, the GM soybean oil and canola oil have become man-made, rather
than natural.
11. Although the Products are not “All Natural,” Defendant prominently labels
every package of the Products sold in California and throughout the United States as “All
Natural,” cultivating a wholesome and healthful image in an effort to promote the sale of
these products, even though the food products were actually not “All Natural” as they were
labeled.
12. Defendant does this because consumers perceive all natural foods as better,
healthier, and more wholesome. In fact, the market for all natural foods has grown rapidly in
recent years, a trend that Defendant exploits through false advertising. Defendant is keenly
? See hitp://www.perdueagribusinesspa.com/#!about/c21r (last visited May 18, 2015).
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FIRST AMENDED CLASS ACTION COMPLAINTaware that its “All Natural” claim appeals to consumers. In November 2014, in an interview
with a trade publication, Defendant’s CEO touted the “all natural” and “non-GMO” attributes
of its All Natural Cookies as follows: “People always like to eat cookies and then when
consumers see the cookie is also all natural, non- GMO, high in protein and fiber, its appeal
is even stronger. It’s not just like eating a cookie that has a lot of sugar and calories.”*
13. In light of Defendant’s “All Natural” representation, a reasonably prudent
consumer would certainly not expect these food products to include artificial, synthetic
ingredients, ingredients sourced from GM crops and/or highly-processed ingredients. As a
result of such false and misleading labeling, Defendant was able to sell these purportedly
“All Natural” products to thousands of unsuspecting consumers in California and throughout
the United States while profiting handsomely from these transactions.
14. Any consumer who purchased the Products — irrespective of their motivation.
for purchasing the Products — suffered harm in the form of a higher price that Defendant was
able to command for the Products based on the false representations that they are “All
Natural.”
15. Plaintiff brings claims against Defendant individually and on behalf of all other
similarly situated purchasers of the Products for: (1) breach of express warranties; (2)
violations of California’s Consumers Legal Remedies Act, Cal. Civ. Code § 1750, et seg.; and
(3) violations of California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq.
Plaintiff seeks an order requiring Defendant to, among other things: (1) cease the unlawful
marketing; (2) conduct a corrective advertising campaign; and (3) pay damages and restitution
to Plaintiff in the amounts paid to purchase the products at issue.
PARTIES
16. Plaintiff Odessa Wiley is a resident of San Francisco County, California.
17. Plaintiff René Horsch is a resident of Los Angeles County, California.
18. Defendant Lenny & Larry’s, Inc. is a California Corporation with its principal
> See http://vww.bakeryandsnacks.com/Manufacturers/Lenny-Larry-s-high-protein-cookies-boom (last visited
May 18, 2015) (emphasis added).
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FIRST AMENDED CLASS ACTION COMPLAINTplace of business located in Northridge, California. Defendant Lenny & Larry’s, Inc. markets,
advertises, distributes and sells the Products to consumers throughout California and the
United States.
19. Plaintiff is currently ignorant of the true names and capacities, whether
individual, corporate, associate, or otherwise, of the defendants sued herein under the
fictitious names Does | through 50, inclusive, and therefore sue such defendants by such
fictitious names. Plaintiff will amend this complaint to allege the true names and capacities
of said fictitiously named defendants when their true names and capacities have been
ascertained. Plaintiff is informed and believes and thereon alleges that each of the fictitiously
named Doe defendants are legally responsible in some manner for the events and occurrences
alleged herein, and for the damages suffered by Plaintiff and members of the Class.
JURISDICTION AND VENUE
20. This class action is brought pursuant to the California Code of Civil Procedure
Section 382. The damages and restitution sought by Plaintiff exceeds the minimal jurisdiction
limit of the Superior Court and will be established according to proof at trial.
21. This Court has jurisdiction over this action pursuant to the California
Constitution, Article VI, Section 10, which grants the Superior Court “original jurisdiction in
all causes except those given by statute to other courts.” The statutes under which this action is
brought do not specify any other basis for jurisdiction.
22. This Court has jurisdiction over the Defendant because, upon information and
belief, Defendant is a citizen and/or resident of California.
23. Venue is proper in this Court because, upon information and belief, Defendant
transacts business in this County and the acts and omissions alleged herein took place in this
County. Plaintiff resided in the San Francisco County at the time she purchased the Products,
and continues to live in the San Francisco County.
24. Defendant is incorporated in California, has its principal place of business in
Northridge, California and operates, manages and directs its national and international sales
and business operations from its offices in California. Defendant has manufacturing, storage
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FIRST AMENDED CLASS ACTION COMPLAINTand distribution facilities in California, from which Defendant operates and directs the
majority of its nationwide sales and business operations. It is therefore believed and averred
that the misleading labeling and related misconduct at issue in this Complaint occurred, were
conducted and/or were directed primarily from, or at least a substantial proportion emanated
from, California, including, but not limited to: (a) the design of the Lenny & Larry’s
Products’ packaging; (b) the review, approval and revision of food products and labeling; (c)
the selection and integration of ingredients into the Products; (d) the distribution of the
Products nationwide; and (e) the management and supervision of sales operations to Plaintiff
and the Classes (as defined herein).
GENERAL ALLEGATIONS
25. Plaintiff's allegations in this complaint as to her own actions are based on
personal knowledge. All other allegations are based on information and belief that they will
have evidentiary support, after a reasonable opportunity for further investigation or
discovery. Whenever allegations in this complaint are contrary or inconsistent, such
allegations shall be deemed to be alleged in the alternative
FACTUAL ALLEGATIONS
A. Defendant Deceptively Labels The Products As “All Natural”
26. For the four years preceding the filing of this Complaint, Defendant has
prominently and conspicuously labeled and advertised the Products as “All Natural.” The
labeling and marketing on the Products communicates a straightforward, material message,
which is that the “All Natural” Products are 100% natural. However, unbeknownst to
Plaintiff, the Products actually contain artificial, synthetic ingredients, ingredients sourced
from GM crops and/or highly-processed ingredients, and are not “all natural.”
27. The core deceptive, false, and misleading representations that the Products are
“All Natural” is conspicuously and prominently placed on the Products’ packaging for every
person to see as soon as they pick up a Product to read it.
Hf
Hf
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FIRST AMENDED CLASS ACTION COMPLAINT28.
By way of illustration, the “All Natural” representation on the packaging of the
the “All Natural” Complete Cookie Product Line currently appears like this:
29.
Complete Cookie Product Line appeared like this:
For the portions of the Class period, the packaging of the “All Natural”
FIRST AMENDED CLASS ACTION COMPLAINT30. The “All Natural” representation on the packaging of the “All Natural” Muscle
Brownie Product Line appears like this:
GRY (3
a
31. The “All Natural” representation on the packaging of the “All Natural” Muscle
Muffin Product Line appears like this:
USCLE MUFF
HEEIN
MUSCLE Ml
cao
re
FIRST AMENDED CLASS ACTION COMPLAINT32. The “All Natural” representation on the packaging of the “All Natural” Fit
Brownie Product Line currently appears like this
33. By conspicuously and prominently placing the “All Natural” representations on
the Product’s packaging, Defendant has ensured that all consumers purchasing the Products
would be exposed to its “All Natural” claims.
B. Food Derived From Genetically Modified Organisms Is Not All Natural
34. Genetically modified crops do not occur in nature, and as such are not “All
Natural.” On the contrary, genetically modified crops are crops that are genetically
manipulated from their natural state. For example, Monsanto, one of the largest producers of
genetically modified crop seed, defines genetic modification (or genetic engineering) to mean
“[t]he technique of removing, modifying or adding genes to a living organism via genetic
engineering or other more traditional methods. Also referred to as gene splicing, recombinant
DNA (rDNA) technology or genetic engineering.” Monsanto also defines Genetically
Modified Organisms (“GMO”) as “[p]lants or animals that have had their genetic makeup
altered to exhibit traits that are not naturally theirs. In general, genes are taken (copied) from
one organism that shows a desired trait and transferred into the genetic code of another
organism.”
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FIRST AMENDED CLASS ACTION COMPLAINT35. The World Health Organization’s (“WHO”) definition of GMO is consistent
with how Monsanto defines them: “Genetically modified (GM) foods are foods derived from
organisms whose genetic material (DNA) has been modified in a way that does not occur
naturally, e.g. through the introduction of a gene from a different organism.” WHO also
cautions that “All GM foods should be assessed before being allowed on the market.”
36. The United States Environmental Protection Agency (“EPA”) for Prevention,
Pesticides, And Toxic Substances, has distinguished between conventional breeding of plants
“through natural methods, such as cross-pollination” and genetic engineering. “Conventional
breeding is a method in which genes for pesticidal traits are introduced into a plant through
natural methods, such as cross-pollination.” “Genetically engineered plant-incorporated
protectants are created through a process that utilizes several different modern scientific
techniques to introduce a specific pesticide-producing gene into a plant’s DNA genetic
material.”
37. Romer Labs, a company that provides diagnostic services to the agricultural
industry, including tests to detect and determine the existence of GM crops, defines GM crops
as “[a]griculturally important plants [that] are often genetically modified by the insertion of
DNA material from outside the organism into the plant’s DNA sequence, allowing the plant to
express novel traits that normally would not appear in nature, such as herbicide or insect
resistance. Seed harvested from GMO plants will also contain these modifications.”
38. As indicated by the various industry, government and health protection agency
organizations cited above, GM crops and GMOs are not “all natural.” In addition, products
made from GM crops and GMOs are not “all natural.”
39. The United States Department of Agriculture (“U.S.D.A”) estimates that, as of
2014, approximately 89% of corn, 90% of rapeseed and 94% of soybeans grown in the United
States is genetically modified. * Canola oil is made from rapeseed. Nearly 95% of the sugar
+ See http:/www.ers.usda.gov/media/185551/biotechcrops_d.html (last visited May 18, 2015); see also
http://www huffingtonpost.com/margie-kelly/genetically-modified-food_b_2039455 html (last visited May 18,
2015); Economic Research Service, USDA, Genetically engineered varieties of corm, upland cotton, and
soybeans, by State and for the United States, 2000-14 (alltables.xls), available at http://vww.ers.usda.gov/data-
products/adoption-of-genetically-engineered-crops-in-the-us.aspx#, VBeWqCSdWyR (last visited May 18, 2015).
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FIRST AMENDED CLASS ACTION COMPLAINTbeets grown in the United States are genetically modified.’ Upon information and belief, the
small percentage of these crops that are not GM are organic and are used in USDA Organic-
Certified and/or Non-GMO Project Certified products. Defendant’s Products are neither
USDA Organic-Certified nor Non-GMO Project Certified. Upon information and belief, given
the amount of commingling of agricultural products in grain silos, the soybeans, corn,
rapeseed from which Defendant’s ingredients are derived are GM crops.
40. The market for natural products is large and ever growing and consumers are
willing to pay a premium for products they believe to be natural, healthy and/or organic.
Natural Foods Merchandiser magazine’s 2013 Market Overview reported significant growth
for the natural and organic products industry. Gleaning more than $89.4 billion dollars in
revenue in 2013 alone, the industry grew ten-and-a-half percent (10.5%) from 2012, revealing
that consumers’ desire for natural products is huge and continues to grow.
41. Defendant’s “All Natural” representations are deceptive, false, misleading, and
unfair to consumers who are injured in fact by purchasing Products that Defendant claims are
“All Natural” when the Products actually contain ingredients made from GM soybeans, corn,
rapeseed and sugar beets and, thus, are not all natural.
Cc. The Products Are Not “All Natural” Because They Contain Ingredients Sourced
From GM Crops, Highly-Processed Ingredients And Other Synthetic Ingredients
42. — The Products contain ingredients derived from GM crops, highly-processed
ingredients and/or artificial, synthetic ingredients, and are, thus, not “all natural.”
43. Specifically, although each of the Compete Cookies is labeled “All Natural”
and “Non-GMO” and all the other Products are labeled “All Natural,” each of the Products
contains the following unnatural ingredients:
a. The Chocolate Chip Complete Cookie:
. Contains Hexane-Processed Soy Protein Isolate, Canola Oil, and
Enriched Wheat Flour (Wheat Flour, Niacin, Iron, Thiamine
Mononitrate, Riboflavin, Folic Acid).
5 See http://www.takepart.com/article/20 12/07/20/usda-deregulates-gmo-sugar-beet (last visited May 18, 2015).
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FIRST AMENDED CLASS ACTION COMPLAINT° Colored with Annatto Extract.
The Lemon Poppy Seed Complete Cookie:
. Contains Hexane-Processed Soy Protein Isolate, Canola Oil, and
Enriched Wheat Flour (Wheat Flour, Niacin, Iron, Thiamine
Mononitrate, Riboflavin, Folic Acid).
. Colored with Turmeric.
The Peanut Butter Complete Cookie:
. Contains Hexane-Processed Soy Protein Isolate, Canola Oil, and
Enriched Wheat Flour (Wheat Flour, Niacin, Iron, Thiamine
Mononitrate, Riboflavin, Folic Acid).
° Colored with Annatto Extract.
The Double Chocolate Complete Cookie:
. Contains Hexane-Processed Soy Protein Isolate, Canola Oil, and
Enriched Wheat Flour (Wheat Flour, Niacin, Iron, Thiamine
Mononitrate, Riboflavin, Folic Acid).
. Colored with Annatto Extract.
The Oatmeal Raisin Complete Cookie:
. Contains Hexane-Processed Soy Protein Isolate, Canola Oil, and
Enriched Wheat Flour (Wheat Flour, Niacin, Iron, Thiamine
Mononitrate, Riboflavin, Folic Acid).
. Colored with Annatto Extract.
The White Chocolate Macadamia Complete Cookie:
. Contains Hexane-Processed Soy Protein Isolate, Canola Oil, and
Enriched Wheat Flour (Wheat Flour, Niacin, Iron, Thiamine
Mononitrate, Riboflavin, Folic Acid).
. Colored with Annatto Extract.
The Snickerdoodle Complete Cookie:
. Contains Hexane-Processed Soy Protein Isolate, Canola Oil, and
12
FIRST AMENDED CLASS ACTION COMPLAINTEnriched Wheat Flour (Wheat Flour, Niacin, Iron, Thiamine
Mononitrate, Riboflavin, Folic Acid)..
Double Chocolate Muscle Muffin:
Contains Hexane-Processed Soybean Oil, Dextrose, Hexane-
Processed Soy Lecithin, Hexane-Processed Soy Protein Isolate,
Corn Starch, Lecithin and Wheat Flour (Wheat Flour, Niacin,
Tron, Thiamine Mononitrate, Riboflavin, Folic Acid).
Blueberry Muscle Muffin:
Contains Hexane-Processed Soybean Oil, Hexane-Processed
Soy Protein, Corn Starch, Lecithin and Enriched Wheat Flour
(Wheat Flour, Niacin, Iron, Thiamine Mononitrate, Riboflavin,
Folic Acid).
Banana Muscle Muffin:
Contains Hexane-Processed Soybean Oil, Water, Hexane-
Processed Soy Protein Isolate, Corn Starch, Lecithin and
Enriched Wheat Flour (Wheat Flour, Niacin, Iron, Thiamine
Mononitrate, Riboflavin, Folic Acid).
Pumpkin Muscle Muffin:
Contains Hexane-Processed Soybean Oil, Hexane-Processed
Soy Protein Isolate, Corn Starch, Lecithin, and Enriched Wheat
Flour (Wheat Flour, Niacin, Iron, Thiamine Mononitrate,
Riboflavin, Folic Acid).
Triple Chocolate Muscle Brownie:
Contains Hexane-Processed Soy Isolate, Hexane-Processed Soy
Lecithin, Citric Acid, Corn Syrup, Dextrose, Sorbitan
Tristearate, Soy Lecithin, Cocoa processed with Alkali, Caparve
(cultured Dextrose, Flour and/or Corn Starch).
Colored with Beta Carotene.
13
FIRST AMENDED CLASS ACTION COMPLAINTm.
Cookies & Cream Muscle Brownie:
. Contains Hexane-Processed Soy Isolate, Cornstarch,
Maltodextrin, Glycerin, Dextrose, Soy Lecithin, Citric Acid
Corn Syrup, Xanthan Gum, Canola Oil, Soy Lecithin, Cocoa
Processed with Alkali, Caparve (cultured Dextrose, Flour and/or
Corn Starch).
. Colored with Beta Carotene and Carmel Color.
Peanut Butter Muscle Brownie:
. Contains Hexane-Processed Soy Isolate, Hexane-Processed Soy
Lecithin, Citric Acid, Vitamin A Palmitate, Corn Syrup, Soy
Lecithin, Cocoa processed with Alkali, Caparve (cultured
Dextrose, Flour and/or Corn Starch).
. Colored with Beta Carotene.
The All Natural Caramel Walnut Muscle Brownie.
. Contains Hexane-Processed Soy Isolate, Hexane-Processed Soy
Lecithin, Citric Acid, Corn Syrup, Dextrose, Cocoa processed
with Alkali, Caparve (cultured Dextrose, Flour and/or Corn
Starch).
. Colored with Beta Carotene and Caramel Coloring.
Chocolate Raspberry FIT Protein Brownie:
. Contains Corn Starch, Alkalized Cocoa, Beet Syrup, Hexane-
Processed Soy Lecithin, Citric Acid, Ascorbic Acid.
Chocolate Decadence FIT Protein Brownie:
° Contains Corn Starch, Alkalized Cocoa, Beet Syrup, Hexane-
Processed Soy Lecithin.
Peanut Butter Crunch FIT Protein Brownie:
. Contains Corn Starch, Alkalized Cocoa, Beet Syrup, Hexane-
Processed Soy Lecithin.
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FIRST AMENDED CLASS ACTION COMPLAINT44. Canola Oil: Upon information and belief, the Canola Oil used as an ingredient
in Defendant’s Products has been derived from GM rapeseed during the four year period
preceding the filing of this Complaint.
45. Soy Protein Isolate, Soybean Oil, Soy lecithin: Upon information and belief,
the Soy Protein Isolate, Soybean Oil, Soy lecithin used as an ingredient in Defendant’s
Products has been derived from GM soy beans during the four year period preceding the filing
of this Complaint.
46. Corn starch, Corn Syrup, Dextrose, Maltodextrin: Upon information and
belief, the Corn starch, Corn Syrup, Dextrose, Maltodextrin used as an ingredient in
Defendant’s Products has been derived from GM corn during the four year period preceding
the filing of this Complaint.
47. Beet syrup: Upon information and belief, the beet syrup used as an ingredient
in Defendant’s Products has been derived from GM beets during the four year period
preceding the filing of this Complaint.
D. The Products Are Not Natural Because They Contain Ingredients That Are
Heavily Processed, Chemically-Derived And/Or Are Synthetic And Artificial,
Including Hexane-Processed Soy Products
48. Independent of the use of GM crops in the Products, Defendant’s “All Natural”
claims are false because the Products contain ingredients that are synthetic and so heavily
processed that they no longer are chemically the same as the raw ingredients. The various
processes by which the ingredients are synthesized render the final Products chemically
derived and non-natural. While they retain the non-natural genetic attributes of the GM crops
from which they are sourced, many of the Products’ ingredients no longer bear any natural
chemical resemblance to their source crops as a result of the extensive process by which they
are refined.
49. Hexane-Processed Soy Ingredients. All of Defendant’s Products contain
different types of soy products produced through the use of a volatile synthetic solvent,
hexane. Hexane is a constituent of gasoline obtained from crude oil, natural gas liquids, or
15
FIRST AMENDED CLASS ACTION COMPLAINTpetroleum refinery processing. According to the United States Occupational Safety and Health
Administration (“OSHA”), hexane is a narcotic and neurotoxic agent which can cause
irritation to the eyes and upper respiratory tract. Commercial hexane also contains benzene, a
known hematologic poison linked to chronic leukemia. The hexane-processed soy ingredients
in Defendant’s Products include soy protein isolate, soy lecithin, and soybean oil.
50. Approximately 95% of all soybean processors in the United States use hexane
as a cheap solvent to extract oil from soybeans in order to make soy oil and protein
ingredients. Whole soybeans are literally bathed in hexane to separate the soybeans’ oil from
protein. Companies like Defendant that market products as “All Natural” because they contain
soy products misleadingly neglect to advise consumers that they use hexane-processed soy
products and that the finished hexane-processed soy products may contain residual hexane.
51. Sey Protein Isolate. Soy Protein Isolate is used as a source of protein. Due to
the significant amount of processing required to extract soy protein from whole soybeans,
including hexane processing, soy protein isolate is classified as a synthetic substance. 7 C.F.R.
§ 205.2. Soy protein isolate is so heavily processed that a Technical Advisory Panel
addressing the requirements of the Organic Foods Production Act of 1990 concluded that it is
a synthetic substance. The spray drying process forms nitrites, potent carcinogens. The
alkaline processing forms lysinoalanine, a toxin. Database of Select Committee on GRAS
Substances (SCOGS) Reviews, Soy Protein Isolate. Residual hexane also may be present in
soy protein isolate.
52. Say Lecithin: Soy lecithin is used in food as an emulsifier, lubricant, and
preservative. Due to the significant amount of processing required to extract soy protein from
whole soybeans, including hexane processing, soy lecithin is classified as a synthetic
substance. 7 C.F.R. § 205.2. Residual hexane also may be present in soy protein isolate.
53. Lecithin: Lecithin is used in food as an emulsifier, lubricant, and preservative.
Due to the significant amount of processing required to manufacture lecithin, lecithin is a
synthetic substance. 7 C.F.R. § 205.2.
54. Canola Oil and Soybean Oil are heavily-processed cooking oils and are not
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FIRST AMENDED CLASS ACTION COMPLAINTnatural.
55. Many types of oil are extracted through processes that allow the oils to retain
the chemical composition occurring in nature. Cold pressed olive oil, for example, is produced
through a mechanical process of compressing the oil from olives. Chemicals may also be used
in the extraction process to obtain a higher yield of oil. However, chemically, the oil at the
end of the process is the same as it was at the beginning of the process.
56. In contrast, the processes used to create the soybean and canola oil used in the
Products go well beyond mere extraction techniques, resulting in chemically altered goods.
Soybean and canola oil typically undergo several distinct chemical processes: (1) hexane
extraction; (2) chemical refining; (3) bleaching; (4) deodorizing; and (5) conditioning:
a. The manufacturer first physically presses the soybeans and rapeseed, which
typically extracts a small portion of the extractable oil. Next, the vegetables are treated
with hexane, a carcinogenic chemical linked to cancer and other major health problems
in studies conducted on animals, to extract the remaining crude oil. Residual hexane
may be present in the final product.
b. After the crude oil has been extracted, the crude oil is treated with sodium
hydroxide and/or phosphoric acid to separate and remove free fatty acids (“FFAs”).
The oil is separated from byproducts using centrifugal separation. Oftentimes
potassium hydroxide, a corrosive acid, also is used in the process.
c, After neutralization, the soybean or canola oil is bleached and deodorized with
additional cleaning solutions and processes to lighten the oil’s color and minimize its
odor.
d. After being bleached and deodorized, the soybean or canola oil typically is
conditioned using phosphoric acid, consumption of which has been linked to lower
bone density as well as chronic kidney disease.
57. Sorbitan Tristerate. Sorbitan Tristearate is a nonionic surfactant used for a
variety of purposes, including as a dispersing agent, emulsifier, and stabilizer, in food and in
aerosol sprays. Sorbitan Tristearate is synthetically manufactured for commercial production
17
FIRST AMENDED CLASS ACTION COMPLAINTand is not natural.
58. Maltodextrin is saccharide polymer that is produced through the non-kitchen-
chemistry process of partial acid and enzymatic hydrolysis of starch. 21 C.F.R. § 184.1444(a).
59. Citric Acid is made synthetically by the fermentation of glucose. The process of
making this citric acid utilizes GE sugar beets and GE corn. It increases the acidity of a
microbe’s environment, which makes it harder for bacteria and mold to survive and reproduce.
Its main purpose is to serve as a preservative.
60. Dextrose is a chemically derived sweetener and is a principal component of
high fructose corn syrup. It is produced through chemical degradation of corn starch by
complete hydrolysis with certain acids or enzymes, followed by commercial refinement and
crystallization of the resulting hydrolysate. It is thus a synthetic substance. On information and
belief, GM corn is used as the source of the dextrose.
61. Xanthan Gum is a polysaccharide derived from the bacterial coat of the
Xanthomonas campesris bacterium. Although derived from a natural bacterium, Xanthan Gum
is commercially manufactured as a sodium, potassium or calcium salt and is considered to be
synthetic by federal regulation. 7 C.F.R. § 205.605(b). Xanthan Gum is used in food products
such as beverages as a thickening or stabilizing agent, and as an emulsifier in salad dressings.
62. Enriched Flour is a highly processed form of wheat flour that has been
rendered into an artificial, unnatural ingredient. Enriched flour is formed when wheat seeds are
ground to remove the outer layer of the seed and rend a fine light brown or yellowish flour.
During this process, almost all nutrients are removed the flour, leaving a product that is void of
its natural nutritional properties. The flour then has synthetic substances added to it in an
attempt to restore nutritional value to the product. Several of these synthetic substances, all of
which are included in the Products containing enriched flour, are described in more detail
below:
a. Niacin is a synthetic form of vitamin B3 formed from 3-methylpyridine.
b. Thiamine Mononitrate is the mononitrate salt of thiamine and is
chemically distinct from naturally-occuring thiamine (or vitamin B1). Thiamine
18
FIRST AMENDED CLASS ACTION COMPLAINTmononitrate is a synthetic substance prepared from thiamine hydrochloride
(also synthetic) by dissolving the hydrochloride salt in alkaline solution
followed by precipitation of the nitrate half-salt with a stoichiometric amount of
nitric acid.
c. Folic Acid is a synthetic substance. Folic Acid is the chemical N -[4-
<(2-amino-1,4-dihydro-4-0xo-6-pteridinyl)methyl]amino]benzoy!]-L-glutamic
acid.. Folic acid is synthetically manufactured. Folic acid differs from natural
folate in numerous respects, including shelf-life and bio-availability. The
molecular structure of folic acid is also different from that of natural folate.
63. Beta-carotene is another synthetic version of natural vitamin A. 21 C.F.R. §
184.1245(a); U.S. International Trade Commission, Synthetic Organic Chemical Index,
USTIC Pub. 2933 (Nov. 1995). It is a food coloring agent. E160a. 21 C.F.R. § 101.22(a)(4)
(“artificial color” or “artificial coloring’). Beta-carotene is isolated from natural sources using
column chromatography and separation by non-polar solvents such as hexane (a synthetic
neurotoxin and environmental hazard).
64. Annatto Extract, Tumeric, Caramel Color, and Beta Carotene are added
colors. Stating its policy, the United States Food and Drug Administration explains, “[s]ince
all added colors result in an artificially colored food, we would object to the declaration of any
added color as ‘food’ or ‘natural.’”°
E. Defendant’s False and Misleading Advertising is Likely to Deceive Reasonable
Consumers
65. Defendant’s false and misleading representations and omissions are likely to
deceive Plaintiff and other reasonable consumers.
66. | Reasonable consumers must and do rely on food label representations and
information in making purchase decisions.
° See Food and Drug Administration Compliance Policy Guideline Manual 578.100 Label Declaration of
Certification-Exempt Color Additives, available at
http://www fda.gov/ICECI/ComplianceManuals/ComplianceP olicyGuidanceManual/ucm074644 htm (last visited
May 18, 2015).
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FIRST AMENDED CLASS ACTION COMPLAINT67. Defendant’s statement that the Products are “All Natural” is material to a
reasonable consumer’s purchase decision because reasonable consumers, such as Plaintiff, care
whether food products contain artificial, synthetic ingredients, ingredients sourced from GM
crops and/or highly-processed ingredients, especially when a product claims to be “All
Natural.”
68. Reasonable consumers attach importance to an “All Natural” claim when
making a purchasing decision.
69. According to a June 2014 consumer survey of a nationally representative
sample of consumers conducted by the Consumer Reports National Research Center, 59% of
consumers look for a “natural” claim when shopping for packaged or processed foods like the
Products.’
70. The June 2014 Consumer Reports Survey found that 64% percent of consumers
think that the “natural” label on packaged and processed foods means that it contains no
GMOs, and 85% of consumers believe that the “natural” label on packaged and processed
foods should mean that it contains no GMOs. The June 2014 Consumer Reports Survey also
found that 66% percent of consumers think that the “natural” label means that no artificial
ingredients were used, and 86% of consumers believe that packaged and processed foods sold
as “natural” should mean that no artificial ingredients were used.
71. Similarly, a 2010 survey conducted by Mintel Group, Ltd. found that 65% of
respondents were “somewhat interested” or “very interested” in natural products and that 62%
of respondents who used natural products agreed that it was worth paying more for certain
types of products labeled “natural.”
72. Defendant markets and advertises the Products as “All Natural” to increase
sales derived from the Products. Defendant is well-aware that claims of food being “All
Natural” are material to reasonable consumers. In November 2014, in an interview with a trade
publication, Defendant’s CEO touted the “all natural” and “non-GMO” attributes of its All
7 Consumer Reports National Research Center Survey Research Report Food Label Survey, available at
hitp://www.greenerchoices.org/pdt/consumerreportsfoodlabelingsurveyjune2014.pdf (last visited May 18, 2015).
20
FIRST AMENDED CLASS ACTION COMPLAINTNatural Cookies as follows: “People always like to eat cookies and then when consumers see
the cookie is also all natural, non- GMO, high in protein and fiber, its appeal is even stronger.
It’s not just like eating a cookie that has a lot of sugar and calories.”
73. Upon information and belief, in making the false, misleading, and deceptive
representations and omissions, Defendant knew and intended that consumers would pay a
price premium for the Products if they were labeled “All Natural.”
F. Plaintiffs’ Reliance and Damages
74, Plaintiff Wiley has purchased several Products in California within the past four
years in reliance on Defendant’s representations that the Products were “All Natural.”
Specifically, within the past four years, Plaintiff Wiley purchased Products including the All
Natural Lemon Poppy Seed Complete Cookie, the All Natural Chocolate Chip Complete
Cookie, the All Natural Double Chocolate Complete Cookie and the All Natural Triple
Chocolate Muscle Brownie at retailers in San Francisco County, including, but not limited to,
7-Eleven and 24 Hour Fitness.
75. The words “All Natural” appeared prominently on each of the Products’
packages. This representation was material to Plaintiff Wiley’s decision to make these
purchases.
76. — Plaintiff Wiley was willing to pay for the Products because of the
representations that they were “AII Natural” and would not have purchased the Products,
would not have paid as much for the Products, or would have purchased alternative products in
the absence of the representations, or with the knowledge that the Products contained artificial,
synthetic ingredients, ingredients sourced from GM crops and/or highly-processed ingredients
that are not all natural.
77. Plaintiff Wiley paid for “All Natural” Products, but she received Products that
were not “All Natural.”
78. The Products that Plaintiff Wiley received were worth less than the products for
* See http://www.bakeryandsnacks.com/Manufacturers/Lenny-Larry-s-high-protein-cookies-boom (last visited
May 18, 2015) (emphasis added).
21
FIRST AMENDED CLASS ACTION COMPLAINTwhich she paid. By purchasing products in reliance on advertising that is false, Plaintiff Wiley
has suffered injury in fact and lost money as a result of the unfair business practices alleged
here.
79. Plaintiff Horsch has purchased several Products in California within the past
four years in reliance on Defendant’s representations that the Products were “All Natural.”
Specifically, within the past four years, Plaintiff Horsch has purchased all varieties of
Defendant’s All Natural Complete Cookies and certain varieties of Defendant’s “All Natural”
Muscle Brownies, most varieties of Defendant’s All Natural Muscle Muffins at retailers in Los
Angeles County, including, but not limited to, Gold’s Gym Nutrition 101, Whole Foods and
Capitol Drugs-Power Zone. Mr. Horsch also has purchased the Products at various retailers
located in New York, New York and Chicago, Illinois.
80. The words “All Natural” appeared prominently on each of the Products’
packages. This representation was material to Plaintiff Horsch’s decision to make these
purchases.
81. Plaintiff Horsch was willing to pay for the Products because of the
representations that they were “AII Natural” and would not have purchased the Products,
would not have paid as much for the Products, or would have purchased alternative products in
the absence of the representations, or with the knowledge that the Products contained artificial,
synthetic ingredients, ingredients sourced from GM crops and/or highly-processed ingredients
that are not all natural.
82. Mr. Horsch paid for “All Natural” Products, but he received Products that were
not “All Natural.”
83. The Products that Mr. Horsch received were worth less than the products for
which he paid. By purchasing products in reliance on advertising that is false, Mr. Horsch has
suffered injury in fact and lost money as a result of the unfair business practices alleged here.
CLASS ACTION ALLEGATIONS
84. Plaintiffs brings this action on their own behalf and on behalf of all persons
similarly situated pursuant to Code of Civil Procedure Section 382. Plaintiff seeks
22
FIRST AMENDED CLASS ACTION COMPLAINTcertification of the following Nationwide and California Classes.
85. The Nationwide Class is initially defined as follows:
All persons residing in the United States who, from the date that
is four years prior to the filing of this Complaint until the date
notice is disseminated to the Class, purchased any of the
Products (the “Nationwide Class”).
86. The California Class is initially defined as follows:
All persons residing in the California who, from the date that is
four years prior to the filing of this Complaint until the date
notice is disseminated to the Class, purchased any of the
Products (the “California Class”).
87. Excluded from each of the above Classes are Defendant, including any entity in
which Defendant has a controlling interest, is a parent or subsidiary, or which is controlled by
Defendant, as well as the officers, directors, affiliates, legal representatives, predecessors,
successors, and assigns of Defendant. Also excluded are the judges and court personnel in this
case and any members of their immediate families, as well as any person who purchased the
Product for the purpose of resale.
88. Plaintiffs reserve the right to amend or modify the Class definitions with greater
specificity or division into subclasses after having had an opportunity to conduct discovery.
89. | Numerosity. Each Class is so numerous that joinder of all members is
unfeasible and not practicable. While the precise number of Class members has not been
determined at this time, Plaintiff is informed and believe that many thousands or millions of
consumers have purchased the Products.
90. Commonality. There are questions of law and fact common to each Class,
which predominate over any questions affecting only individual Class members. These
common questions of law and fact include, without limitation:
a. Whether Defendant uniformly conveyed to the class that the Products were “All
Natural;”
b. Whether Defendant’s claim that the Products are “All Natural” is true or false
or likely to deceive a reasonable consumer;
c. Whether Defendant violated California Civil Code §§ 1750, et seq.;
23
FIRST AMENDED CLASS ACTION COMPLAINTd. Whether Defendant violated California Business and Professions Code §§
17200, et seq.;
e. Whether Defendant breached an express warranty;
f. Whether Defendant violated California’s Sherman Food, Drug, and Cosmetic
Act, Cal. Health & Safety Code §§ 109875, et seq.; and
g. The nature of the relief, including equitable relief, to which Plaintiff and the
Class members are entitled.
91. Typicality. Plaintiffs’ claims are typical of the claims of the Class. Plaintiffs
and all Class members were exposed to uniform practices and sustained injury arising out of
and caused by Defendant’s unlawful conduct.
92. Adequacy of Representation. Plaintiffs will fairly and adequately represent and
protect the interests of the members of the Class. Plaintiffs’ Counsel are competent and
experienced in litigating class actions.
93. Superiority of Class Action. A class action is superior to other available
methods for the fair and efficient adjudication of this controversy since joinder of all the
members of the Class is impracticable. Furthermore, the adjudication of this controversy
through a class action will avoid the possibility of inconsistent and potentially conflicting
adjudication of the asserted claims. There will be no difficulty in the management of this
action as a class action.
94. Injunctive and Declaratory Relief. Defendant’s misrepresentations are uniform
as to all members of the Class. Defendant has acted or refused to act on grounds that apply
generally to the Class, so that final injunctive relief or declaratory relief is appropriate with
respect to the Class as a whole.
FIRST CAUSE OF ACTION
Breach of Express Warranty
(On Behalf of Plaintiffs and the Nationwide Class Or, Alternatively, the California Class)
95. Plaintiffs incorporate all preceding factual allegations as if fully set forth
herein.
24
FIRST AMENDED CLASS ACTION COMPLAINT96. Defendant sold the Products in its regular course of business. Plaintiffs and
Class members purchased the Products.
97. Defendant made a promise and representation to Plaintiffs and Class members
that the Products are “All Natural.” Defendant’s promises and representations constitute an
express warranty that was provided to all consumers, and that became the basis of the bargain
between Plaintiff and Class members on the one hand, and Defendant on the other. Defendant
gave these express warranties to Plaintiffs and Class members in written form on the
packaging of the Products.
98. Defendant’s written affirmations of fact, promises, and/or descriptions as
alleged are each a written warranty.
99. Defendant breached the warranty because the representation on the Products’
packaging that the Products are “All Natural” is false, as the Products did not contain the
properties represented by Defendant.
100. The Products are not “All Natural” because they contain artificial, synthetic
ingredients, ingredients sourced from GM crops and/or highly-processed ingredients that cause
the Products to be not “All Natural.”
101. All conditions precedent to seeking liability under this claim for breach of
express warranty have been performed by Plaintiffs and Class members who paid for the
Products at issue.
102. On February 5, 2015, Plaintiffs provided notice to Defendant of its breaches of
express watranty. Prior to that date, Defendant knew or should have known that its “All
Natural” claims were false because the principal ingredient in its Products is hexane-extracted
soy protein isolate, which is a synthetic substance, which causes the Products to be not “all
natural.” Thus, Defendant has had actual and/or constructive notice that its “All Natural”
claims were and are false and to date has taken no action to remedy its breaches of express
warranty.
103. Defendant’s breaches of warranty have caused Plaintiffs and Class members to
suffer injuries, paying for falsely labeled products, and entering into transactions they would
25
FIRST AMENDED CLASS ACTION COMPLAINTnot have entered into for the consideration that Plaintiffs and Class members paid. As a direct
and proximate result of Defendant's breaches of warranty, Plaintiffs and Class members have
suffered damages and continue to suffer damages, including economic damages in terms of the
difference between the value of the Products as promised and the value of the Products as
delivered.
104. As aresult of the breach of these warranties, Plaintiffs and Class members are
entitled to legal and equitable relief including damages, costs, attorneys’ fees, rescission,
and/or other relief as deemed appropriate, for an amount to compensate them for not receiving
the benefit of their bargain.
SECOND CAUSE OF ACTION
Violation of Consumers Legal Remedies Act — Civil Code § 1750, et seq.
(On Behalf of Plaintiffs and the Nationwide Class Or, Alternatively, the California Class)
105. Plaintiffs incorporate all preceding factual allegations as if fully set forth
herein.
106. This cause of action is brought pursuant to the Consumers Legal Remedies Act,
California Civil Code § 1750, et seq. (the “CLRA”) because Defendant’s actions and conduct
described herein constitute transactions that have resulted in the sale or lease of goods or
services to consumers.
107. Plaintiffs and each member of the California Classes are consumers as defined
by California Civil Code §1761(d).
108. The Products are goods within the meaning of Civil Code §1761(a).
109. Defendant violated the CLRA in at least the following respects:
a. In violation of §1770(a)(2), Defendant misrepresented the source of the
Products as “All Natural,” when they contained artificial, synthetic ingredie
Preview
AHDOOT & WOLFSON, P.C Tina Wolfson (SBN 174806) twolfson@ahdootwolfson.com Robert Ahdoot (SBN 172098) rahdoot@ahdootwolfson.com Keith Custis, Of Counsel (SBN 218818) kcustis@ahdootwolfson.com 1016 Palm Avenue West Hollywood, California 90069 Telephone: 310-474-9111 Facsimile: 310-474-8585 Attorneys for Plaintiffs ODESSA WILEY and RENE’ HORSCH ELECTRONICALLY FILED Superior Court of California, County of San Francisco 05/17/2016 Clerk of the Court BY-:NOELIA RIVERA Deputy Clerk SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO ODESSA WILEY and RENE’ HORSCH, individually and on behalf of all others similarly situated, Plaintiffs, Vv. LENNY & LARRY’S INC., a California Corporation, and DOES 1-50 Defendant. CASE NO. CGC15-545875 FIRST AMENDED CLASS ACTION COMPLAINT JURY TRIAL DEMANDED FIRST AMENDED CLASS ACTION COMPLAINTPlaintiffs Odessa Wiley and René Horsh (“Plaintiffs”), by and through their counsel, brings this First Amended Class Action Complaint against Defendant Lenny & Larry’s, Inc. (“Defendant”), and alleges, upon personal knowledge as to their own actions, and upon information and belief and the investigation of their counsel as to all other matters, as follows: NATURE OF THE CASE 1. This is a consumer protection and false advertising class action. Defendant markets, advertises, distributes and sells a line of high protein “Complete Cookies” under the Lenny & Larry’s brand name, which it prominently labels as “All Natural” and as containing “No GMOs.” Defendant also markets, advertises, and distributes lines of high protein muffins and brownies under the Lenny & Larry’s brand name, which Defendant also prominently labels as “All Natural.” 2. The products that Defendant advertises as “All Natural” and as containing “No GMOs” include the All Natural Complete Cookie Line: ! (a) The All Natural Chocolate Chip Complete Cookie: (b) The All Natural Double Chocolate Complete Cookie; (c) The All Natural Lemon Poppy Seed Complete Cookie; (d) The All Natural Oatmeal Raisin Complete Cookie; (e) The All Natural Peanut Butter Complete Cookie; (f) The All Natural Pumpkin Spice Complete Cookie; (g) The All Natural White Chocolate Macadamia Complete Cookie; and (h) The All Natural Snickerdoodle Complete Cookie. 3. The products that Defendant advertises as “All Natural” include: (a) The All Natural Muscle Brownie Product Line: i, The All Natural Triple Chocolate Muscle Brownie; ii. The All Natural Cookies & Cream Muscle Brownie; ' Defendant may discontinue offering some products and regularly introduces new products that are also falsely and misleadingly labeled “All Natural.” Defendant may also market and sell additional substantially similar products of which Plaintiff is unaware. Plaintiff will ascertain the identity of these additional products through discovery. First AMENDED CLASS ACTION COMPLAINTiii. The All Natural Peanut Butter Muscle Brownie; and iv. The All Natural Caramel Walnut Muscle Brownie. (b) The All Natural Muscle Muffin Product Line: i. The All Natural Blueberry Muscle Muffin; ii. The All Natural Banana Muscle Muffin; iii. The All Natural Pumpkin Muscle Muffin; and iv. The All Natural Double Chocolate Muscle Muffin; (c) The All Natural FIT Protein Brownie Product Line: i. The All Natural Chocolate Decadence FIT Protein Brownie; ii. The All Natural Chocolate Raspberry FIT Protein Brownie; and iii. The All Natural Peanut Butter Crunch FIT Protein Brownie. 4. The foregoing products are collectively referred to in this Complaint as the “Products.” 5. These Products are not “All Natural” for three independent reasons. First, the Products contain ingredients — including soybean oil, soy protein isolate, soy lecithin, canola oil, corn syrup, cornstarch, dextrose, maltodextrin, and beet syrup — that are made from genetically modified (“GM”) crops, including GM soy, GM rapeseed, GM corn and GM sugar beets. 6. A GM crop is a crop whose genetic material has been altered by humans using genetic engineering techniques. The World Health Organization defines genetically modified organisms (“GMOs”), which include GM crops, as “organisms in which the genetic material (DNA) has been altered in a way that does not occur naturally. There are wide-ranging controversies related to GM crops, including health risks from ingesting GM foods and negative environmental effects associated with growing GM crops. The use and labeling of GM foods is the subject of a variety of laws, regulations, and protocols worldwide. GM crops are man-made and are not “all natural.” 7. Second, Defendant’s “All Natural” claims are also false because certain Products contain soy protein isolate, soy lecithin, maltodextrin, dextrose, sorbitan tristearate, 2 FIRST AMENDED CLASS ACTION COMPLAINTxanthan gum, citric acid, niacin, thiamine mononitrate, riboflavin and folic acid, all of which are unnatural, synthetic, and/or artificial. Defendant’s use of these ingredients also causes the Products to be not “All Natural.” 8. Upon information and belief, Defendant uses hexane-processed soy products in its “Al Natural” products. Indeed, the principal source of protein in each of Defendant’s high-protein, “All Natural” Products is hexane-processed soy protein isolate. 9. Approximately 95% of all soybean processors in the United States use hexane as a cheap solvent to extract oil from soybeans in order to make soy oil and protein ingredients. > Hexane is a constituent of gasoline obtained from crude oil, natural gas liquids, or petroleum refinery processing. According to the United States Occupational Safety and Health Administration, hexane is a narcotic and neurotoxic agent, which can cause irritation to the eyes and upper respiratory tract. Commercial hexane also contains benzene, a known hematologic poison linked to chronic leukemia. 10. Third, Defendant’s “All Natural” claims are also false because the GM soybean oil and canola oil used as ingredients in the Products are so heavily processed that they bear no chemical resemblance to the GM crops from which they are derived. Through heavy industrialized processing, the GM soybean oil and canola oil have become man-made, rather than natural. 11. Although the Products are not “All Natural,” Defendant prominently labels every package of the Products sold in California and throughout the United States as “All Natural,” cultivating a wholesome and healthful image in an effort to promote the sale of these products, even though the food products were actually not “All Natural” as they were labeled. 12. Defendant does this because consumers perceive all natural foods as better, healthier, and more wholesome. In fact, the market for all natural foods has grown rapidly in recent years, a trend that Defendant exploits through false advertising. Defendant is keenly ? See hitp://www.perdueagribusinesspa.com/#!about/c21r (last visited May 18, 2015). 3 FIRST AMENDED CLASS ACTION COMPLAINTaware that its “All Natural” claim appeals to consumers. In November 2014, in an interview with a trade publication, Defendant’s CEO touted the “all natural” and “non-GMO” attributes of its All Natural Cookies as follows: “People always like to eat cookies and then when consumers see the cookie is also all natural, non- GMO, high in protein and fiber, its appeal is even stronger. It’s not just like eating a cookie that has a lot of sugar and calories.”* 13. In light of Defendant’s “All Natural” representation, a reasonably prudent consumer would certainly not expect these food products to include artificial, synthetic ingredients, ingredients sourced from GM crops and/or highly-processed ingredients. As a result of such false and misleading labeling, Defendant was able to sell these purportedly “All Natural” products to thousands of unsuspecting consumers in California and throughout the United States while profiting handsomely from these transactions. 14. Any consumer who purchased the Products — irrespective of their motivation. for purchasing the Products — suffered harm in the form of a higher price that Defendant was able to command for the Products based on the false representations that they are “All Natural.” 15. Plaintiff brings claims against Defendant individually and on behalf of all other similarly situated purchasers of the Products for: (1) breach of express warranties; (2) violations of California’s Consumers Legal Remedies Act, Cal. Civ. Code § 1750, et seg.; and (3) violations of California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq. Plaintiff seeks an order requiring Defendant to, among other things: (1) cease the unlawful marketing; (2) conduct a corrective advertising campaign; and (3) pay damages and restitution to Plaintiff in the amounts paid to purchase the products at issue. PARTIES 16. Plaintiff Odessa Wiley is a resident of San Francisco County, California. 17. Plaintiff René Horsch is a resident of Los Angeles County, California. 18. Defendant Lenny & Larry’s, Inc. is a California Corporation with its principal > See http://vww.bakeryandsnacks.com/Manufacturers/Lenny-Larry-s-high-protein-cookies-boom (last visited May 18, 2015) (emphasis added). 4 FIRST AMENDED CLASS ACTION COMPLAINTplace of business located in Northridge, California. Defendant Lenny & Larry’s, Inc. markets, advertises, distributes and sells the Products to consumers throughout California and the United States. 19. Plaintiff is currently ignorant of the true names and capacities, whether individual, corporate, associate, or otherwise, of the defendants sued herein under the fictitious names Does | through 50, inclusive, and therefore sue such defendants by such fictitious names. Plaintiff will amend this complaint to allege the true names and capacities of said fictitiously named defendants when their true names and capacities have been ascertained. Plaintiff is informed and believes and thereon alleges that each of the fictitiously named Doe defendants are legally responsible in some manner for the events and occurrences alleged herein, and for the damages suffered by Plaintiff and members of the Class. JURISDICTION AND VENUE 20. This class action is brought pursuant to the California Code of Civil Procedure Section 382. The damages and restitution sought by Plaintiff exceeds the minimal jurisdiction limit of the Superior Court and will be established according to proof at trial. 21. This Court has jurisdiction over this action pursuant to the California Constitution, Article VI, Section 10, which grants the Superior Court “original jurisdiction in all causes except those given by statute to other courts.” The statutes under which this action is brought do not specify any other basis for jurisdiction. 22. This Court has jurisdiction over the Defendant because, upon information and belief, Defendant is a citizen and/or resident of California. 23. Venue is proper in this Court because, upon information and belief, Defendant transacts business in this County and the acts and omissions alleged herein took place in this County. Plaintiff resided in the San Francisco County at the time she purchased the Products, and continues to live in the San Francisco County. 24. Defendant is incorporated in California, has its principal place of business in Northridge, California and operates, manages and directs its national and international sales and business operations from its offices in California. Defendant has manufacturing, storage 5 FIRST AMENDED CLASS ACTION COMPLAINTand distribution facilities in California, from which Defendant operates and directs the majority of its nationwide sales and business operations. It is therefore believed and averred that the misleading labeling and related misconduct at issue in this Complaint occurred, were conducted and/or were directed primarily from, or at least a substantial proportion emanated from, California, including, but not limited to: (a) the design of the Lenny & Larry’s Products’ packaging; (b) the review, approval and revision of food products and labeling; (c) the selection and integration of ingredients into the Products; (d) the distribution of the Products nationwide; and (e) the management and supervision of sales operations to Plaintiff and the Classes (as defined herein). GENERAL ALLEGATIONS 25. Plaintiff's allegations in this complaint as to her own actions are based on personal knowledge. All other allegations are based on information and belief that they will have evidentiary support, after a reasonable opportunity for further investigation or discovery. Whenever allegations in this complaint are contrary or inconsistent, such allegations shall be deemed to be alleged in the alternative FACTUAL ALLEGATIONS A. Defendant Deceptively Labels The Products As “All Natural” 26. For the four years preceding the filing of this Complaint, Defendant has prominently and conspicuously labeled and advertised the Products as “All Natural.” The labeling and marketing on the Products communicates a straightforward, material message, which is that the “All Natural” Products are 100% natural. However, unbeknownst to Plaintiff, the Products actually contain artificial, synthetic ingredients, ingredients sourced from GM crops and/or highly-processed ingredients, and are not “all natural.” 27. The core deceptive, false, and misleading representations that the Products are “All Natural” is conspicuously and prominently placed on the Products’ packaging for every person to see as soon as they pick up a Product to read it. Hf Hf 6 FIRST AMENDED CLASS ACTION COMPLAINT28. By way of illustration, the “All Natural” representation on the packaging of the the “All Natural” Complete Cookie Product Line currently appears like this: 29. Complete Cookie Product Line appeared like this: For the portions of the Class period, the packaging of the “All Natural” FIRST AMENDED CLASS ACTION COMPLAINT30. The “All Natural” representation on the packaging of the “All Natural” Muscle Brownie Product Line appears like this: GRY (3 a 31. The “All Natural” representation on the packaging of the “All Natural” Muscle Muffin Product Line appears like this: USCLE MUFF HEEIN MUSCLE Ml cao re FIRST AMENDED CLASS ACTION COMPLAINT32. The “All Natural” representation on the packaging of the “All Natural” Fit Brownie Product Line currently appears like this 33. By conspicuously and prominently placing the “All Natural” representations on the Product’s packaging, Defendant has ensured that all consumers purchasing the Products would be exposed to its “All Natural” claims. B. Food Derived From Genetically Modified Organisms Is Not All Natural 34. Genetically modified crops do not occur in nature, and as such are not “All Natural.” On the contrary, genetically modified crops are crops that are genetically manipulated from their natural state. For example, Monsanto, one of the largest producers of genetically modified crop seed, defines genetic modification (or genetic engineering) to mean “[t]he technique of removing, modifying or adding genes to a living organism via genetic engineering or other more traditional methods. Also referred to as gene splicing, recombinant DNA (rDNA) technology or genetic engineering.” Monsanto also defines Genetically Modified Organisms (“GMO”) as “[p]lants or animals that have had their genetic makeup altered to exhibit traits that are not naturally theirs. In general, genes are taken (copied) from one organism that shows a desired trait and transferred into the genetic code of another organism.” 9 FIRST AMENDED CLASS ACTION COMPLAINT35. The World Health Organization’s (“WHO”) definition of GMO is consistent with how Monsanto defines them: “Genetically modified (GM) foods are foods derived from organisms whose genetic material (DNA) has been modified in a way that does not occur naturally, e.g. through the introduction of a gene from a different organism.” WHO also cautions that “All GM foods should be assessed before being allowed on the market.” 36. The United States Environmental Protection Agency (“EPA”) for Prevention, Pesticides, And Toxic Substances, has distinguished between conventional breeding of plants “through natural methods, such as cross-pollination” and genetic engineering. “Conventional breeding is a method in which genes for pesticidal traits are introduced into a plant through natural methods, such as cross-pollination.” “Genetically engineered plant-incorporated protectants are created through a process that utilizes several different modern scientific techniques to introduce a specific pesticide-producing gene into a plant’s DNA genetic material.” 37. Romer Labs, a company that provides diagnostic services to the agricultural industry, including tests to detect and determine the existence of GM crops, defines GM crops as “[a]griculturally important plants [that] are often genetically modified by the insertion of DNA material from outside the organism into the plant’s DNA sequence, allowing the plant to express novel traits that normally would not appear in nature, such as herbicide or insect resistance. Seed harvested from GMO plants will also contain these modifications.” 38. As indicated by the various industry, government and health protection agency organizations cited above, GM crops and GMOs are not “all natural.” In addition, products made from GM crops and GMOs are not “all natural.” 39. The United States Department of Agriculture (“U.S.D.A”) estimates that, as of 2014, approximately 89% of corn, 90% of rapeseed and 94% of soybeans grown in the United States is genetically modified. * Canola oil is made from rapeseed. Nearly 95% of the sugar + See http:/www.ers.usda.gov/media/185551/biotechcrops_d.html (last visited May 18, 2015); see also http://www huffingtonpost.com/margie-kelly/genetically-modified-food_b_2039455 html (last visited May 18, 2015); Economic Research Service, USDA, Genetically engineered varieties of corm, upland cotton, and soybeans, by State and for the United States, 2000-14 (alltables.xls), available at http://vww.ers.usda.gov/data- products/adoption-of-genetically-engineered-crops-in-the-us.aspx#, VBeWqCSdWyR (last visited May 18, 2015). 10 FIRST AMENDED CLASS ACTION COMPLAINTbeets grown in the United States are genetically modified.’ Upon information and belief, the small percentage of these crops that are not GM are organic and are used in USDA Organic- Certified and/or Non-GMO Project Certified products. Defendant’s Products are neither USDA Organic-Certified nor Non-GMO Project Certified. Upon information and belief, given the amount of commingling of agricultural products in grain silos, the soybeans, corn, rapeseed from which Defendant’s ingredients are derived are GM crops. 40. The market for natural products is large and ever growing and consumers are willing to pay a premium for products they believe to be natural, healthy and/or organic. Natural Foods Merchandiser magazine’s 2013 Market Overview reported significant growth for the natural and organic products industry. Gleaning more than $89.4 billion dollars in revenue in 2013 alone, the industry grew ten-and-a-half percent (10.5%) from 2012, revealing that consumers’ desire for natural products is huge and continues to grow. 41. Defendant’s “All Natural” representations are deceptive, false, misleading, and unfair to consumers who are injured in fact by purchasing Products that Defendant claims are “All Natural” when the Products actually contain ingredients made from GM soybeans, corn, rapeseed and sugar beets and, thus, are not all natural. Cc. The Products Are Not “All Natural” Because They Contain Ingredients Sourced From GM Crops, Highly-Processed Ingredients And Other Synthetic Ingredients 42. — The Products contain ingredients derived from GM crops, highly-processed ingredients and/or artificial, synthetic ingredients, and are, thus, not “all natural.” 43. Specifically, although each of the Compete Cookies is labeled “All Natural” and “Non-GMO” and all the other Products are labeled “All Natural,” each of the Products contains the following unnatural ingredients: a. The Chocolate Chip Complete Cookie: . Contains Hexane-Processed Soy Protein Isolate, Canola Oil, and Enriched Wheat Flour (Wheat Flour, Niacin, Iron, Thiamine Mononitrate, Riboflavin, Folic Acid). 5 See http://www.takepart.com/article/20 12/07/20/usda-deregulates-gmo-sugar-beet (last visited May 18, 2015). 11 FIRST AMENDED CLASS ACTION COMPLAINT° Colored with Annatto Extract. The Lemon Poppy Seed Complete Cookie: . Contains Hexane-Processed Soy Protein Isolate, Canola Oil, and Enriched Wheat Flour (Wheat Flour, Niacin, Iron, Thiamine Mononitrate, Riboflavin, Folic Acid). . Colored with Turmeric. The Peanut Butter Complete Cookie: . Contains Hexane-Processed Soy Protein Isolate, Canola Oil, and Enriched Wheat Flour (Wheat Flour, Niacin, Iron, Thiamine Mononitrate, Riboflavin, Folic Acid). ° Colored with Annatto Extract. The Double Chocolate Complete Cookie: . Contains Hexane-Processed Soy Protein Isolate, Canola Oil, and Enriched Wheat Flour (Wheat Flour, Niacin, Iron, Thiamine Mononitrate, Riboflavin, Folic Acid). . Colored with Annatto Extract. The Oatmeal Raisin Complete Cookie: . Contains Hexane-Processed Soy Protein Isolate, Canola Oil, and Enriched Wheat Flour (Wheat Flour, Niacin, Iron, Thiamine Mononitrate, Riboflavin, Folic Acid). . Colored with Annatto Extract. The White Chocolate Macadamia Complete Cookie: . Contains Hexane-Processed Soy Protein Isolate, Canola Oil, and Enriched Wheat Flour (Wheat Flour, Niacin, Iron, Thiamine Mononitrate, Riboflavin, Folic Acid). . Colored with Annatto Extract. The Snickerdoodle Complete Cookie: . Contains Hexane-Processed Soy Protein Isolate, Canola Oil, and 12 FIRST AMENDED CLASS ACTION COMPLAINTEnriched Wheat Flour (Wheat Flour, Niacin, Iron, Thiamine Mononitrate, Riboflavin, Folic Acid).. Double Chocolate Muscle Muffin: Contains Hexane-Processed Soybean Oil, Dextrose, Hexane- Processed Soy Lecithin, Hexane-Processed Soy Protein Isolate, Corn Starch, Lecithin and Wheat Flour (Wheat Flour, Niacin, Tron, Thiamine Mononitrate, Riboflavin, Folic Acid). Blueberry Muscle Muffin: Contains Hexane-Processed Soybean Oil, Hexane-Processed Soy Protein, Corn Starch, Lecithin and Enriched Wheat Flour (Wheat Flour, Niacin, Iron, Thiamine Mononitrate, Riboflavin, Folic Acid). Banana Muscle Muffin: Contains Hexane-Processed Soybean Oil, Water, Hexane- Processed Soy Protein Isolate, Corn Starch, Lecithin and Enriched Wheat Flour (Wheat Flour, Niacin, Iron, Thiamine Mononitrate, Riboflavin, Folic Acid). Pumpkin Muscle Muffin: Contains Hexane-Processed Soybean Oil, Hexane-Processed Soy Protein Isolate, Corn Starch, Lecithin, and Enriched Wheat Flour (Wheat Flour, Niacin, Iron, Thiamine Mononitrate, Riboflavin, Folic Acid). Triple Chocolate Muscle Brownie: Contains Hexane-Processed Soy Isolate, Hexane-Processed Soy Lecithin, Citric Acid, Corn Syrup, Dextrose, Sorbitan Tristearate, Soy Lecithin, Cocoa processed with Alkali, Caparve (cultured Dextrose, Flour and/or Corn Starch). Colored with Beta Carotene. 13 FIRST AMENDED CLASS ACTION COMPLAINTm. Cookies & Cream Muscle Brownie: . Contains Hexane-Processed Soy Isolate, Cornstarch, Maltodextrin, Glycerin, Dextrose, Soy Lecithin, Citric Acid Corn Syrup, Xanthan Gum, Canola Oil, Soy Lecithin, Cocoa Processed with Alkali, Caparve (cultured Dextrose, Flour and/or Corn Starch). . Colored with Beta Carotene and Carmel Color. Peanut Butter Muscle Brownie: . Contains Hexane-Processed Soy Isolate, Hexane-Processed Soy Lecithin, Citric Acid, Vitamin A Palmitate, Corn Syrup, Soy Lecithin, Cocoa processed with Alkali, Caparve (cultured Dextrose, Flour and/or Corn Starch). . Colored with Beta Carotene. The All Natural Caramel Walnut Muscle Brownie. . Contains Hexane-Processed Soy Isolate, Hexane-Processed Soy Lecithin, Citric Acid, Corn Syrup, Dextrose, Cocoa processed with Alkali, Caparve (cultured Dextrose, Flour and/or Corn Starch). . Colored with Beta Carotene and Caramel Coloring. Chocolate Raspberry FIT Protein Brownie: . Contains Corn Starch, Alkalized Cocoa, Beet Syrup, Hexane- Processed Soy Lecithin, Citric Acid, Ascorbic Acid. Chocolate Decadence FIT Protein Brownie: ° Contains Corn Starch, Alkalized Cocoa, Beet Syrup, Hexane- Processed Soy Lecithin. Peanut Butter Crunch FIT Protein Brownie: . Contains Corn Starch, Alkalized Cocoa, Beet Syrup, Hexane- Processed Soy Lecithin. 14 FIRST AMENDED CLASS ACTION COMPLAINT44. Canola Oil: Upon information and belief, the Canola Oil used as an ingredient in Defendant’s Products has been derived from GM rapeseed during the four year period preceding the filing of this Complaint. 45. Soy Protein Isolate, Soybean Oil, Soy lecithin: Upon information and belief, the Soy Protein Isolate, Soybean Oil, Soy lecithin used as an ingredient in Defendant’s Products has been derived from GM soy beans during the four year period preceding the filing of this Complaint. 46. Corn starch, Corn Syrup, Dextrose, Maltodextrin: Upon information and belief, the Corn starch, Corn Syrup, Dextrose, Maltodextrin used as an ingredient in Defendant’s Products has been derived from GM corn during the four year period preceding the filing of this Complaint. 47. Beet syrup: Upon information and belief, the beet syrup used as an ingredient in Defendant’s Products has been derived from GM beets during the four year period preceding the filing of this Complaint. D. The Products Are Not Natural Because They Contain Ingredients That Are Heavily Processed, Chemically-Derived And/Or Are Synthetic And Artificial, Including Hexane-Processed Soy Products 48. Independent of the use of GM crops in the Products, Defendant’s “All Natural” claims are false because the Products contain ingredients that are synthetic and so heavily processed that they no longer are chemically the same as the raw ingredients. The various processes by which the ingredients are synthesized render the final Products chemically derived and non-natural. While they retain the non-natural genetic attributes of the GM crops from which they are sourced, many of the Products’ ingredients no longer bear any natural chemical resemblance to their source crops as a result of the extensive process by which they are refined. 49. Hexane-Processed Soy Ingredients. All of Defendant’s Products contain different types of soy products produced through the use of a volatile synthetic solvent, hexane. Hexane is a constituent of gasoline obtained from crude oil, natural gas liquids, or 15 FIRST AMENDED CLASS ACTION COMPLAINTpetroleum refinery processing. According to the United States Occupational Safety and Health Administration (“OSHA”), hexane is a narcotic and neurotoxic agent which can cause irritation to the eyes and upper respiratory tract. Commercial hexane also contains benzene, a known hematologic poison linked to chronic leukemia. The hexane-processed soy ingredients in Defendant’s Products include soy protein isolate, soy lecithin, and soybean oil. 50. Approximately 95% of all soybean processors in the United States use hexane as a cheap solvent to extract oil from soybeans in order to make soy oil and protein ingredients. Whole soybeans are literally bathed in hexane to separate the soybeans’ oil from protein. Companies like Defendant that market products as “All Natural” because they contain soy products misleadingly neglect to advise consumers that they use hexane-processed soy products and that the finished hexane-processed soy products may contain residual hexane. 51. Sey Protein Isolate. Soy Protein Isolate is used as a source of protein. Due to the significant amount of processing required to extract soy protein from whole soybeans, including hexane processing, soy protein isolate is classified as a synthetic substance. 7 C.F.R. § 205.2. Soy protein isolate is so heavily processed that a Technical Advisory Panel addressing the requirements of the Organic Foods Production Act of 1990 concluded that it is a synthetic substance. The spray drying process forms nitrites, potent carcinogens. The alkaline processing forms lysinoalanine, a toxin. Database of Select Committee on GRAS Substances (SCOGS) Reviews, Soy Protein Isolate. Residual hexane also may be present in soy protein isolate. 52. Say Lecithin: Soy lecithin is used in food as an emulsifier, lubricant, and preservative. Due to the significant amount of processing required to extract soy protein from whole soybeans, including hexane processing, soy lecithin is classified as a synthetic substance. 7 C.F.R. § 205.2. Residual hexane also may be present in soy protein isolate. 53. Lecithin: Lecithin is used in food as an emulsifier, lubricant, and preservative. Due to the significant amount of processing required to manufacture lecithin, lecithin is a synthetic substance. 7 C.F.R. § 205.2. 54. Canola Oil and Soybean Oil are heavily-processed cooking oils and are not 16 FIRST AMENDED CLASS ACTION COMPLAINTnatural. 55. Many types of oil are extracted through processes that allow the oils to retain the chemical composition occurring in nature. Cold pressed olive oil, for example, is produced through a mechanical process of compressing the oil from olives. Chemicals may also be used in the extraction process to obtain a higher yield of oil. However, chemically, the oil at the end of the process is the same as it was at the beginning of the process. 56. In contrast, the processes used to create the soybean and canola oil used in the Products go well beyond mere extraction techniques, resulting in chemically altered goods. Soybean and canola oil typically undergo several distinct chemical processes: (1) hexane extraction; (2) chemical refining; (3) bleaching; (4) deodorizing; and (5) conditioning: a. The manufacturer first physically presses the soybeans and rapeseed, which typically extracts a small portion of the extractable oil. Next, the vegetables are treated with hexane, a carcinogenic chemical linked to cancer and other major health problems in studies conducted on animals, to extract the remaining crude oil. Residual hexane may be present in the final product. b. After the crude oil has been extracted, the crude oil is treated with sodium hydroxide and/or phosphoric acid to separate and remove free fatty acids (“FFAs”). The oil is separated from byproducts using centrifugal separation. Oftentimes potassium hydroxide, a corrosive acid, also is used in the process. c, After neutralization, the soybean or canola oil is bleached and deodorized with additional cleaning solutions and processes to lighten the oil’s color and minimize its odor. d. After being bleached and deodorized, the soybean or canola oil typically is conditioned using phosphoric acid, consumption of which has been linked to lower bone density as well as chronic kidney disease. 57. Sorbitan Tristerate. Sorbitan Tristearate is a nonionic surfactant used for a variety of purposes, including as a dispersing agent, emulsifier, and stabilizer, in food and in aerosol sprays. Sorbitan Tristearate is synthetically manufactured for commercial production 17 FIRST AMENDED CLASS ACTION COMPLAINTand is not natural. 58. Maltodextrin is saccharide polymer that is produced through the non-kitchen- chemistry process of partial acid and enzymatic hydrolysis of starch. 21 C.F.R. § 184.1444(a). 59. Citric Acid is made synthetically by the fermentation of glucose. The process of making this citric acid utilizes GE sugar beets and GE corn. It increases the acidity of a microbe’s environment, which makes it harder for bacteria and mold to survive and reproduce. Its main purpose is to serve as a preservative. 60. Dextrose is a chemically derived sweetener and is a principal component of high fructose corn syrup. It is produced through chemical degradation of corn starch by complete hydrolysis with certain acids or enzymes, followed by commercial refinement and crystallization of the resulting hydrolysate. It is thus a synthetic substance. On information and belief, GM corn is used as the source of the dextrose. 61. Xanthan Gum is a polysaccharide derived from the bacterial coat of the Xanthomonas campesris bacterium. Although derived from a natural bacterium, Xanthan Gum is commercially manufactured as a sodium, potassium or calcium salt and is considered to be synthetic by federal regulation. 7 C.F.R. § 205.605(b). Xanthan Gum is used in food products such as beverages as a thickening or stabilizing agent, and as an emulsifier in salad dressings. 62. Enriched Flour is a highly processed form of wheat flour that has been rendered into an artificial, unnatural ingredient. Enriched flour is formed when wheat seeds are ground to remove the outer layer of the seed and rend a fine light brown or yellowish flour. During this process, almost all nutrients are removed the flour, leaving a product that is void of its natural nutritional properties. The flour then has synthetic substances added to it in an attempt to restore nutritional value to the product. Several of these synthetic substances, all of which are included in the Products containing enriched flour, are described in more detail below: a. Niacin is a synthetic form of vitamin B3 formed from 3-methylpyridine. b. Thiamine Mononitrate is the mononitrate salt of thiamine and is chemically distinct from naturally-occuring thiamine (or vitamin B1). Thiamine 18 FIRST AMENDED CLASS ACTION COMPLAINTmononitrate is a synthetic substance prepared from thiamine hydrochloride (also synthetic) by dissolving the hydrochloride salt in alkaline solution followed by precipitation of the nitrate half-salt with a stoichiometric amount of nitric acid. c. Folic Acid is a synthetic substance. Folic Acid is the chemical N -[4- <(2-amino-1,4-dihydro-4-0xo-6-pteridinyl)methyl]amino]benzoy!]-L-glutamic acid.. Folic acid is synthetically manufactured. Folic acid differs from natural folate in numerous respects, including shelf-life and bio-availability. The molecular structure of folic acid is also different from that of natural folate. 63. Beta-carotene is another synthetic version of natural vitamin A. 21 C.F.R. § 184.1245(a); U.S. International Trade Commission, Synthetic Organic Chemical Index, USTIC Pub. 2933 (Nov. 1995). It is a food coloring agent. E160a. 21 C.F.R. § 101.22(a)(4) (“artificial color” or “artificial coloring’). Beta-carotene is isolated from natural sources using column chromatography and separation by non-polar solvents such as hexane (a synthetic neurotoxin and environmental hazard). 64. Annatto Extract, Tumeric, Caramel Color, and Beta Carotene are added colors. Stating its policy, the United States Food and Drug Administration explains, “[s]ince all added colors result in an artificially colored food, we would object to the declaration of any added color as ‘food’ or ‘natural.’”° E. Defendant’s False and Misleading Advertising is Likely to Deceive Reasonable Consumers 65. Defendant’s false and misleading representations and omissions are likely to deceive Plaintiff and other reasonable consumers. 66. | Reasonable consumers must and do rely on food label representations and information in making purchase decisions. ° See Food and Drug Administration Compliance Policy Guideline Manual 578.100 Label Declaration of Certification-Exempt Color Additives, available at http://www fda.gov/ICECI/ComplianceManuals/ComplianceP olicyGuidanceManual/ucm074644 htm (last visited May 18, 2015). 19 FIRST AMENDED CLASS ACTION COMPLAINT67. Defendant’s statement that the Products are “All Natural” is material to a reasonable consumer’s purchase decision because reasonable consumers, such as Plaintiff, care whether food products contain artificial, synthetic ingredients, ingredients sourced from GM crops and/or highly-processed ingredients, especially when a product claims to be “All Natural.” 68. Reasonable consumers attach importance to an “All Natural” claim when making a purchasing decision. 69. According to a June 2014 consumer survey of a nationally representative sample of consumers conducted by the Consumer Reports National Research Center, 59% of consumers look for a “natural” claim when shopping for packaged or processed foods like the Products.’ 70. The June 2014 Consumer Reports Survey found that 64% percent of consumers think that the “natural” label on packaged and processed foods means that it contains no GMOs, and 85% of consumers believe that the “natural” label on packaged and processed foods should mean that it contains no GMOs. The June 2014 Consumer Reports Survey also found that 66% percent of consumers think that the “natural” label means that no artificial ingredients were used, and 86% of consumers believe that packaged and processed foods sold as “natural” should mean that no artificial ingredients were used. 71. Similarly, a 2010 survey conducted by Mintel Group, Ltd. found that 65% of respondents were “somewhat interested” or “very interested” in natural products and that 62% of respondents who used natural products agreed that it was worth paying more for certain types of products labeled “natural.” 72. Defendant markets and advertises the Products as “All Natural” to increase sales derived from the Products. Defendant is well-aware that claims of food being “All Natural” are material to reasonable consumers. In November 2014, in an interview with a trade publication, Defendant’s CEO touted the “all natural” and “non-GMO” attributes of its All 7 Consumer Reports National Research Center Survey Research Report Food Label Survey, available at hitp://www.greenerchoices.org/pdt/consumerreportsfoodlabelingsurveyjune2014.pdf (last visited May 18, 2015). 20 FIRST AMENDED CLASS ACTION COMPLAINTNatural Cookies as follows: “People always like to eat cookies and then when consumers see the cookie is also all natural, non- GMO, high in protein and fiber, its appeal is even stronger. It’s not just like eating a cookie that has a lot of sugar and calories.” 73. Upon information and belief, in making the false, misleading, and deceptive representations and omissions, Defendant knew and intended that consumers would pay a price premium for the Products if they were labeled “All Natural.” F. Plaintiffs’ Reliance and Damages 74, Plaintiff Wiley has purchased several Products in California within the past four years in reliance on Defendant’s representations that the Products were “All Natural.” Specifically, within the past four years, Plaintiff Wiley purchased Products including the All Natural Lemon Poppy Seed Complete Cookie, the All Natural Chocolate Chip Complete Cookie, the All Natural Double Chocolate Complete Cookie and the All Natural Triple Chocolate Muscle Brownie at retailers in San Francisco County, including, but not limited to, 7-Eleven and 24 Hour Fitness. 75. The words “All Natural” appeared prominently on each of the Products’ packages. This representation was material to Plaintiff Wiley’s decision to make these purchases. 76. — Plaintiff Wiley was willing to pay for the Products because of the representations that they were “AII Natural” and would not have purchased the Products, would not have paid as much for the Products, or would have purchased alternative products in the absence of the representations, or with the knowledge that the Products contained artificial, synthetic ingredients, ingredients sourced from GM crops and/or highly-processed ingredients that are not all natural. 77. Plaintiff Wiley paid for “All Natural” Products, but she received Products that were not “All Natural.” 78. The Products that Plaintiff Wiley received were worth less than the products for * See http://www.bakeryandsnacks.com/Manufacturers/Lenny-Larry-s-high-protein-cookies-boom (last visited May 18, 2015) (emphasis added). 21 FIRST AMENDED CLASS ACTION COMPLAINTwhich she paid. By purchasing products in reliance on advertising that is false, Plaintiff Wiley has suffered injury in fact and lost money as a result of the unfair business practices alleged here. 79. Plaintiff Horsch has purchased several Products in California within the past four years in reliance on Defendant’s representations that the Products were “All Natural.” Specifically, within the past four years, Plaintiff Horsch has purchased all varieties of Defendant’s All Natural Complete Cookies and certain varieties of Defendant’s “All Natural” Muscle Brownies, most varieties of Defendant’s All Natural Muscle Muffins at retailers in Los Angeles County, including, but not limited to, Gold’s Gym Nutrition 101, Whole Foods and Capitol Drugs-Power Zone. Mr. Horsch also has purchased the Products at various retailers located in New York, New York and Chicago, Illinois. 80. The words “All Natural” appeared prominently on each of the Products’ packages. This representation was material to Plaintiff Horsch’s decision to make these purchases. 81. Plaintiff Horsch was willing to pay for the Products because of the representations that they were “AII Natural” and would not have purchased the Products, would not have paid as much for the Products, or would have purchased alternative products in the absence of the representations, or with the knowledge that the Products contained artificial, synthetic ingredients, ingredients sourced from GM crops and/or highly-processed ingredients that are not all natural. 82. Mr. Horsch paid for “All Natural” Products, but he received Products that were not “All Natural.” 83. The Products that Mr. Horsch received were worth less than the products for which he paid. By purchasing products in reliance on advertising that is false, Mr. Horsch has suffered injury in fact and lost money as a result of the unfair business practices alleged here. CLASS ACTION ALLEGATIONS 84. Plaintiffs brings this action on their own behalf and on behalf of all persons similarly situated pursuant to Code of Civil Procedure Section 382. Plaintiff seeks 22 FIRST AMENDED CLASS ACTION COMPLAINTcertification of the following Nationwide and California Classes. 85. The Nationwide Class is initially defined as follows: All persons residing in the United States who, from the date that is four years prior to the filing of this Complaint until the date notice is disseminated to the Class, purchased any of the Products (the “Nationwide Class”). 86. The California Class is initially defined as follows: All persons residing in the California who, from the date that is four years prior to the filing of this Complaint until the date notice is disseminated to the Class, purchased any of the Products (the “California Class”). 87. Excluded from each of the above Classes are Defendant, including any entity in which Defendant has a controlling interest, is a parent or subsidiary, or which is controlled by Defendant, as well as the officers, directors, affiliates, legal representatives, predecessors, successors, and assigns of Defendant. Also excluded are the judges and court personnel in this case and any members of their immediate families, as well as any person who purchased the Product for the purpose of resale. 88. Plaintiffs reserve the right to amend or modify the Class definitions with greater specificity or division into subclasses after having had an opportunity to conduct discovery. 89. | Numerosity. Each Class is so numerous that joinder of all members is unfeasible and not practicable. While the precise number of Class members has not been determined at this time, Plaintiff is informed and believe that many thousands or millions of consumers have purchased the Products. 90. Commonality. There are questions of law and fact common to each Class, which predominate over any questions affecting only individual Class members. These common questions of law and fact include, without limitation: a. Whether Defendant uniformly conveyed to the class that the Products were “All Natural;” b. Whether Defendant’s claim that the Products are “All Natural” is true or false or likely to deceive a reasonable consumer; c. Whether Defendant violated California Civil Code §§ 1750, et seq.; 23 FIRST AMENDED CLASS ACTION COMPLAINTd. Whether Defendant violated California Business and Professions Code §§ 17200, et seq.; e. Whether Defendant breached an express warranty; f. Whether Defendant violated California’s Sherman Food, Drug, and Cosmetic Act, Cal. Health & Safety Code §§ 109875, et seq.; and g. The nature of the relief, including equitable relief, to which Plaintiff and the Class members are entitled. 91. Typicality. Plaintiffs’ claims are typical of the claims of the Class. Plaintiffs and all Class members were exposed to uniform practices and sustained injury arising out of and caused by Defendant’s unlawful conduct. 92. Adequacy of Representation. Plaintiffs will fairly and adequately represent and protect the interests of the members of the Class. Plaintiffs’ Counsel are competent and experienced in litigating class actions. 93. Superiority of Class Action. A class action is superior to other available methods for the fair and efficient adjudication of this controversy since joinder of all the members of the Class is impracticable. Furthermore, the adjudication of this controversy through a class action will avoid the possibility of inconsistent and potentially conflicting adjudication of the asserted claims. There will be no difficulty in the management of this action as a class action. 94. Injunctive and Declaratory Relief. Defendant’s misrepresentations are uniform as to all members of the Class. Defendant has acted or refused to act on grounds that apply generally to the Class, so that final injunctive relief or declaratory relief is appropriate with respect to the Class as a whole. FIRST CAUSE OF ACTION Breach of Express Warranty (On Behalf of Plaintiffs and the Nationwide Class Or, Alternatively, the California Class) 95. Plaintiffs incorporate all preceding factual allegations as if fully set forth herein. 24 FIRST AMENDED CLASS ACTION COMPLAINT96. Defendant sold the Products in its regular course of business. Plaintiffs and Class members purchased the Products. 97. Defendant made a promise and representation to Plaintiffs and Class members that the Products are “All Natural.” Defendant’s promises and representations constitute an express warranty that was provided to all consumers, and that became the basis of the bargain between Plaintiff and Class members on the one hand, and Defendant on the other. Defendant gave these express warranties to Plaintiffs and Class members in written form on the packaging of the Products. 98. Defendant’s written affirmations of fact, promises, and/or descriptions as alleged are each a written warranty. 99. Defendant breached the warranty because the representation on the Products’ packaging that the Products are “All Natural” is false, as the Products did not contain the properties represented by Defendant. 100. The Products are not “All Natural” because they contain artificial, synthetic ingredients, ingredients sourced from GM crops and/or highly-processed ingredients that cause the Products to be not “All Natural.” 101. All conditions precedent to seeking liability under this claim for breach of express warranty have been performed by Plaintiffs and Class members who paid for the Products at issue. 102. On February 5, 2015, Plaintiffs provided notice to Defendant of its breaches of express watranty. Prior to that date, Defendant knew or should have known that its “All Natural” claims were false because the principal ingredient in its Products is hexane-extracted soy protein isolate, which is a synthetic substance, which causes the Products to be not “all natural.” Thus, Defendant has had actual and/or constructive notice that its “All Natural” claims were and are false and to date has taken no action to remedy its breaches of express warranty. 103. Defendant’s breaches of warranty have caused Plaintiffs and Class members to suffer injuries, paying for falsely labeled products, and entering into transactions they would 25 FIRST AMENDED CLASS ACTION COMPLAINTnot have entered into for the consideration that Plaintiffs and Class members paid. As a direct and proximate result of Defendant's breaches of warranty, Plaintiffs and Class members have suffered damages and continue to suffer damages, including economic damages in terms of the difference between the value of the Products as promised and the value of the Products as delivered. 104. As aresult of the breach of these warranties, Plaintiffs and Class members are entitled to legal and equitable relief including damages, costs, attorneys’ fees, rescission, and/or other relief as deemed appropriate, for an amount to compensate them for not receiving the benefit of their bargain. SECOND CAUSE OF ACTION Violation of Consumers Legal Remedies Act — Civil Code § 1750, et seq. (On Behalf of Plaintiffs and the Nationwide Class Or, Alternatively, the California Class) 105. Plaintiffs incorporate all preceding factual allegations as if fully set forth herein. 106. This cause of action is brought pursuant to the Consumers Legal Remedies Act, California Civil Code § 1750, et seq. (the “CLRA”) because Defendant’s actions and conduct described herein constitute transactions that have resulted in the sale or lease of goods or services to consumers. 107. Plaintiffs and each member of the California Classes are consumers as defined by California Civil Code §1761(d). 108. The Products are goods within the meaning of Civil Code §1761(a). 109. Defendant violated the CLRA in at least the following respects: a. In violation of §1770(a)(2), Defendant misrepresented the source of the Products as “All Natural,” when they contained artificial, synthetic ingredie