chavez v nestle

7/28/2019 Chavez v Nestle

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Case 2:09-cv-09192-GW-CW Document 1 Filed 12/15/09 Page 1 of 41 Page ID #:1


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Plaintiff Mauricio Chavez (hereinafter, Plaintiff), a Califor

this class action complaint against Defendant Nestl USA, Inc. (heand Does 1-100 (hereinafter referred to collectively as Defendan

and on behalf of a class of all others similarly situated, pursuant

Federal Rules of Civil Procedure, who purchased Defendants Jui

and/or Brain Development beverages at any time from April 2009

Relevant Period). Plaintiffs allegations against Defendant

information and belief, except for allegations specifically pertaining

based upon personal knowledge.

I. JURISDICTION AND VENUE

1. This Court has jurisdiction over this class action 1332(d), which, under the provisions of the Class Action Fairne

provides for the original jurisdiction of the federal courts of any cla

any member of the Class is a citizen of a State different from the

which the matter in controversy exceeds in the aggregate the su

exclusive of interest and costs. Plaintiff seeks certification of a c

who purchased Juicy Juice Immunity and Brain Development bev

2009 to the present. Such persons reside in the 50 United States

Columbia. Defendants are citizens of California and/or Delawar

controversy, exclusive of interest and costs, exceeds $5 million.2. The Court has personal jurisdiction over Defendants

corporation or partnership that has sufficient minimum contact

otherwise intentionally avails itself of the California market through

Case 2:09-cv-09192-GW-CW Document 1 Filed 12/15/09 Page 2 of 41


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3. Venue is proper pursuant to 28 U.S.C. 1391(a) becpart of the events or omissions giving rise to the claim occurred ibecause the Court has personal jurisdiction over Defendants.

4. No other forum would be more convenient for the parto litigate this action.

5. California law applies to all claims set forth in tDefendant Nestl is a California resident and all of the misconduct

contrived, implemented, and has a shared nexus within California

II. NATURE OF ACTION

6. Defendants market and sell Juicy Juice, a brand oconcentrates geared toward children. The U.S. headquarters of NGlendale, California.

7. Defendants claim that Juicy Juice is made from 10added sugars, sweeteners, preservatives or artificial flavors.

8. Defendants advertise, market, promote and sell specJuice beverages commonly known as Juicy Juice Brain Dev

Development) and Juicy Juice Immunity (Immunity).

9. Juicy Juice Immunity and Brain Development beveragTetra Prisma containers, which are purported to maintain the

added nutrients, and sold to consumers for a substantially higher phigher) than Nestls other Juicy Juice beverages.

10. Defendants, in the advertising, marketing, promotionJuice Immunity and Brain Development beverages, have engag



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promoting and promising boosted immunity and increased digesti

inclusion of minute quantities of zinc and prebiotic fiber and a vitamin C in Juicy Juice Immunity beverage; (c) misled and decei

promoting and promising brain development from the inclusion o

of docosahexaenoic acid (DHA) in Juicy Juice Brain Developm

(d) misrepresenting to consumers that Juicy Juice Immunity and

Development beverages are packaged in containers that provide sup

of potency.

11. As a result of the foregoing misrepresentationsDefendants are able to sell Juicy Juice Immunity and Juicy Juice B

beverages for substantially more that the other Juicy Juice and com12. Plaintiff and the consumer class reasonably relied

representations regarding Juicy Juice Immunity and Juicy Juice B

beverages health benefits in purchasing these products. Plaintiff

class were not aware the quantities of supplements added to t

insignificant and provided no benefit as represented. Plaintiff and

have therefore been injured by Defendants unfair and deceptive

13. By these acts, Defendants have violated and are in vio& Prof.Code 17200 et. seq.; Cal. Bus. & Prof. Code 17500; a

1709.14. Accordingly, Plaintiff seeks damages to compensate

consuming more and/or paying higher prices for Juicy Juice Im

Development beverages than they would have but for Defen



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III. PARTIES

15. Plaintiff Mauricio Chavez resides in San Diego Countthe State of California. Plaintiff brings this action individually and

similarly situated. During the Relevant Period, Plaintiff purc

Immunity and Brain Development beverages in San Diego Count

by his children, and, in doing so, relied upon false and misleadi

were prepared by and/or approved by the Defendants and

disseminated through these products packaging, labeling, marke

advertising media.

16. Defendant Nestl is organized and existing under the with its corporate headquarters and principal place of business locBrand Boulevard, Glendale, CA 91203. Nestl is a citizen of eithe

Delaware. Nestl was and is doing business within this Judicial D

to an October 7, 2002 investor presentation, Nestl generated $11

2001, with the beverages division accounting for $1.3 billion,

According to the report, Juicy Juice accounted for $415 million in

17. Defendant Does 1 through 100 are (a) persons, includto, employees of Nestl or (b) entities, including, but not limite

affiliates, manufacturers, distributors and/or their alter egos, who

capacities are presently unknown to Plaintiff, and who thereforefictitious names. Plaintiff is informed and believes, and on that

each of the fictitiously named Defendants perpetrated some or all o

alleged herein and are responsible in some manner for the matte



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19. At all times herein mentioned, each Defendant was employee, co-conspirator and/or joint venturer of each of the othdoing the things alleged in the causes of action stated herein

Defendant was acting within the course and scope of this agen

conspiracy, and/or joint venture, and was acting with the consen

authorization of each of the other Defendants. All actions of e

alleged in the causes of action stated herein, were ratified, approved

by every other Defendant with full knowledge of such acts. De

jointly and severally liable for such actions.

20. Defendants, upon becoming involved with the manufaadvertising, marketing and sale of Juicy Juice Immunity and B

beverages knew or should have known that Defendants claims reg

Immunity and Brain Development beverages, including, but not

regarding these products effect on immunity or brain developme

misleading.

21. Defendants have been aware that they, individually ado not possess requisite scientific evidence to substantiate D

regarding Juicy Juice Immunity and Brain Development beverages

limited to, claims regarding these products effect on immunity or b

22. Defendants affirmatively misrepresented, among otheof Juicy Juice Immunity and Brain Development beverages on im

development in order to convince the public to purchase and use t

IV. CLASS ALLEGATIONS



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controlling interest; and any affiliate, legal representative, hof Defendants; also excluded are any federal, state or local go

entities, any judicial officer presiding over this action and thof his/her immediate family and judicial staff, and any jurorthis action.

24. The Class is sufficiently numerous, as it includes thowho have purchased Juicy Juice Immunity and/or Brain Develo

Thus, joinder of such persons in a single action or bringing all mem

before the Court is impracticable for purposes of Rule 23(a)(1) of th

Civil Procedure. The disposition of the Class members claims i

will substantially benefit both the parties and the Court.

25.

The Class is readily ascertainable through DefendantsNotice can be provided to Class members by publication of notice

newspapers and magazines.

26. There are questions of law and fact common to the ClFederal Rule of Civil Procedure 23(a)(2). Defendants adver

labeling and promotional practices were supplied uniformly to a

Class, so that the questions of law and fact are common to all mem

All Class members were and are similarly affected by having pur

Immunity and/or Brain Development beverages for their intende

purpose as promoted, marketed, advertised, packaged and labeledset forth in detail herein, and the relief sought herein is for the bene

other members of the Class.

27. Plaintiff asserts claims that are typical of the claims of



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Juice Immunity and/or Brain Development beverages and/or purc

Immunity and/or Brain Development beverages that they otherwis28. Plaintiff will fairly and adequately represent and prot

the other Class members for purposes of Federal Rule of Civil P

Plaintiff has no interests antagonistic to those of other Class mem

committed to the vigorous prosecution of this action and has

experienced in litigation of this nature to represent him. Plain

difficulty in the management of this litigation as a class action.

29. Class certification is appropriate under Federal Rule 23(b)(2) because Defendants have acted on grounds that apply gen

so that final injunctive relief or corresponding declaratory relrespecting the Class as a whole. Defendants advertising, marke

promotional practices were supplied uniformly to all members of

30. Class certification is appropriate under Federal Rule 23(b)(3) because common questions of law and fact substantially

any questions that may affect only individual members of the Cl

common questions of law and fact are:

(a) whether Defendants misrepresented or omitte

connection with the promotion, marketing, advertising, packaging, l

the Juicy Juice Immunity and Brain Development beverages;(b) whether Defendants represented that Juicy Ju

Brain Development beverages have characteristics, benefits, uses o

do not have;



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(d) whether Defendants acts and practices in co

promotion, marketing, advertising, packaging, labeling, distributioJuice Immunity and Brain Development beverages violated Califo

Professions Code 17200 et seq., California Business and Profess

et seq., and/or Cal. Civ. Code 1709.

(e) whether Defendants acts and practices in co

promotion, marketing, advertising, packaging, labeling and sale

Immunity and Brain Development beverages unjustly enriched

expense of, and to the detriment of, Plaintiff and other Class mem

(f) whether Defendants conduct, as set forth herein

of the Class and whether they have been damaged by the wronherein, and if so, the measure of those damages and the nature a

relief that should be provided.

31. Proceeding as a class action provides substantial beparties and the Court because this is the most efficient method for th

adjudication of the controversy. Class members have suffere

irreparable harm and damages as a result of Defendants wrongful

of the nature of the individual Class members claims, few, if an

otherwise afford to seek legal redress against Defendants for the w

of herein, and a representative class action is therefore approprmethod of proceeding, and essential to the interests of justice insof

of Class members claims is concerned. Absent a representative

members would continue to suffer losses for which they would ha



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dispositive of the interests of the other Class members who are

adjudications and/or may substantially impede their ability to protV. ALLEGATIONS OF FACT

32. Juicy Juice is a well-known brand of juices and juice ctoward children and sold in the United States by Defendants. Prio

was known as Libbys Juicy Juice, but is now labeled with the Ne

33. Juicy Juice is characterized by Defendants as followFor over 25 years, Nestl JUICY JUICE has helped phealthy kids by providing them with a wide variety of nutr

juice options. All NESTL JUICY JUICE products are 100% real fruit juice, providing an excellent source of Vitamadded sugars or artificial flavors. With 13 flavors and 3 form

from, NESTL JUICY JUICE has the widest variety of fla100% juice product. JUICY JUICE balances the wholesomof real fruit and a delicious taste that will make your childevery glass.

http://www.Nestlusa.com/PubOurBrands/BrandDetails.aspx?lbi

D1FB-4FEB-9F38-75256B68E818 (last accessed December 10, 234. An October 7, 2002 Nestl investor presentation slide

Juicy Juice accounted for $415 million of Nestl USAs beverage

over 30%.

35. The same investor presentation slide deck states the fothe U.S. beverage units initiatives regarding Juicy Juice:

Strategy: - Establish Juicy Juice as moms ofor exceptional child developmen



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- Increase penetration via direct mainfants transition to toddlers

http://www.Nestl.com/Resource.axd?Id=4AA74488-A1E2-4BB

8F997B63C72A (last accessed December 10, 2009.)

36. The investor presentation also lists Leverage Juicy halo as an Opportunity in Kids beverage brands.

37. In April 2009, Defendants indeed leveraged Juicy Jhalo with the launch of two new products, Juicy Juice Immuni

Brain Development.

38. In the April 6, 2009 press release announcing the lastated:

GLENDALE, Calif., April 6 (FoodBizDaily) -- Nestl Jupremiering two products designed to benefit children duristages of their growth and development. Juicy Juice Brain Dand Juicy Juice Immunity are fruit juice beverages made wingredients, fortified with important nutrients and blended wwater to naturally lower the sugar and calorie content.

Juicy Juice Brain Development is the only childrensbeverage on the market currently offering DHA, which makfirst juice beverage choice for 1-2 year-olds. DHA acts a

block for brain development during a childs first two yeawhen their brains triple in size, and experts often recomm

formula fortified with DHA for children who are not br(breast milk is a natural source of DHA)(2). During thidevelopmental phase, Juicy Juice Brain Development, whi16mg of DHA per serving, is designed to provide children enough to drink juice (according to recommendations by thA d f P di t i )(3) ith ti d DHA i th i di t



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the dietary intake of fiber for children may be low enouconcern for children and adolescents.(4) Children three to fiv

consume only 11.4 grams of fiber a day on average,recommended amount is 25 grams per day.(5) Juicy Juice Ione of the few juice beverages targeted towards children th

prebiotic fiber. It is a good source of fiber and contains threserving, which is equivalent to the amount found in a meapple.(6)

Important nutrients such as DHA and prebiotic fiber are ofto incorporate into a childs diet, particularly after a child h

breastfeeding or drinking formula, and before they are ablespectrum of food, said Dr. Yinka Davies, M.D. Juicy Development and Juicy Juice Immunity are additional re

parents to incorporate much needed nutrients into their child

still giving them the great tasting fruit juice beverages that

Like all Juicy Juice products, Juicy Juice Brain DevelopmeJuice Immunity are made with all-natural fruit juice and no ad

preservatives or artificial flavors or colors. What is uniquenew Juicy Juice products is that the juices are blended with fi(70 percent juice, 30 percent water), which results in fewer ca

reduced amount of naturally occurring sugars. The reductand calories through dilution, coupled with essentienhancement, make Juicy Juice Brain Development and Immunity a unique and convenient option in the childrencategory.

Juicy Juice recognized the need for a beverage that accmoms priorities related to her childs diet, said VictoCeleste, Nestl Juicy Juice Marketing Manager. Juicy Development and Juicy Juice Immunity offer excellent valuThey provide important nutrients while also helping momchilds calorie and sugar intake


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please visit http://www.juicyjuice.com/Brain-DevelopImmunity/Default.aspx.

About Nestl USA

Named one of Americas Most Admired Food Companiesmagazine for the eleventh consecutive year, Nestl USA prov

brands and products that bring flavor to life every day. Fromeals with Lean Cuisine(R) to baking traditions with NeHouse(R), Nestl USA makes delicious, convenient, and nuand beverage products that enrich the very experience oThats what Nestl. Good Food, Good Life is all about. Nwith 2007 sales of $8.25 billion, is part of Nestl S.ASwitzerland - the worlds largest food company - with s

billion. For product news and information, visit Nestl

NestlNewsroom.com .

(1). Al MDM, Hornstra G. Long-chain polyunsaturated pregnancy, and pregnancy outcome. Am J C2000;71(suppl):285S-291S.

(2). Innis SM. Dietary omega 3 fatty acids and the develo

Brain Res. 2008. Sep. 9;35-43.

(3). Committee on Nutrition. The use and misuse of frpediatrics. Pediatrics. 2001;107(5):1210-1213.

(4). U.S. Department of Health and Human ServicesDepartment of Agriculture. Dietary Guidelines for AmericanEdition, Washington, DC: U.S. Government Printing Offi2005.http://www.health.gov/dietaryguidelines/dga2005/documenr2.htm


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Release 21. Nutrient Data Laboratory Homhttp://www.ars.usda.gov/ba/bhnrc/ndl (09003, 09206).

39. On or around April 2009, Defendants began producinadvertising, packaging, labeling, distributing and selling the Im

Development beverages throughout the United States under Ne

product line.

40. Since the launch of these products, Defendants have adand labeled the Juicy Juice Immunity and Brain Development bev

that falsely and deceptively misrepresents to consumers that the Im

Development beverages are 100% juice products that provide im

brain development benefits that they do not.41. Despite being sold under Nestls Juicy Juice lab

Immunity and Brain Development beverages are not 100% fruit ju

and Brain Development beverages are juices blended with filtered

30% water. Defendants only point-of-sale reference to the substan

content is through a small, inconspicuous statement on the side

package.


Case 2:09 cv 09192 GW CW Document 1 Filed 12/15/09 Page 15 of 41


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Juicy Juice Brain Development Beverage

42. DHA is an omega-3 fatty acid and is found in colseaweed and fish oil supplements. A long chain polyunsat

(LCPUFA), DHA is highly concentrated in the phospholipid bila

active brain and retinal neural membranes.

43. In recent years, DHA has become a popular infant




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and/or cognitive and behavioral development. However, other

difference or improvement in visual function or brain developmen45. An article in theJournal of the American College of

No. 2, 101-107 (2003), entitled Efficacy and Safety of Docosahe

Arachidonic Acid Addition to Infant Formulas: Can One Buy

Intelligence? remarks:

After much fanfare in the lay press and aggressive markfamilies and professionals by appealing at the emotional levis in the brain, eyes and human milk must be good, the infawith added LCPUFA are rapidly gaining acceptance. Howevwith a dramatic increase in the cost of infant formula feedi25%, although there is little evidence that LCPUFA conta

formula provides clinically significant improved vision and in healthy infants born at term. The added cost is a significanthe family budget and also to public nutrition funding Women, Infants and Children supplemental food prog

provides milk feedings to 47% of the infants in USA.

46. The American Academy of Pediatrics has yet to takabout whether or not DHA should be added to infant formula.

47. There are no DHA-supplemented foods with FDA appspecific health claims about the benefits of DHA supplementation

48. Despite the fact that there is no sound scientific basis -to do so, Defendants affirmatively represent to consumers in adve

marketing materials that Juicy Juice Brain Development bevera

development because the beverage contains 16 mg of DHA per 4

49. Juicy Juice Brain Development beverage prominently




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Remember. The human brain triples in volume between birth and

never too early to start good nutrition habits.51. The product label also directs consumer to the follo

additional information: juicyjuice.com and Nestlusa.com

52. Defendants claims on the Brain Development bevercorrelating DHA with brain development, is a Structure/Fun

Defendants cannot substantiate and affirmatively misleads and misi

because, even if there was a sound scientific link between

development, there is an exceedingly small amount of DHA - 16 m

the product.

53.

Though there is no clear consensus for adequate ininfants and children, the World Health Organization (WHO) ha

per kg of body weight per day for infants.

54. The average 6-month old weighs approximately 16 lbsthe WHO guidelines, the average 6-month old should consume 14

servings, or 36 fl oz of Juicy Juice Brain Development beverage.

55. The average 1-year old weighs approximately 22 lbs, oWHO guidelines, the average 1-year old should consume 200 m

servings, or 50 fl oz of Juicy Juice Brain Development beverage.

56.

Several sources recommend daily intake of at least 22-6 years, which equates to 12.5 servings, or 50 fl oz of J

Development beverage.

57. The amount of Juicy Juice Brain Development beve




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58. Indeed, in the Policy Statement setting forth this recAAP states that excessive juice consumption may be associated diarrhea, flatulence, abdominal distention, and tooth decay.

59. The amount of DHA in Juicy Juice Brain Developmenper serving, is minuscule. In comparison, a 3 oz serving of salmon

of DHA.

60. Furthermore, Defendants deceptively advertise aDevelopment beverages in the regular juice section of the superma

standard Juicy Juice products - not in the infant and childcare sec

placement, the product labeling contains only a small print discla

purported to assist brain development is limited only [i]n childreold. This placement strategy deceptively expands the market for B

beverage.

61. Defendants knew that the advertising, marketing andJuice Brain Development beverage was false and misleading be

DHA-supplementation promotes brain development is unclear,

proven; and (b) assuming DHA does provide such a benefit, the

provided by a serving of Juicy Juice Brain Development beverage

62. Defendants intentionally fail to include any disclaiDevelopment beverage and packaging related to the accuracy of about nutrient content and/or the health benefit claims it affirm

attainable from the amount DHA in each serving of its Brain Deve




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Juicy Juice Immunity Beverage

63. Defendants affirmatively represent to consumers Immunity supports immunity by the inclusion of 100% of the daily

and 10% of the daily value of zinc per serving and contains enoug

support digestive health.

64. Prebiotics are non-digestible food ingredients that stiand/or activity of bacteria in the digestive system which are benefic

g



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65. Using the term as a marketing tool, without regard to delivers any prebiotic benefits, Defendants state on the Juicy Jui

PLUS PREBIOTIC FIBER for Digestive Health.

66. Juicy Juice Immunity contains gum arabic. Gum arabmade of hardened sap taken from two species of the acacia tree and

other things, a thickener in soft drink syrups, hard gummy candies,

M&Ms chocolate candies.

67. Gum arabic has only recently been shown to have a ponly when 10 g are consumed daily by adults. There has been no

with infants or children. The Nutrition Facts panel on Juicy Jui

indicates that an eight oz serving contains only 3 g of dietary fiberproportion of this amount is gum arabic.

68. Juicy Juice Immunity beverage prominently feIMMUNITY on a large pink banner on the product container.

features the statement: VITAMIN C & ZINC for Immunity.

69. This product makes structure function claims based with vitamin C and zinc. Both of these micronutrients play importa

function. So the claims are to help support immunity and cont

immunity. The product contains 100% DV of vitamin C, like a lo

only contains 10% DV for zinc.70. Defendants claims on the Immunity beverage label, c

C and zinc with immunity, is a structure/function claim that D

substantiate and affirmatively misleads and misinforms consume



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causes consumers to believe that Immunity has a greater amount

standard Juicy Juice.

72. The Immunity Beverage does not improve a childs imany way improve immunity. At all relevant times, Defendants w

Immunity Beverage did not materially improve or support a child

73. Defendants launched the Immunity Beverage at a timaware of concerns regarding the pandemic H1N1 flu, and misleadi

beverage to consumers as a way to improve and support their child

74. Defendants knew that the advertising, marketing andJuice Immunity beverage was false and misleading because (a) Imm

more vitamin C that standard Juicy Juice and only 10% DV zinc;gum arabic does provide a prebiotic benefit, the amount of gum ar

serving of Juicy Juice Immunity beverage is miniscule.

75. Defendants intentionally fail to include any disclaiDevelopment beverage and packaging related to the accuracy of

about nutrient content and/or the health benefit claims it affirm

attainable from the amount of DHA in each serving of its Br

beverage.

Tetra Prisma Containers

76.

An additional false, misleading and deceptive claimmake relative to the Juicy Juice Brain Development and Immunity

products are packaged in a superior manner to Juicy Juice

affirmatively representing to consumers that Tetra Prisma pac



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JUICY JUICE Brain Development and Immunity Fruit Juiccome in sleek 33.8 oz (1-liter) Tetra Prisma containers to m

easier and maintain the potency of our added nutrients.

http://www.juicyjuice.com/Products/Brain-Development.aspx (la

December 10, 2009).

78. Defendants falsely and deceptively market and advBrain Development and Immunity beverages product packagi

preserving nutrient content. However, Tetra Prisma containers pro

difference in nutrient retention as compared to other Juicy Juice p

Percent Juice Composition

79. Defendants, through false, misleading and deceptivmarketing, promote and sell the Brain Development and Immunity

the Juicy Juice brand and product line, which Defendants have

widely represented to consumers, as a 100% sugar-free juice line.

Brain Development and Immunity beverages contain only 70% ju

Defendants Marketing and Advertising Practi80. Defendants nationwide advertising campaign tout

health benefits of Juicy Juice Brain Development and Immunity b

massive and comprehensive, conveying the false and misleading sta

herein to consumers throughout the United States. Defendants conv

to convey false and misleading claims regarding Juicy Juice Brain

Immunity beverages primarily through television commercials, but

media, including newspapers, magazines, direct mail, the inter



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82. Defendants created a section of juicyjuice.com, juicDevelopment-And-Immunity, to exclusively promote Juicy Juice Im

Juice Brain Development.

83. Defendants maintain a section on juicyjuice.com titledwhich is designed and intended to persuade consumers of the ben

Development and Immunity beverages. In fact, stating in part: [

the latest expert information on how you can help support your child

brain development and immune system.

84. Defendants misrepresent the benefit of the Brain Deveby intimating to parents that the product can help her shine a little

as set forth on juicyjuice.com:

Juicy Juicy Fruit Juice Beverage is enhanced with DHA, building block for brain development, and comes in deliciougrape flavors. So you can help her shine a little more every

http://www.juicyjuice.com/Products/Brain-Development.aspx

December 10, 2009).85. Defendants maintain a section on juicyjuice.co

Products and a subsection of FAQs that represents the followin

part, about relevant to Juicy Juice Brain Development and Immun

1. What is in NESTL JUICY JUICE BRAIN DEVELFruit Juice Beverage?

NESTL JUICY JUICE BRAIN DEVELOPMENTBeverage contains DHA, also known as Docosahexaenoic ac

f id i f h b d



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happens around 6 to 8 months of age. While fruit juice becertainly be a part of a healthy and varied diet for you

American Academy of Pediatrics (AAP) recommends limitioz. of fruit juice daily for children ages 1-6. If you are unsyour pediatrician.

3. What is DHA and where does it come from?

Docosahexaenoic Acid (DHA) is a type of Omega-3 fatty

found naturally in most tissues of the body and accounts fpercent of total brain mass. The DHA in NESTL JUIBRAIN DEVELOPMENT Fruit Juice Beverage is derived refined tuna fish oil.

While DHA is naturally found in breast milk, once infants eating more solid foods, primary food sources of DHA inclu

(like herring, salmon, sardines, rainbow trout, canned tunameats. More food products are now being fortified with Dchildren and adults can benefit from this important nutrient

4. Why is DHA good for my child?

DHA is a building block for the brain in infants; according

DHA may help support early-age brain and eye de

DHA is naturally found in breast milk, and experts often infant formula fortified with DHA for children wh

breastfeeding. (Kris-Etherton 2007) JUICY JUICDEVELOPMENT Fruit Juice Beverage with DHA is a sma

parents who are ready to introduce juice beverages into their5. Is there such a thing as too much DHA?

Adequate intake of alpha-linolenic acid (ALA), the parent cdocosahexaenoic acid (DHA) for kids ranges from 500 mg



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Health authorities recommend eating two to three fish mealsoverall health. For variety in the diet, it may be advantag

DHA from various food sources. JUICY JUICDEVELOPMENT Fruit Juice Beverage is a kid-friendly juiwhich provides 16mg of DHA per 4 fl. oz. serving.

7. What is in NESTL JUICY JUICE IMMUNITY Beverage?

NESTL JUICY JUICE IMMUNITY Fruit Juice BeveraVitamin C and Zinc which are essential for a healthy immand Prebiotic Fiber to help maintain a healthy digestive sys

8. How much and at what age can I begin serving NESTJUICE IMMUNITY Fruit Juice Beverage to my child?

The best time for your child to start drinking fruit juice bwhen he or she is ready to start drinking from a cup. Thhappens around 6 to 8 months of age. While fruit juice becertainly be a part of a healthy and varied diet for youAmerican Academy of Pediatrics (AAP) recommends limitioz. of fruit juice daily for children ages 1-6. If you are unsyour pediatrician.

9. What is zinc?

Zinc is an essential mineral that supports a healthy immunepromotes the normal growth and development of a child. ANESTL JUICY JUICE IMMUNITY Fruit Juice Bevera10% of the daily value for Zinc.

10. What is prebiotic fiber? Is that the same as probiot

Prebiotic fiber is a non-digestible carbohydrate that promoteof beneficial bacteria (probiotics) that already live in the dig



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Gum acacia, also called gum arabic, is a type of prebiotic widely used in the food industry as an emulsifier and stab

purified from the resin of Acacia trees in Africa.86. Juicyjuice.com contains a section that offers an Imm

Brain Development Quiz. At the close of the immunity quiz, co

to:

Now, try a delicious way to support a healthy immune systeJuicy Juice Immunity Fruit Juice Beverage, containing vitZinc, plus prebiotic fiber for digestive health.

87. At the close of the Brain Development Quiz, consuJuicy Juice Fruit Juice Beverage with DHA- the best first jugive your baby. Made with natural ingredients and no su

youll be pleased with the nutrients. Your child will love t

http://www.juicyjuice.com/Brain-Development-And-Immunity/F

accessed, December 10, 2009).

88. Defendants utilize a Twitter feed, twitter.com/juicyplaced in various places on the Internet, particularly websites spemothers such as BabyCenter.com and CafeMom.com. The ads w

such as How do you stimulate your childs mind? to which mot

can tweet responses that will show up in the ads.

89. Defendants maintain a channel on YouTube,www.youtube.com/juicyjuice, which contains programs entitled

Brain Development with Dr. Yinka Davies, Healthy Digestion

Davies and Five Ways to Boost Immunity with Dr. Yinka Davi



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raise healthy kids by providing them with a wide variety oand delicious juice options.

http://www.youtube.com/user/juicyjuice (last accessed, Decembe

91. Defendants represent Dr. Yinka Davies as an Expfollowing about her:

Were here to help by offering engaging, informative and videos covering some of the most important topics in child dfeaturing our noted pediatric expert, Dr. Yinka Davies.

An award-winning pediatrician, Dr. Davies practiceGastroenterology near Sacramento, CA and shes a CliniProfessor at Stanford University. In addition to her machievements, she brings the experience of yet ano

accomplishment-motherhood.Juicy Juice is very proud to have Dr. Davies as their diexpert. So let Dr. Davies share her tips and advice with you

http://www.juicyjuice.com/Experts/Expert-Videos.aspx (last acce

10, 2009).

Damages to Plaintiff and the Class

92. Defendants inaccurate, false, deceptive and mislemarketing, promotion and labeling, including but not limited to, sta

nutrient content health benefits, packaging benefits, and use of

affirmations, and other such related misconduct alleged herproximately caused Plaintiff and the Class to suffer injury and

property. Plaintiff and the Class have suffered financial loss,

t d h th i b d d b D f d t i



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93. Neither Juicy Juice Immunity nor Juicy Juice Brbeverages actually provide the immunity and brain developme

affirmatively represented to consumers.

94. In fact, Juicy Juice Immunity and Juicy Juice Brbeverages actually contain less fruit juice, are no more nutrit

additional health benefits as compared to substantially cheaper Jui

Juicy JuiceHarvest Surprise

100%juice

46.0 oz -$3.29

$0.07

Juicy Juice100%

juice46.0 oz -$2.59 $0.06

BrainDevelopment

70% juice33.8 oz -$2.99 $0.09

Immunity 70% juice 33.8 oz -$2.99 $0.09

FIRST CLAIM FOR RELIEF(Violation of California Business & Professions C

Section 17200 et seq. - Unfair Conduct)

95. Plaintiff realleges the preceding paragraphs 1 througforth herein and, to the extent necessary, pleads this cause of action

96. Under California Business & Professions Code 1720or practice that is unethical, oppressive, unscrupulous and/or substa

consumers, or that violates a legislatively declared policy, con

business act or practice.

97. Defendants have engaged, and continue to engage, inimmoral, unethical, oppressive, unscrupulous and/or substant



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will provide digestive system benefits that it does not; (4) m

consumers that Juicy Juice Immunity and Juicy Juice Brain Devel

are 100% juice; and (5) misrepresenting to consumers that Juicy Ju

Juicy Juice Brain Development beverages are packaged in conta

superior maintenance of potency. Defendants deceive consume

Juicy Juice Immunity and Juicy Juice Brain Development beverag

belief that, among other things, the persons consuming these proactual health benefits. Defendants scheme was and is immoral, une

unscrupulous and/or substantially injurious to consumers.

98. By committing the acts alleged above, Defendants havbusiness acts and practices which constitute unfair competition wit

California Business & Professions Code 17200.

99. Plaintiff and the Class have all paid money for Juicy JuJuicy Juice Brain Development beverages. However, Plaintiff an

obtain the full value of the advertised products due to Defendants m

regarding the health benefits of said products. Accordingly, Plai

have suffered injury in fact and lost money or property as a result o

of false advertising.

100. An action for injunctive relief and restitution is specunder California Business & Professions Code 17203.

101. Plaintiff has standing to pursue this claim as Plaintiff hin fact and has lost money or property as a result of Defendants a

above.



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SECOND CLAIM FOR RELIEF(Violation of California Business & Professions C

Section 17200 et seq. - Fraudulent Conduct)103. Plaintiff realleges the preceding paragraphs 1 through

forth herein and, to the extent necessary, pleads this cause of action

104. Under California Business & Professions Code 1720or practice that is likely to deceive members of the public const

business act or practice.

105. Defendants have engaged and continue to engage in coto deceive Plaintiff and members of the Class, all of whom are mem

public. This conduct includes, but is not limited to: (1) representing

consumption of Juicy Juice Brain Development beverage wdevelopment benefits that it does not; (2) representing to consumer

of Juicy Juice Immunity beverage will provide immune system b

not; (3) representing to consumers that consumption of Juicy Juice I

will provide digestive system benefits that it does not; (4) m

consumers that Juicy Juice Immunity and Juicy Juice Brain Devel

are 100% juice; and (5) misrepresenting to consumers that Juicy Ju

Juicy Juice Brain Development beverages are packaged in conta

superior maintenance of potency. Defendants deceive consume

Juicy Juice Immunity and Juicy Juice Brain Development beveragbelief that, among other things, the persons consuming these pro

actual health benefits.

106 h h l h b fi h h b i f h i



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107. By committing the acts alleged above, Defendantsfraudulent business acts and practices, which constitute unfair com

meaning of Business & Professions Code 17200.

108. Plaintiff and the Class have all paid money for Juicand/or Juicy Juice Brain Development beverages.

109. However, Plaintiff and the Class did not obtain theadvertised Service due to Defendants misrepresentations regardingof said products. Accordingly, Plaintiff and the Class have suffere

lost money or property as a result of Defendants acts of false adv


THIRD CLAIM FOR RELIEF(Violation of California Business & Profession

Code 17500 et seq.)

111. Plaintiff realleges the preceding paragraphs 1 throughforth herein and, to the extent necessary, pleads this cause of action


above.

113. Class members have suffered injury in fact and haproperty as a result of Defendants actions as set forth above.

114. Defendants engaged in advertising and marketing offered for sale Juicy Juice Immunity and Juicy Juice Brain Devel

i id b i i l di i C lif i



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116. Defendants advertisements and marketing representacharacteristics of Juicy Juice Immunity and Juicy Juice Brain Deve

were false, misleading and deceptive as set forth more fully above

117. At the time Defendants made and disseminated the sherein, Defendants knew, or should have known, that the stateme

misleading, and acted in violation of Cal. Bus. & Prof. Code 175

118. Plaintiff seeks restitution, injunctive relief, and all othunder Cal. Bus. & Prof. Code 17500 et seq.

FOURTH CLAIM FOR RELIEF(Violation of California Civil Code 1709)

119. Plaintiff realleges the preceding paragraphs 1 throughforth herein and, to the extent necessary, pleads this cause of action


above.

121. Class members have suffered injury in fact and haproperty as a result of Defendants actions as set forth above.

122. As set forth in detail above, Defendants produce, manupackage, label, distribute and sell Juicy Juice Immunity and

Development beverages as having special benefits associated with

vitamin C, zinc and prebiotic fiber, when, in fact, neither be

sufficient amounts of said nutrients to substantiate the health c

associated with Juicy Juice Immunity and Juicy Juice Brain Develo



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juice product line, Juicy Juice, despite the fact that neither bevera

fruit juice.

124. Defendants falsely, deceptively and misleadingly, prothe packaging of the Juicy Juice Immunity and Juicy Juice B

beverages as having superior nutrient retaining capabilities.

125. Defendants, through alleged false, deceptive and mislemarketing, labeling and other promotion of Juicy Juice ImmuniBrain Development beverages herein, are making uniform re

omissions that Defendants are under a duty to disclose based on

statements of material fact regarding their products.

126. Defendants engaged in such acts either knowing recklessly disregarding the fact such acts and omissions were, and

misleading.

127. The misrepresentations described herein, false and/oromissions involve material facts in that they were a substantial fact

made by Plaintiff and members of the Class to purchase Juicy JuJuicy Juice Brain Development beverages. Specifically, Plain

members of the Class reasonably relied on misrepresentations i

limited to, the representations that the products provided importa

were nutritionally superior to alternative juice drinks, and were pac

that better prevented nutrient depletion as compared to other juice

128. Plaintiff and other members of Class would have actthey not been misled in that they would not have paid the full amo



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Immunity and Juicy Juice Brain Development beverages bas

statements of material fact detailed above. By not informing P

members of the Class, Defendants breached this duty.

130. Defendants intended to induce Plaintiff and other meto alter their position to their detriment, and they in fact did s

statements.

131. Plaintiff and members of the Class had a reasonable eJuicy Juice Immunity and Juicy Juice Brain Development bev

purchasing were accurately advertised, labeled, marketed and prom

provided the health benefits and other such benefits Defendants c

132. Plaintiff and members of the Class were damaged by Djustifiably and reasonably relied on Defendants misrepresentatio

133. As a result of Defendants deceit, misrepresentationsPlaintiff and other members of the Class have suffered damages in

the amount they paid for Juicy Juice Immunity and Juicy Juice B

beverages or the inflated prices they paid. The exact amount of theproven at trial.

134. Based on the facts detailed above, Defendants actdeceive, or with reckless or negligent disregard of the rights of P

members of the Class, thereby acting with oppression, fraud or ma

the Class members are therefore also entitled to punitive damages

FIFTH CLAIM FOR RELIEF(Violation of California Business & Profession

C d 17200 U l f l C d )



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137. As detailed more fully in the preceding paragraphs, thealleged herein were intended to or did result in the sale of the produ

Cal. Civ. Code 1709 and California Business & Professions Co

138. By violating these laws, Defendants have engaged inacts and practices which constitute unfair competition within the m

& Professions Code 17200.

139. Plaintiff and the Class have all paid money for Juicand/or Juicy Juice Brain Development beverages. However, Plai

did not obtain the full value of the advertised products du

misrepresentations regarding the health benefits of said produc

Plaintiff and the Class have suffered injury in fact and lost mone

result of Defendants acts of false advertising.


PRAYER FOR RELIEF

141. WHEREFORE, Plaintiff and the Class pray for relieA. That the Court determine that the claims allege

maintained as a class action under Rule 23(a), (b)(2) and (b)(3) of th

Civil Procedure;

B. That the Court adjudge and decree that Defendants hconduct alleged herein;

C. That the Defendants be permanently enjoined and restmanner, directly or indirectly, continuing, maintaining, or engag



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Robert FooteMatthew J. HermanCraig MielkeFOOTE, MEYERS, MIFLOWERS, LLC.28 North First St., SuiteGeneva, IL 60134Telephone: (630) 232-6Fax: (630) 845-8982

Email: rmf@foote-meymherman@footcmielke@foote

Kathleen C. ChavezCHAVEZ LAW FIRM28 North First St., Suite

Geneva, IL 60134Telephone: (630) 232-4Fax: (630) 845-8982Email: [email protected]

Peter L. CurrieTHE LAW FIRM OF PCURRIE, P.C.

536 Wing LaneSt. Charles, IL 60174Telephone: (630) 862-1Fax: (630) 845-8982Email: [email protected]

Elizabeth A. FeganHAGENS BERMAN SSHAPIRO LLP820 North Boulevard, SOak Park, IL 60301Telephone: (708) 776-5Fax: (708) 776-5601



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Documents