Barton v. Pret A Manger (USA) Limited

COMPLAINT against Pret A Manger (USA) Limited. (Filing Fee $ 400.00, Receipt Number ANYSDC-20383962)Document filed by Jessica Barton.

Southern District of New York, nysd-1:2020-cv-04815

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2 THE SULTZER LAW GROUP P.C. Jason P. Sultzer Jeremy Francis 85 Civic Center Plaza, Suite 200 Poughkeepsie, New York 12601 Tel: (845) 483-7100 Fax: (888) 749-7747 REESE LLP Michael R. Reese George V. Granade 100 West 93rd Street, 16th Floor New York, New York 10025 Telephone: (212) 643-0500 Fax: (212) 643-0500 Counsel for Plaintiff and the Class UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ––––––––––––––––––––––––––––––––––––––––– x JESSICA BARTON, individually on: behalf of herself and all others similarly: situated,: Case No.: Plaintiff,:: v.:: CLASS ACTION: COMPLAINT: PRET A MANGER (USA) LIMITED,: JURY TRIAL DEMANDED: Defendant.: ––––––––––––––––––––––––––––––––––––––––– x 1 2 Plaintiff, Jessica Barton (hereinafter "Plaintiff"), individually and on behalf of all others similarly situated, by her attorneys, alleges the following upon information and belief, except for those allegations pertaining to Plaintiff, which are based on personal knowledge: NATURE OF THE ACTION 1. This action seeks to remedy the deceptive and misleading business practices of Pret A Manger (USA) Limited (hereinafter "Defendant" or "Pret A Manger") with respect to the marketing and sales of Pret A Manger food products (hereinafter the "Products1") throughout the State of New York and throughout the country: 2. Defendant manufactures, sells, and distributes the Products using a marketing and advertising campaign centered around claims that appeal to health-conscious consumers, i.e., that its Products are "Natural." However, Defendant's advertising and marketing campaign is false, deceptive, and misleading because the Products contain soya, a genetically modified organism ("GMO") as well as numerous other synthetic ingredients. 2 3. Plaintiff and those similarly situated ("Class Members") relied on Defendant's misrepresentations that the Products are "Natural" when purchasing the Products. Plaintiff and Class Members paid a premium for the Products over and above comparable products that did not purport to be "Natural." Given that Plaintiff and Class Members paid a premium for the 1 The Products which Defendant deceptively advertises and labels include the following: Pret Salt & Vinegar Chips, Pret BBQ Chips, Pure Pret Ginger Beer, Pret Cheddar and Tomato Sandwich, Pret Balsamic Chicken & Avocado Sandwich, Pret California Club Sandwich, Pret Chicken & Bacon Sandwich, Pret Egg Salad & Arugula Sandwich, Pret Tuna Salad sandwich, Pret Turkey & Pesto Sandwich, Pret Chicken Caesar & Bacon on Artisan Sandwich, Pret Ham & Cheese Sandwich, Pret Bang Chicken Wrap, Pret Chicken Bacon & Ranch Wrap, Pret Chef's Salad, Pret Chicken Caesar Salad, Pret's Cuban Sandwich, Pret's BBQ Pulled Pork Hot Wrap, Pret's ham & Cheddar Grilled Cheese, Pret's Blueberry Muffin, Pret's Carrot Cake Cookie, Pret's Chocolate Brownie Cookie, Pret's Chocolate Chunk Cookie, Pret's Chocolate Hazelnut Croissant, Pret's Energy Bagel, and Pret's Pan Au Chocolate. 2 Defendant may discontinue offering some products and regularly introduce new products that are also falsely marketed and advertised as "Natural." Defendant may also market and sell substantially similar products of which Plaintiff is unaware. Plaintiff will ascertain the identity of these additional products through discovery. Plaintiff reserves the right to amend this complaint to include additional food items identified through the course of discovery. 2 2 Products based on Defendant's misrepresentations that they are "Natural," Plaintiff and Class Members suffered an injury in the amount of the premium paid. 4. Defendant's conduct violated and continues to violate, inter alia, New York General Business Law §§ 349 and 350, the consumer protection statutes of all 50 states, and the Magnuson-Moss Warranty Act. Defendant breached and continues to breach its express warranties regarding the Products. Defendant has been and continues to be unjustly enriched. Accordingly, Plaintiff brings this action against Defendant on behalf of herself and Class Members who purchased the Products during the applicable statute of limitations period (the "Class Period"). FACTUAL BACKGROUND 5. Consumers have become increasingly concerned about the effects of synthetic and chemical ingredients in food, cleaning products, bath and beauty products and everyday household products. Companies such as Defendant have capitalized on consumers' desires for purportedly "natural products." Indeed, consumers are willing to pay, and have paid, a premium for products branded "natural" over products that contain synthetic ingredients. In 2015, sales of natural products grew 9.5% to $180 billion.3 Reasonable consumers, including Plaintiff and Class Members, value natural products for important reasons, including the belief that they are safer and healthier than alternative products that are not represented as natural. 3 Natural Products Industry Sales up 9.5% to $180bn Says NBJ, FOOD NAVIGATOR, http://www.foodnavigator-; see also Shoshanna Delventhal, Study Shows Surge in Demand for "Natural" Products, INVESTOPEDIA (February 22, 2017), (Study by Kline Research indicated that in 2016, the personal care market reached 9% growth in the U.S. and 8% in the U.K. The trend-driven natural and organic personal care industry is on track to be worth $25.1 million by 2025); Natural living: The next frontier for growth? [NEXT Forecast 2017], NEW HOPE NTWORK (December 20, 2016), lifestyle/natural-living-next-frontier-growth-next-forecast-2017. 3 2 Defendant Deceptively Markets and Advertises the Products as "Natural" 6. Pret A Manger's logo during the Class Period – which appears throughout retail outlets and was prevalently featured on the company's advertisements, and, including but not limited to, signage, employee uniforms, cups, napkins, product packaging, and takeaway bags – contains the representation that it sells "Natural Food." 4 2 5 2 7. In addition to Pret A Manger's logo, prominent signage in its retail outlets states, "Freshly prepared, good, natural food." 6 2 8. The labels for many of the Products state that they are made with "natural ingredients." 7 2 8 2 9. Defendant's representations that the Products are "natural" are false, deceptive, and misleading because the Products contain GMOs and numerous other synthetic ingredients. Defendant's Products Contain Synthetic Ingredients 10. Despite being advertised as "Natural," Pret A Manger Products contain ingredients including maltodextrin (Pret Salt & Vinegar Chips), citric acid (Pret Salt & Vinegar Chips, Pret BBQ Chips, Pure Pret Ginger Beer), lactic acid (Pret Salt & Vinegar Chips), and malic acid (Pret Salt & Vinegar Chips). As explained below, these ingredients are synthetic, and not natural. a. Maltodextrin is recognized as a synthetic by federal regulations. Maltodextrin is a saccharide polymer that is prepared as a white powder or concentrated solution by partial hydrolysis of corn starch, potato starch, or rice starch using acids and enzymes. (72 Fed. Reg. 62149, 62166 (proposed Nov. 2, 2007); 21 C.F.R. § 184.1444). Maltodextrin is primarily used as a carrier or bulking agent. It is a synthetic factory- produced texturizer that is created by complex processing that does not occur in nature. To produce maltodexrin, acids and/or enzymes are applied in sequence to a starch to produce partial hydrolysis (saccharification). The acids or enzymes convert or depolymerize starch to glucose or maltose molecules. Once maltose is high enough for maltodextrin, the acids or enzymes are neutralized, removed, or deactivated. (57 Fed. Reg. 23989 (proposed June 5, 1992)). See also Maltodextrins, GMO COMPASS, Dec. 10, 2008, available at b. Citric Acid (2-hydroxy-propane-1, 2,3-tricarboxylic acid) is a synthetic substance. While the chemical's name has the word "citric" in it, citric acid is no longer 9 2 extracted from the citrus fruit but industrially manufactured by fermenting certain genetically mutant strains of the black mold fungus, Aspergillus niger. c. Malic Acid is the common name for 1-hydroxy-1, 2-ethanedicarboxylic acid. L (+) malic acid, referred to as L-malic acid, occurs naturally in various foods. Racemic DL-malic acid does not occur naturally. It is made commercially by hydration of fumaric acid or maleic acid, and is therefore synthetic. See 21 C.F.R. §184.1069. d. Lactic Acid is a federally-listed synthetic substance that is added to foods as a synthetic flavorant, acidity regulator, and preservative. 21 C.F.R. § 172.515(b); see also Food Ingredients and Colors, E270, Current EU Approved Additives and their E Numbers, Although lactic acid exists naturally in some foods, it must be synthetically formulated for use as a food additive -- as is the case with the Products -- through commercial fermentation of carbohydrates or by using acetaldehyde and hydrogen cyanide to form lactronitrile, which is then chemically degraded via hydrolysis to form lactic acid. 21 C.F.R. § 184.1061(a). 11. In addition, the sandwich bread used in Defendant's sandwich Products contains diacetyl tartaric acid esters of mono- and diglycerides, mono- and diglycerides of fatty acids, and ascorbic acid.4 In 2018, Defendant was censured by an advertising watchdog for advertising its Products as natural despite containing these ingredients, which, as explained below, are synthetic and not natural.5 4 numbers_in_bread.html 5 claim 10 2 e. Ascorbic Acid is a chemical preservative and is synthetic. See 21 C.F.R. § 182.3013. f. Diacetyl tartaric acid esters of mono- and diglycerides, also know as DATEM, are composed of mixed esters of glycerin in which one or more of the hydroxyl groups of glycerin has been esterified by diacetyl tartaric acid and by fatty acids. The ingredient is prepared by the reaction of diacetyl tartaric anhydride with mono- and diglycerides that are derived from edible sources. See 21 C.F.R. § 184.1101. g. Mono- and diglycerides consist of a mixture of glyceryl mono- and diesters, and minor amounts of triesters, that are prepared from fats or oils or fat-forming acids that are derived from edible sources. The most prevalent fatty acids include lauric, linoleic, myristic, oleic, palmitic, and stearic. Mono- and diglycerides are manufactured by the reaction of glycerin with fatty acids or the reaction of glycerin with triglycerides in the presence of an alkaline catalyst. The products are further purified to obtain a mixture of glycerides, free fatty acids, and free glycerin that contains at least 90 percent-by- weight glycerides. See 21 C.F.R. § 184.1505. Defendant's Products Contain GMOs 12. Defendant's representations that the Products are "Natural" is false, misleading, and deceptive because the Products contain soya, which is known to be derived from GMOs and/or to be synthetically produced. 13. The term GM foods or GMOs (genetically-modified organisms) commonly refers to crop plants created for human or animal consumption using the latest molecular biology techniques. 11 2 14. GMOs are not natural because they grow from seeds that have been modified in a laboratory. 15. GMOs are plants that grow from seeds in which DNA splicin