Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 1 of 65 Page ID #:133

1 THE WESTON FIRM LAW OFFICES OF RONALD A. GREGORY S. WESTON (239944) 2 MARRON, APLC [email protected] RONALD A. MARRON (175650) 3 JACK FITZGERALD (257370) ron@consumersadvocates,com [email protected] 4 SKYE RESENDES (278511) MELANIE PERSINGER (275423) [email protected] 5 mel@westonfirm. com 3636 4th Street,JSuite 202 COURTLAND CREEKMORE (182018) 6 San Diego, CA 921 0S£ 3 courtland@westonfirm. com Telephone: (61 9) 6®^90D5 7 1405 Morena Blvd., Suite 201 Facsimile: (61 9) 5&66S San Diego, CA 92110 >2S2 8 r Telephone: (619)798-2006 m o 9 Facsimile: (480) 247-4553 IE —« Fo r> •• o 10 a: en Counsel for Plaintiffs and the Proposed Classes ^J3 11 UNITED STATES DISTRICT COURT 12 CENTRAL DISTRICT OF CALIFORNIA 13

14 Case No: 2:12-cv-04936 GHK (VBKx) Pleading Type: Class Action 15 ALICE VINSON and LUCINA CALDERA, on behalfofherself and FIRST AMENDED COMPLAINT FOR 16 all others similarly situated, VIOLATIONS OF: 17 Plaintiff, • California Unfair Competition Law; 18 • California Consumer Legal Remedies Act; v. 19 • California False Advertising Law; THE J.M. SMUCKER COMPANY, • Ohio Consumer Sales Practice Act; 20 • Ohio Deceptive Trade Practices Act; and 21 Defendant. • Breach of Implied and Express Warranties

22 DEMAND FOR JURY TRIAL

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28 Vinson, et al v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) First Amended Complaint Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 2 of 65 Page ID #:134

1 TABLE OF CONTENTS

2 I. JURISDICTION AND VENUE ...... 3 3 II. NATURE OF THIS ACTION ...... 3 4 5 III. PARTIES ...... 4 6 IV. FACTS ...... 5 7 8 A. The Role of Cholesterol in Heart Disease ...... 6 9 B. There is Overwhelming Scientific Evidence of the Debilitating and 10 Deadly Effects of Artificial Trans Fat Consumption ...... 8 11 i. Cardiovascular Disease ...... 11 12 13 ii. Type 2 Diabetes ...... 15

14 iii. Breast, Prostate, and Colorectal Cancer ...... 15 15 iv. Alzheimer’s Disease and Cognitive Decline ...... 17 16 17 v. There is No Safe Level of Artificial Trans Fat Consumption ...... 17 18 C. There is a Well-Established Scientific Consensus That Trans Fat is 19 Extremely Harmful ...... 19 20 D. Artificial Trans Fat Is So Inherently Dangerous It Has Been 21 Banned by An Increasing Number of American States and 22 Governments Abroad...... 21

23 V. SPECIFIC MISREPRESENTATIONS, MATERIAL OMISSIONS, 24 AND DECEPTIVE ACTS ...... 22 25 A. Crisco Original & Butter Flavor Shortening ...... 22 26 27 B. Uncrustables Sandwiches ...... 23 28 1 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 3 of 65 Page ID #:135

1 VI. RELIANCE AND INJURY ...... 25 2 VII. DELAYED DISCOVERY ...... 27 3 4 VIII. CLASS ACTION ALLEGATIONS ...... 28

5 A. The Nationwide Class ...... 28 6 B. The California Class ...... 29 7 8 C. The Ohio Class ...... 29 9 IX. FIRST CAUSE OF ACTION ...... 33 10 11 X. SECOND CAUSE OF ACTION ...... 34 12 XI. THIRD CAUSE OF ACTION ...... 36 13 XII. FOURTH CAUSE OF ACTION ...... 37 14 15 XIII. FIFTH CAUSE OF ACTION ...... 40 16 XIV. SIXTH CAUSE OF ACTION ...... 41 17 18 XV. SEVENTH CAUSE OF ACTION ...... 42 19 XVI. EIGHTH CAUSE OF ACTION ...... 43 20 21 XVII. NINTH CAUSE OF ACTION ...... 44

22 XVIII.TENTH CAUSE OF ACTION ...... 45 23 XIX. ELEVENTH CAUSE OF ACTION ...... 47 24 25 XX. TWELFTH CAUSE OF ACTION ...... 48 26 XXI. PRAYER FOR RELIEF ...... 49 27 28 XXII. JURY DEMAND ...... 50 2 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 4 of 65 Page ID #:136

1 Plaintiffs Alice Vinson and Lucina Caldera, on behalf of themselves, all others 2 similarly situated, and the general public, by and through undersigned counsel, hereby 3 sue Defendant The J.M. Smucker Company (“Smucker”) and, upon information and 4 belief and investigation of counsel, allege as follows: 5 I. JURISDICTION AND VENUE 6 1. This Court has original jurisdiction over this action under 28 U.S.C. § 7 1332(d)(2) (The Class Action Fairness Act) because the matter in controversy exceeds 8 the sum or value of $5,000,000 exclusive of interest and costs and because more than 9 two-thirds of the members of the Classes reside in states other than the state of which 10 Defendant is a citizen. 11 2. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because Lucina 12 Caldera resides in and suffered injuries as a result of Defendant’s acts in this District, 13 many of the acts and transactions giving rise to this action occurred in this District, a 14 related action is pending in this District and Defendant (1) is authorized to conduct 15 business in this District and has intentionally availed itself of the laws and markets of this 16 District through the promotion, marketing, distribution, and sale of its products in this 17 District; (2) resides in this District; and (3) is subject to personal jurisdiction in this 18 District. 19 II. NATURE OF THIS ACTION 20 3. Plaintiffs Alice Vinson and Lucina Caldera repeatedly purchased Crisco 21 Original and Butter Flavor Shortening (together, “Crisco”), and Uncrustables Sandwiches 22 (together with Crisco, the “Products”) made by Smucker throughout the Class Periods 23 defined herein. 24 4. Smucker uses various methods to falsely represent the Products as healthful 25 and not harmful to the cardiovascular system; however all of the Products contain 26 dangerous levels of partially hydrogenated vegetable oil (“PHVO”), a food additive 27 28 3 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 5 of 65 Page ID #:137

1 banned in many parts of the world due to its high content of artificial trans fat, a highly 2 toxic carcinogen for which there are many safe and commercially equivalent substitutes. 3 5. Although Smucker has safe substitutes available, including alternative 4 formulations without artificial trans fat, for the Products, it chooses not to use such 5 formulations to increase profit. 6 6. Artificial trans fat raises the risk of coronary heart disease more than any 7 known nutritive product. 8 7. Artificial trans fat causes heart disease by raising the level of “bad” LDL 9 cholesterol and lowering the level of “good” HDL cholesterol. 10 8. Artificial trans fat also causes cancer and type-2 diabetes. 11 9. The proposed class action is necessary to remedy Defendant’s unlawful 12 conduct. Plaintiffs bring class claims for Defendant’s violations of the California Unfair 13 Competition Law, California Consumer Legal Remedies Act, California False 14 Advertising Law, Ohio Consumer Sales Practices Act, Ohio Deceptive Trade Practices 15 Act, and for breach of implied and express warranties. 16 10. Plaintiffs seek an order compelling Smucker to: (1) cease marketing and 17 selling the Products using the false, misleading, deceptive, and unconscionable tactics 18 complained of herein; (2) conduct a corrective advertising campaign; (3) destroy all 19 misleading and deceptive materials and products; (4) award Plaintiffs and other Class 20 members restitution, actual damages, and punitive damages, and to disgorge its profits, to 21 the extent permitted under the laws invoked herein; and (5) pay costs, expenses, and 22 reasonable attorneys’ fees. 23 III. PARTIES 24 11. Defendant The J.M. Smucker Company is an Ohio corporation with its 25 principal place of business in Ohio. Smucker produces and manufactures Uncrustables 26 Sandwiches, Crisco Original Shortening and Crisco Butter Flavor Shortening. 27 12. “Uncrustables,” as used herein, refers to all flavors of Uncrustables sold 28 4 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 6 of 65 Page ID #:138

1 during the class periods defined herein packaged for retail sale. 2 13. Plaintiff Lucina Caldera is a resident of Hacienda Heights, California who 3 repeatedly purchased the Products for her own and her family’s consumption. 4 14. Plaintiff Alice Vinson is a resident of Columbus, Ohio who repeatedly 5 purchased the Products for her own consumption. 6 IV. FACTS 7 15. Plaintiff Alice Vinson has purchased Crisco 5-6 times a year since at least 8 January, 2000. Her most recent purchase of Crisco Original Shortening was early April 9 2012. Her most recent purchase of Crisco Butter Flavor Shortening was approximately 10 July 2011. Ms. Vinson purchases Uncrustables about twice per year. Her most recent 11 purchase of Uncrustables Sandwiches was approximately November 2011. Ms. Vinson’s 12 most recent purchase, as well as nearly all her purchases, were at Kroger, 850 South 13 Hamilton Road, Columbus Ohio, 43213. 14 16. Plaintiff Lucina Caldera regularly purchased the Products in various 15 California stores during each year of the Class Period defined herein. Specifically, Ms. 16 Caldera has purchased one or two units of Crisco per month. Her most recent purchase of 17 Crisco Butter Flavor Shortening was in mid-May 2012, and her most recent purchase of 18 Crisco Original Shortening was in April 2012. Ms. Caldera has purchased Uncrustables 19 approximately ten times, most recently around May 2011 for a hiking trip. Ms. Caldera’s 20 most recent purchases were at Albertsons, 17120 Colima Road, Hacienda Heights, CA 21 91745, where she shops most frequently. However, she has also bought the Products at 22 the following stores: Albertsons 13003 Whittier Blvd., Whittier, CA 90602; Stater 23 Brothers 11750 E. Whittier Blvd, Whittier., CA 90601; Stater Brothers 14212 Mulberry 24 Drive, Whittier, CA 90604; Vons 2122 South Hacienda Blvd., Hacienda Heights, CA 25 91745; Vons 15740 Laforge Street, Whittier, CA 90603; Costco 17550 Castleton Street, 26 City of Industry, CA 91748; Ralphs 14919 Whittier Blvd., Whittier, CA 90605; Ralphs 27 28 5 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 7 of 65 Page ID #:139

1 8510 Painter Avenue, Whittier, CA 90605; and Ralphs, Gale Street, Hacienda Heights, 2 CA 91745 (location now closed). 3 17. Ms. Vinson and Ms. Caldera first discovered Smucker’s unlawful acts 4 described herein in May, 2012, when they learned that the Products contained artificial 5 trans fat, and caused heart disease, diabetes, cancer, and death. 6 18. Plaintiffs, in the exercise of reasonable diligence, could not have discovered 7 earlier Smucker’s unlawful acts described herein because the dangers of artificial trans 8 fats were known to Smucker, but not to them, throughout the Class Period defined herein. 9 Plaintiffs are not nutritionists, food experts, or food scientists, but rather lay consumers 10 who did not have the specialized knowledge that Smucker had, which otherwise would 11 have enabled them to associate partially hydrogenated oil with artificial trans fat, and 12 artificial trans fat with disease. Even today the nature and extensive utilization of 13 artificial trans fats—including that they necessarily exist where partially hydrogenated oil 14 is used as an ingredient in a food product—is largely unknown to the average consumer. 15 19. When purchasing the Products during the Class Period, Plaintiffs read and 16 relied on various health and wellness claims appearing on their packaging (as further 17 described herein), which individually and especially in the context of their packaging as a 18 whole, misleadingly implied that the Products are healthy. Plaintiffs would not have 19 purchased these products absent these advertisements. 20 20. Because Plaintiffs expected these statements to be true and honest when they 21 are in fact false and misleading, they did not receive the benefit of their purchase. Instead 22 of receiving the benefit of products free of trans fat or more healthful than butter, they 23 received products that contained trans fat and were far less healthful than butter. 24 A. The Role of Cholesterol in Heart Disease 25 21. Cholesterol is a sterol, a subgroup of steroids, which are a class of organic 26 molecule that occurs naturally in plants, animals and fungi. 27 22. Cholesterol is a waxy, fat-like substance found in the body’s cell walls. 28 6 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 8 of 65 Page ID #:140

1 23. The body uses cholesterol to make hormones, bile acids, vitamin D, and 2 other substances. 3 24. The human body synthesizes all the cholesterol it needs, which circulates in 4 the bloodstream in packages called lipoproteins. 5 25. There are two primary groups of lipoproteins, low density lipoprotein 6 (“LDL”) and high density lipoprotein (“HDL”). 7 26. LDL cholesterol is called “bad” cholesterol because it carries cholesterol to 8 tissues, including the arteries. Most cholesterol in blood is LDL cholesterol. The higher 9 the level of LDL cholesterol, the greater the risk for heart disease. 10 27. HDL cholesterol is called “good” cholesterol because it takes excess 11 cholesterol away from tissues to the liver, where it is removed from the body. A low level 12 of HDL cholesterol increases the risk for heart disease. 13 28. If there is too much cholesterol in the blood, some of the excess becomes 14 trapped along artery walls. Built up formations of cholesterol on arteries and blood 15 vessels is called plaque. Plaque narrows vessels and make them less flexible, a condition 16 called atherosclerosis. 17 29. This process can happen to the coronary arteries in the heart and restricts the 18 provision of oxygen and nutrients to the heart, causing chest pain or angina. 19 30. Cholesterol-rich plaques can also burst, causing a blood clot to form over the 20 plaque, blocking blood flow through the artery and causing an often-deadly or 21 debilitating myocardial infarction, commonly known as a heart attack. 22 31. When atherosclerosis affects the coronary arteries, the condition is called 23 coronary heart disease (“CHD”), and is sometimes referred to simply as “heart disease.” 24 32. The following represents total cholesterol, LDL cholesterol, and HDL 25 cholesterol guidelines (measured as milligrams per deciliter of blood) promulgated by the 26 U.S. Department of Health & Human Services, the National Institutes of Health, and the 27 National Heart, Lung and Blood Institute: 28 7 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 9 of 65 Page ID #:141

1 Total Cholesterol 2 Less than 200 mg/dL Desirable 3 200-239 mg/dL Borderline High 4 240 mg/dL and above High 5 LDL Cholesterol 6 Less than 100 mg/dL Optimal (Ideal) 7 100-129 mg/dL Near Optimal 130-159 mg/dL Borderline High 8 160-189 mg/dL High 9 190 mg/dL and above Very High 10 HDL Cholesterol 11 Less than 40 mg/dL Major Heart Disease 12 Risk Factor 13 50 mg/dL and above Gives Some Protection Against Heart Disease 14 15 33. The consumption of saturated fat negatively affects blood cholesterol levels 16 because the body reacts to saturated fat by producing cholesterol. This has a greater effect 17 on cholesterol levels than the direct consumption of dietary cholesterol. 18 34. But it is the consumption of artificial trans fat that has the most pernicious 19 and dramatic effect on blood cholesterol of any known nutrient, far wose than saturated 20 fat, because the consumption of artificial trans fat both increases “bad” LDL cholesterol 21 and decreases “good” HDL cholesterol. 22 B. There is Overwhelming Scientific Evidence of the Debilitating and Deadly 23 Effects of Artificial Trans Fat Consumption 24 35. One subtype of trans fat is naturally found in trace amounts in foods derived 25 26 27 28 8 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 10 of 65 Page ID #:142

1 from ruminant animals, primarily in cow’s milk and red meat.1 It is also found in small 2 quantities in human breast milk. Also known as vaccenic acid, this natural trans fat has 3 never been linked to any negative health effect in human beings and is chemically 4 different from factory-made artificial trans fat Smucker makes extensive use of in its 5 products. Initial studies on rats indicate that consumption of vaccenic acid is beneficial to 6 health.2 7 36. Artificial trans fat, by contrast, is manufactured via an industrial process 8 called partial hydrogenation, in which hydrogen atoms are added to normal vegetable oil 9 by heating the oil to temperatures above 400 degrees Fahrenheit in the presence of ion 10 donor catalyst metals such as rhodium, ruthenium, and nickel.3 The resulting product is 11 known as partially hydrogenated vegetable oil, or PHVO, which is the main source of 12 trans fat in the American diet and used in dangerous quantities in the Products. 13 37. PHVO was invented in 1901 and patented in 1902 by German chemist 14 Wilhelm Normann. PHVO molecules chemically differ from the natural fat molecules in 15 other food products. The industrial process that adds hydrogen ions to normal vegetable 16 oil improves food texture and permits food products to withstand heavy mechanical 17 processing and high temperatures.4 18 38. Natural fat, except the trace amounts of natural trans fat from ruminant 19 1 20 Dariush Mozaffarian et al., Trans Fatty Acids and Cardiovascular Disease, 354 New Eng. J. Med. 1601, 1608 (2008). 21 2 Ye Wang et al., Trans-11 Vaccenic Acid Dietary Supplementation Induces 22 Hypolipidemic Effects on JCR:LA-cp Rats, 138 J. Nutrition 2117 (November 2008). 23 3 See Alice H. Lichtenstein, Trans Fatty Acids, Plasma Lipid Levels, and Risk of 24 Developing Cardiovascular Disease, 95 Circulation 2588, 2588-90 (1997).

25 4 See Alberto Ascherio et al., Trans Fatty Acids & Coronary Heart Disease, 340 New 26 Eng. J. Med. 94, 94-8 (1999). See also Ctr. for Food Safety & Applied Nutrition, U.S. Food & Drug Admin., Questions & Answers About Trans Fat Nutrition Labeling (Update 27 2006) (2003), available at http://www.cfsan.fda.gov/%7Edms/qatrans2.html 28 9 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 11 of 65 Page ID #:143

1 animals, comes in two varieties: (1) fats that lack carbon double bonds (“saturated fat”) 2 and (2) fats that have carbon double bonds with the hydrogen atoms on the same side on 3 the carbon chain (“cis fat”). Trans fat, however, has double bonds on opposite sides of its 4 carbon chain. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 39. PHVO was initially a “wonder product” attractive to the packaged food 19 industry because it combines the low cost of unsaturated cis fat with the flexibility and 20 long shelf life of saturated fat. Like cis fat, PHVO is manufactured from lower-cost 21 legumes,5 while saturated fat is derived from relatively expensive animal and tropical 22 plant sources.6 Given its versatility, PHVO was recently used in 40 percent of processed 23 24 25

26 5 e.g., corn oil, soybean oil, peanut oil

27 6 e.g., butter, cream, tallow, coconut oil 28 10 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 12 of 65 Page ID #:144

1 packaged foods.7 Now, because of health concerns, that percentage is far lower. Smucker, 2 however, has decided not to follow its more responsible peers and cease using PHVO, but 3 rather change its marketing to deceive and mislead its customers as it poisons them with 4 the Products. 5 40. Artificial trans fat does not exist in nature, and the human body has not 6 evolved to digest it. The same unusual and unnatural chemical structure that gives 7 artificial trans fat properties attractive from an industrial perspective makes it highly 8 toxic to human health. 9 41. In particular, PHVO causes cardiovascular heart disease, diabetes, cancer, 10 Alzheimer’s disease and accelerates cognitive decline in diabetics. 11 42. While many packaged food manufacturers have removed PHVO from their 12 products as its extreme damage to human health has become ever clearer, Smucker has 13 chosen to continue to gravely harm its customers by continuing to use PHVO in its 14 products. 15 i. Cardiovascular Disease 16 43. Trans fat raises the risk of CHD more than any other known nutritive 17 product.8 18 44. Removing 2% of daily calories from trans fat from the American diet 19 “would prevent approximately 30,000 premature coronary deaths per year, and 20 epidemiologic evidence suggests this number is closer to 100,0000 premature deaths 21 22 23

24 7 25 Mary Carmichael, The Skinny on Bad Fat, Newsweek, Dec. 1, 2003, at 66. See also Kim Severson, Hidden Killer. It’s Trans Fat. It’s Dangerous. And It’s In Food You Eat 26 Every Day, S.F. Chron., Jan. 30, 2002.

27 8 Mozaffarian, 354 New Eng. J. Med. at 1603. 28 11 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 13 of 65 Page ID #:145

1 annually.”9 2 45. “10 to 19 percent of CHD events in the United States could be averted by 3 reducing the intake of trans fat.”10 4 46. By raising LDL levels and lowering HDL levels, trans fat causes a wide 5 variety of dangerous heart conditions, including low flow-mediated vasodilation, 6 coronary artery disease, and primary cardiac arrest. 7 47. In a joint Dietary Guidelines Advisory Committee Report, the Department of 8 Health and Human Services and the U.S. Department of Agriculture recognized “[t]he 9 relationship between trans fatty acid intake and LDL cholesterol is direct and 10 progressive, increasing the risk of cardiovascular disease.”11 11 48. Food products with artificial trans fat damage the heart by “rais[ing] the 12 concentration of the most dangerous form of serum cholesterol (LDL cholesterol)” and 13 “lower[ing] a protective form of serum cholesterol (HDL cholesterol).”12 14 49. The American Heart Association warns, “trans fats raise your bad (LDL) 15 cholesterol levels and lower your good (HDL) cholesterol levels. Eating trans fats 16 increases your risk of developing heart disease.”13 17 50. After a review of literature on the connection between the consumption of 18 artificial trans fat and coronary heart disease, the FDA concluded: 19

20 9 Alberto Ascherio et al., Trans Fatty Acids & Coronary Heart Disease, 340 New Eng. J. 21 Med. 94, 94-8 (1999). 22 10 See id. at 1611. 23 11 Dep’t of Health & Human Serv. & U.S. Dep’t of Agric., 2005 Dietary Guidelines 24 Advisory Committee Report, Section 10 (2005). 25 12 Id. 26 13 Am. Heart Ass’n., Trans Fat Overview, available at 27 http://www.americanheart.org/presenter.jhtml?identifier=3045792. 28 12 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 14 of 65 Page ID #:146

1 [B]ased on the consistent results across a number of the most persuasive 2 types of study designs (i.e., intervention trials and prospective cohort 3 studies) that were conducted using a range of test conditions and across 4 different geographical regions and populations . . . the available evidence for 5 an adverse relationship between trans fat intake and CHD risk is strong.14 6 51. The FDA further found “[t]o date, there have been no reports issued by 7 authoritative sources that provide a level of trans fat in the diet . . . below which there is 8 no risk of [Coronary Heart Disease].” 75 Fed. Reg. 76526, 76542 (Dec. 8, 2010). Rather, 9 there “is a positive linear trend between trans fatty acid intake and LDL cholesterol 10 concentration, and therefore there is a positive relationship between trans fatty acid 11 intake and the risk of CHD.” Id. 12 52. A study on the impact of trans fatty acids on heart health provides evidence 13 that: 14 [E]ven the lower estimates from the effects [of PHVO] on blood lipids 15 would suggest that more than 30,000 deaths per year may be due to the 16 consumption of partially hydrogenated vegetable fat. Furthermore, the 17 number of attributable cases of nonfatal coronary heart disease will be even 18 larger.15 19 53. Since “the adverse effect of trans fatty acids is stronger than that of saturated 20 fatty acids,” saturated fat consumption would need to be reduced by 10 percent of daily 21 caloric intake to have the same impact as a reduction of trans fat equal to 2 percent of 22 23

24 14 25 Ctr. for Food Safety & Applied Nutrition, U.S. Food & Drug Admin., Questions & Answers About Trans Fat Nutrition Labeling. 26 15 W.C. Willett et al., Trans Fatty Acids: Are the Effects only Marginal? 84 Am. J. Pub. 27 Health 722, 723 (1994). 28 13 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 15 of 65 Page ID #:147

1 caloric intake.16 2 54. After conducting a crossover diet trial, Danish researchers determined that 3 healthy men and women who maintained a high-trans fat diet had 21 percent lower 4 protective HDL levels and 29 percent lower flow-mediated vasodilation (“FMD”) than 5 those on a high-saturated fat diet. FMD measures the percent increase between the 6 diameter of the artery at ordinary and at maximum dilation, and low FMD is “a risk 7 marker of coronary heart disease.17 8 55. Australian researchers observed that heart attack patients possess elevated 9 amounts of trans fat in their adipose tissue, strongly linking heart disease with long-term 10 consumption of trans fat.18 11 56. By taking blood samples from 179 survivors of cardiac arrest and 285 12 randomly-selected control patients and comparing the top fifth with the bottom fifth of 13 participants by trans fat intake, another study published in the American Heart 14 Association’s Circulation found that the largest consumers of trans fat have three times 15 the risk of suffering primary cardiac arrest, even after controlling for a variety of medical 16 and lifestyle risk factors.19 17 18 19 20 21 16 Mozaffarian, 354 New Eng. J. Med. at 1609.

22 17 Nicole M. De Roos et al., Replacement of Dietary Saturated Fatty Acids by Trans 23 Fatty Acids Lowers Serum HDL Cholesterol and Impairs Endothelial Function in Healthy Men and Women, 21 Am. Heart Assoc. 1233, 1233-37 (2001). 24 18 25 Peter M. Clifton et al., Trans Fatty Acids In Adipose Tissue And The Food Supply Are Associated With Myocardial Infarction. 134 J. of Nutrition 874, 874-79 (2004). 26 19 Rozenn N. Lemaitre et al., Cell Membrane Trans-Fatty Acids and the Risk of Primary 27 Cardiac Arrest, 105 Circulation 697, 697-701 (2002). 28 14 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 16 of 65 Page ID #:148

1 ii. Type 2 Diabetes 2 57. Artificial trans fat causes type 2 diabetes.20 3 58. In particular, trans fat disrupts the body’s glucose and insulin regulation 4 system by incorporating itself into cell membranes, causing the insulin receptors on cell 5 walls to malfunction, and in turn elevating blood glucose levels and stimulating further 6 release of insulin. 7 59. Researchers at Northwestern University’s medical school found mice show 8 multiple markers of type-2 diabetes after eating a high trans fat diet for only four 9 weeks.21 10 60. By the eighth week of the study, mice fed the diet high in trans fat showed a 11 500% increase compared to the control group in hepatic interleukin-1β gene expression, 12 one such marker of diabetes, indicating the extreme stress artificial trans fat places on the 13 body.22 14 61. A 14-year study of 84,204 women found that for every 2 percent increase in 15 energy intake from artificial trans fat, the relative risk of type-2 diabetes was increased 16 by 39 percent.23 17 iii. Breast, Prostate, and Colorectal Cancer 18 62. Trans fat is a carcinogen and causes breast, prostate, and colorectal cancer. 19 63. A 13-year study of 19,934 French women showed 75 percent more women 20

21 20 22 Am. Heart Ass’n., Trans Fat Overview. 23 21 Sean W. P. Koppe et al., Trans fat feeding results in higher serum alanine aminotransferase and increased insulin resistance compared with a standard murine 24 high-fat diet, 297 Am. J. Physiol. Gastrointest Liver Physiol. G378-84 (2009). 25 22 Id. 26 23 Jorge Salmeron et al., Dietary Fat Intake and Risk of Type 2 Diabetes in Women, 73 27 Am. J. of Clinical Nutrition 1019, 1023 (2001). 28 15 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 17 of 65 Page ID #:149

1 contracted breast cancer in the highest quintile of trans fat consumption than did those in 2 the lowest.24 3 64. In a 25-year study of 14,916 U.S. physicians, the doctors in the highest 4 quintile of trans fat intake had over more than double the risk of developing prostate 5 cancer than the doctors in the lowest quintile.25 6 65. A study of 1,012 American males observing trans fat intake and the risk of 7 prostate cancer found “[c]ompared with the lowest quartile of total trans-fatty acid 8 consumption, the higher quartiles gave odds ratios (ORs) equal to 1.58,” meaning those 9 in the highest quartile are 58% more likely to contract prostate cancer than those in the 10 lowest.26 11 66. A 600-person study found an 86 percent greater risk of colorectal cancer in 12 the highest trans fat consumption quartile.27 13 67. A 2,910-person study found “trans-monounsaturated fatty acids . . . were 14 dose-dependently associated with colorectal cancer risk,” which showed “the importance 15 of type of fat in the etiology and prevention of colorectal cancer.”28 16 17

18 24 Véronique Chajès et al., Association between Serum Trans-Monounsaturated Fatty 19 Acids and Breast Cancer Risk in the E3N-EPIC Study. 167 Am. J. of Epidemiology 1312, 20 1316 (2008). 21 25 Jorge Chavarro et al., A Prospective Study of Blood Trans Fatty Acid Levels and Risk 22 of Prostate Cancer., 47 Proc. Am. Assoc. of Cancer Research 95, 99 (2006). 23 26 Xin Liu et al., Trans-Fatty Acid Intake and Increased Risk of Advanced Prostate Cancer: Modification by RNASEL R462Q Variant, 28 Carcinogenesis 1232, 1232 (2007). 24 27 25 L.C. Vinikoor et al., Consumption of Trans-Fatty Acid and its Association with Colorectal Adenomas, 168 Am. J. of Epidemiology 289, 294 (2008). 26 28 Evropi Theodoratou et al., Dietary Fatty Acids and Colorectal Cancer: A Case-Control 27 Study, 166 Am. J. of Epidemiology 181 (2007). 28 16 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 18 of 65 Page ID #:150

1 iv. Alzheimer’s Disease and Cognitive Decline 2 68. Trans fat causes Alzheimer’s Disease and cognitive decline. 3 69. In a study examining 815 Chicago area seniors, researchers found “increased 4 risk of incident Alzheimer disease among persons with high intakes of… trans- 5 unsaturated fats.”29 6 70. The study “observed a strong increased risk of Alzheimer disease with 7 consumption of trans-unsaturated fat.30 8 71. In a study of 1,486 women with type 2 diabetes researchers found “[h]igher 9 intakes of… trans fat since midlife… were [] highly associated with worse cognitive 10 decline…”31 11 72. The study cautioned “[d]ietary fat intake can alter glucose and lipid 12 metabolism and is related to cardiovascular disease risk in individuals with type 2 13 diabetes. Because insulin, cholesterol, and vascular disease all appear to play important 14 roles in brain aging and cognitive impairments, dietary fat modification may be a 15 particularly effective strategy for preventing cognitive decline, especially in individuals 16 with diabetes.”32 (citations omitted) 17 v. There is No Safe Level of Artificial Trans Fat Consumption 18 73. There is no health benefit to artificial trans fat consumption and “no safe 19 20

21 22 29 Martha Clare Morris et al., Dietary Fats and the Risk of Incident Alzheimer Disease, 60 23 Arch. Neurol. 194, 198-199 (2003).

24 30 Id. 25 31 Elizabeth E. Devore et al., Dietary Fat Intake and Cognitive Decline in Women with 26 Type 2 Diabetes, 32 Diabetes Care 635 (2009).

27 32 Id. 28 17 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 19 of 65 Page ID #:151

1 level” of artificial trans fat intake. 33 2 74. According to the established consensus of the scientific community, 3 consumers should keep their consumption of trans fat “as low as possible.”34 4 75. Dariush Mozaffarian of Harvard Medical School writes in the New England 5 Journal of Medicine: 6 [T]rans fats from partially hydrogenated oils have no intrinsic health value 7 above their caloric value. Thus from a nutritional standpoint, the 8 consumption of trans fatty acids results in considerable potential harm but 9 no apparent benefit. . . . Thus, complete or near-complete avoidance of 10 industrially produced trans fat—a consumption of less than 0.5 percent of 11 the total energy intake—may be necessary to avoid adverse effects and 12 would be prudent to minimize health risks.35 13 76. The serious health conditions caused by trans fat consumption only occur 14 from consuming artificial trans fat, not the trace natural trans fat (vaccenic acid) found in 15 ruminant sources: 16 Of four prospective studies evaluating the relation between the intake of 17 trans fatty acids from ruminants and the risk of CHD, none identified a 18 significant positive association, whereas three identified nonsignificant 19 trends toward an inverse association. . . . [T]he sum of the current evidence 20 suggests that the public health implications of consuming trans fats from 21 22 23

24 33 Food & Nutrition Bd., Inst. of Med., Dietary Reference Intakes For Energy, 25 Carbohydrate, Fiber, Fat, Fatty Acids, Cholesterol, Protein, and Amino Acids (2005). 26 34 Id.

27 35 Mozaffarian, 354 New Eng. J. Med. at 1608-1609. 28 18 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 20 of 65 Page ID #:152

1 ruminant products are relatively limited.36 2 C. There is a Well-Established Scientific Consensus That Trans Fat is Extremely 3 Harmful 4 77. There is “no safe level” of trans fat intake.37 In addition, “trans fatty acids 5 are not essential and provide no known benefit to human health.” 75 Fed. Reg. at 76542. 6 Thus, while “the [Institute of Medicine] sets tolerable upper intake levels (UL) for the 7 highest level of daily nutrient intake that is likely to pose no risk of adverse health effects 8 to almost all individuals in the general population[,] . . . the IOM does not set a UL for 9 trans fatty acid because any incremental increase in trans fatty acid intake increases the 10 risk of CHD.” Id. (emphasis added). In addition, while “trans fats are naturally occurring 11 in some foods that contribute essential nutrients . . . [such that] consuming zero percent of 12 energy as trans fat would require substantial adjustments to the diet that may have 13 undesirable effects,” the FDA’s “[r]ecommendations are for Americans to limit trans fat 14 consumption as much as possible while consuming a nutritionally adequate diet.” Id. 15 (citations omitted). 16 78. Today there is no question about the scientific consensus on trans fat: 17 The scientific rationale for eliminating exposure to artificial trans fatty acids 18 in foods is rock solid. There is no evidence that they provide any health 19 benefit, and they are certainly harmful. These compounds adversely affect 20 both low- and high-density lipoprotein cholesterol levels and increase the 21 risk for coronary heart disease, even at relatively low levels of dietary 22 intake. Gram for gram, trans fats are far more potent than saturated fats in 23 increasing the risk for heart disease, perhaps because they also have pro- 24

25 36 Id. 26 37 Food & Nutrition Bd., Inst. of Med., Dietary Reference Intakes For Energy, 27 Carbohydrate, Fiber, Fat, Fatty Acids, Cholesterol, Protein, and Amino Acids (2005). 28 19 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 21 of 65 Page ID #:153

1 inflammatory properties and other adverse effects on vascular endothelium. 2 The strong evidence of harm motivated the Institute of Medicine to issue 3 recommendations that the intake of trans fats be minimized and prompted 4 the [FDA] to require the addition of information about trans fat content to 5 food labels beginning in 2006. Eliminating exposure to these dangerous fats 6 could have a powerful population impact—potentially protecting 30,000 to 7 100,000 Americans from death related to heart disease each year.38 8 79. Walter Willett, Professor of Medicine at Harvard Medical School, 9 concludes: 10 Given the adverse effects of trans fatty acids on serum lipid levels, systemic 11 inflammation, and possibly other risk factors for cardiovascular disease and 12 the positive associations with the risk of CHD, sudden death from cardiac 13 causes, and possibly diabetes, the potential for harm is clear. The evidence 14 and the magnitude of adverse health effects of trans fatty acids are in fact far 15 stronger on average than those of food contaminants or pesticide residues, 16 which have in some cases received considerable attention. Furthermore, 17 trans fats from partially hydrogenated oils have no intrinsic health value 18 above their caloric value. Thus, from a nutritional standpoint, the 19 consumption of trans fatty acids results in considerable potential harm but 20 no apparent benefit.39 21 22 23 24 38 Julie Louise Gerberding, MD, MPH, Safer Fats for Healthier Hearts: The Case for 25 Eliminating Dietary Artificial Trans Fat Intake, Ann. Intern. Med., 151:137-138 (2009) 26 39 Dariush Mozaffarian, M.D., M.P.H., Martijn B. Katan, Ph.D., Alberto Ascherio, M.D., Dr.P.H., Meir J. Stampfer, M.D., Dr.P.H., and Walter C. Willett, M.D., Dr.P.H., Trans 27 Fatty Acids and Cardiovascular Disease, N. Engl. J. Med. 354:1601-13 (2006). 28 20 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 22 of 65 Page ID #:154

1 D. Artificial Trans Fat Is So Inherently Dangerous It Has Been Banned by An 2 Increasing Number of American States and Governments Abroad. 3 80. In 2008, California became the first state to ban all restaurant food with 4 artificial trans fat, a law affecting approximately 88,000 eating establishments. Trans fats 5 now may not be served in California’s schools or restaurants, Cal. Educ. Code § 49431.7, 6 Cal. Health & Saf. Code § 114377. 7 81. New York City banned all trans fat in its 20,000 food establishments in 8 2006. Similar laws exist in Philadelphia; Baltimore; Stamford, Connecticut; and 9 Montgomery County, Maryland. 10 82. A 2004 Danish law restricted all foods to under 2 percent of calories from 11 trans fat. Switzerland made the same restriction in 2008.40 12 83. After conducting a surveillance study of Denmark’s trans fat ban, 13 researchers concluded the change “did not appreciably affect the quality, cost or 14 availability of food” and did not have “any noticeable effect for the consumers.”41 15 84. In 2006, a trans fat task force co-chaired by Health Canada and the Heart 16 and Stroke Foundation of Canada recommended capping trans fat content at 2 percent of 17 calories for tub margarines and spreads and 5 percent for all other foods. On September 18 30, 2009, British Columbia became the first province to impose these rules on all 19 restaurants, schools, hospitals, and special events.42 20 21 22 40 Andrew Collier, Deadly Fats: Why Are We still Eating Them?, The Independent (UK), 23 June 10, 2008. 24 41 Mozaffarian, 354 New Eng. J. Med. at 1610; see also Stender, Steen. High Levels of Industrially Produced Trans Fat in Popular Fast Food, 354 New Eng. J. Med. 1650, 1652 25 (2006). 26 42 Province Restricts Trans Fat in B.C., British Columbia Ministry of Healthy Living and Sport Press Release (2009), available at 27 http://www2.news.gov.bc.ca/news_releases_2005-2009/2009HLS0013-000315.htm. 28 21 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 23 of 65 Page ID #:155

1 V. SPECIFIC MISREPRESENTATIONS, MATERIAL 2 OMISSIONS, AND DECEPTIVE ACTS 3 A. Crisco Original & Butter Flavor Shortening 4 85. During the Class Period, Crisco was made with PHVO yet contained 5 deceptive health and wellness claims. Photos of the packaging of each product are 6 attached hereto as Exhibit A. 7 86. During the Class Period, Crisco Original Shortening and Crisco Butter 8 Flavor Shortening were identically formulated except for the addition of artificial butter 9 flavoring to Crisco Butter Flavor Shortening. 10 87. Similarly, during the Class Period, the packaging of Crisco Original 11 Shortening and Crisco Butter Flavor Shortening were identical except for their 12 background color (blue and yellow/gold, respectively) and name (e.g., the use of “Butter 13 Flavor” in the name of the latter product). 14 88. Both products were sold in both can and stick forms. 15 89. All varieties of Crisco contain artificial trans fat in the form of PHVO. 16 90. Deceptive and misleading comparison to butter: During the class period 17 from February 1, 2000 to the present the labels of Crisco Original and Crisco Butter 18 Flavor Shortening stated: “50% Less Saturated Fat Than Butter,” and “USE INSTEAD 19 OF BUTTER OR MARGARINE FOR BAKING.” 20 91. Crisco also contained a misleading “Saturated Fat Comparison” chart 21 comparing the saturated fat content of butter to Crisco. 22 92. These representations, individually and especially when taken together in the 23 context of the packaging as a whole, misleadingly imply that Crisco is a more healthful 24 alternative to butter because of its lower saturated fat content. But Crisco contains 25 dangerous levels of artificial trans fat, which is far more harmful to health than saturated 26 fat, whereas butter contains no artificial trans fat. 27 93. Although Crisco’s Nutrition Facts Box appears to be in compliance with 28 22 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 24 of 65 Page ID #:156

1 FDA regulations concerning the disclosure of trans fat in that context, see 21 C.F.R. § 2 101.9(c)(2)(ii), in comparing Crisco’s saturated fat content to butter elsewhere in its 3 advertising, for example in print and internet advertising, Smucker deceptively omits 4 Crisco’s artificial trans fat content. Moreover, notwithstanding its compliance with 5 Nutrition Facts Box labeling disclosures, in comparing Crisco’s saturated fat content to 6 butter, a duty arises in Smucker to inform and/or warn consumers that Crisco contains 7 trans fat, but Smucker has not satisfied this duty. 8 94. False and misleading “All-Vegetable” claim: During the entire class 9 period, the labels of Crisco Original and Crisco Butter Flavor Shortening contained the 10 representation that the product was “All-Vegetable.” Vegetables are natural. Crisco’s 11 label represents that the product is “All-Vegetable.” This representation is misleading 12 because, while the ingredients in Crisco did in fact originate as oil derived from highly 13 processed palm and soybean, the process of hydrogenation as described above renders 14 them artificial non-vegetable products, including a large amount of artificial trans fat, 15 which is a chemical that does not exist in vegetables. 16 B. Uncrustables Sandwiches 17 95. During the Class Period, Smucker’s Uncrustables frozen sandwiches were 18 made with PHVO yet contained deceptive health and wellness claims, included on at 19 least the following varieties: (a) Peanut Butter & Grape Jelly on White Bread; (b) Peanut 20 Butter & Grape Jelly on White Whole Wheat Bread; (c) Peanut Butter & Grape Jelly on 21 Whole Wheat Bread; (d) Peanut Butter & Strawberry Jam on White Bread; (e) Peanut 22 Butter & Strawberry Jam on White Whole Wheat Bread; (f) Peanut Butter & Strawberry 23 Jam on Whole Wheat Bread; (g) Peanut Butter & Honey Spread on Wheat Bread; (h) 24 Peanut Butter Sandwich on White Bread; and (i) Grilled Cheese Sandwich on White 25 Bread (collectively referred to herein as “Uncrustables”). 26 96. Each variety was sold in various sizes, for example, 4-pack, 8-pack, and 10- 27 pack. Exemplars of the packaging for each product are attached hereto as Exhibit B. 28 23 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 25 of 65 Page ID #:157

1 97. Misleading “Wholesome” and “Goodness” claims: During the Class 2 Period and through at least April 2011, Smucker marketed Uncrustables with the taglines 3 of “Moms love ‘em because they’re wholesome” and Uncrustables “seal in the 4 homemade goodness of PB&J” or provide “golden goodness” (Grilled Cheese). 5 98. This language was part of an intentional campaign to deceptively market 6 Uncrustables as healthful and nutritionally comparable to homemade peanut butter and 7 jelly sandwiches. 8 99. Smucker’s conduct is especially egregious because a peanut butter and jelly 9 sandwich, an American child’s dietary staple, contains no trans fat and does not pose the 10 serious health consequences to children associated with Uncrustables. 11 100. Smucker claims its product has “the homemade goodness of PB&J.” 12 101. However, neither bread, nor peanut butter, nor jelly, contain artificial trans 13 fat, which renders Uncrustables dangerous for children’s health. 14 102. These claims are also misleading in light of Uncrustables’ high fructose corn 15 syrup (“HFCS”) content. 16 103. HFCS is a highly refined manufactured food additive linked to tooth decay, 17 childhood obesity, type-2 diabetes, and heart disease. 18 104. Far from “wholesome,” Smucker’s use of HFCS gives Uncrustables 19 Sandwiches a very high glycemic index value, meaning that almost immediately upon 20 consumption it is digested into glucose and released into the blood stream. 21 105. High levels of blood glucose are toxic to a number of organs, so the body 22 then releases the hormone insulin as a response to lower blood sugar. 23 106. When this process is repeated over time, cells that normally react to insulin 24 and absorb excess blood sugar become sensitized and partially resistant to insulin. 25 107. This partial insulin resistance is variously referred to as metabolic syndrome, 26 insulin resistance syndrome, and pre-diabetes. Type-2 diabetes eventually results. 27 108. More immediately, the HFCS content leads children who consume 28 24 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 26 of 65 Page ID #:158

1 Uncrustables Sandwiches to experience a sugar “high,” during which they will tend to be 2 hyperactive and a subsequent “crash” or “low,” during which they will be tired, moody, 3 irritable, and even depressed. 4 109. Misleading “Whole Wheat” and “Whole Grain” claims: Varieties of 5 Uncrustables on Whole Wheat bread also contain packaging representations of “Whole 6 Wheat” and “Whole Grain”. More specifically, Smucker advertises “Whole Grain, 16g or 7 more per package,” as part of a “stamp” or “seal” from the Whole Grains Council 8 (WGC), a purported “nonprofit consumer advocacy group,” comprised of hundreds of 9 food manufacturers like Cargill, ConAgra, Domino’s Pizza, Frito-Lay, General Mills, 10 Heinz, Hostess, Kellogg, Kraft, McDonald’s, Nestle, Quaker, and Smucker.43 11 110. These representations, both individually as well as together in the context of 12 the packaging as a whole, give a misleading impression that Uncrustables are healthy 13 111. Although Uncrustables’ Nutrition Facts Box and Ingredient List appear to be 14 in compliance with FDA regulations concerning the disclosure of trans fat in that context, 15 see 21 C.F.R. §§ 101.4(a), 101.9(c)(2)(ii), in suggesting that Uncrustables are healthy 16 elsewhere in its advertising, for example in print and internet advertising, Smucker 17 deceptively omits Uncrustables’ PHVO and HFCS content. Moreover, notwithstanding 18 its compliance with Nutrition Facts Box and Ingredient List labeling disclosures, in 19 suggesting Uncrustables are healthy, a duty arises in Smucker to inform and/or warn 20 consumers that Crisco contains trans fat, but Smucker has not satisfied this duty. 21 112. Smucker’s conduct was especially egregious, insidious and immoral because 22 it marketed Uncrustables to children and primarily for children’s consumption. 23 VI. RELIANCE AND INJURY 24 113. When purchasing the Products, Plaintiffs were seeking for themselves and 25 their families, products of particular qualities, including products that did not negatively 26

27 43 See http://www.wholegrainscouncil.org/about-us. 28 25 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 27 of 65 Page ID #:159

1 affect blood cholesterol levels or the health of their cardiovascular system, and products 2 made with natural, healthy ingredients. 3 114. Plaintiffs read and relied on, for their Smucker PHVO Product purchases, 4 the products’ respective packaging and the health and wellness message it conveyed, 5 which was a substantial factor in each of their purchases. 6 115. Specifically, for their Crisco purchases, Plaintiffs relied on statements that 7 Crisco is “All-Vegetable,” contains “50% Less Saturated Fat Than Butter,” a graphic bar 8 chart comparing Crisco’s saturated fat content to butter, and Smucker’s instruction to 9 “USE INSTEAD OF BUTTER OR MARGARINE FOR BAKING.” 10 116. For their Uncrustables purchases, Plaintiffs relied on statements that 11 Uncrustables are “wholesome” and made with “homemade goodness.” 12 117. Plaintiffs were further injured by Smucker’s omission of information that 13 would have been important to their purchasing decision. Specifically, in light of Crisco’s 14 message that it is healthier than butter because of its lower saturated fat content, Smucker 15 deceptively omitted both the fact of the presence of artificial trans fat in Crisco and its far 16 more pernicious effect on health, which is important to a reasonable consumer. Smucker 17 had a duty to disclose this information because, inter alia, it had exclusive knowledge of 18 material facts not known to Plaintiffs, actively concealed material facts from Plaintiffs, 19 made partial representations but also suppressed some material facts from Plaintiffs, and 20 made affirmative misrepresentations to Plaintiffs. 21 118. Similarly, for Uncrustables, in light of Smucker’s message that it is a 22 “wholesome” product for children, made with “homemade goodness,” Smucker 23 deceptively omitted the presence of artificial trans fat and HFCS, and their effect on 24 human health, especially that of the young, developing children that Smucker targets. 25 119. Plaintiffs purchased the Products believing they had the qualities they sought 26 based on the products’ deceptive labeling, but the products were actually unsatisfactory 27 to them for the reasons described herein. 28 26 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 28 of 65 Page ID #:160

1 120. The Products cost more than similar products without misleading labeling, 2 and would have cost less, for example demanded less in the marketplace, absent 3 Smucker’s false and misleading statements and material omissions. Thus, the Products 4 were worth less than what Plaintiffs paid for them. 5 121. Plaintiffs, on one or more occasions, would not have purchased the Products 6 absent Smucker’s misrepresentations. 7 122. Plaintiffs purchased the Products instead of competing products based on the 8 false statements and misrepresentations described herein. 9 123. Plaintiffs lost money as a result of Smucker’s unlawful behavior. Plaintiffs 10 altered their position to their detriment and suffered loss in an amount equal to the 11 amount they paid for the Products. 12 VII. DELAYED DISCOVERY 13 124. Plaintiffs Alice Vinson and Lucina Caldera did not discover that Smucker’s 14 labeling of the Products was false, deceptive or misleading until late May 2012, when 15 Plaintiffs learned that foods high in trans fat—such as the Products—are harmful to 16 human health because of their role in causing coronary heart disease, type-2 diabetes, and 17 cancer. Until this time, they lacked knowledge regarding the facts of their claims against 18 Smucker. 19 125. Plaintiffs are reasonably diligent consumers who exercised reasonable 20 diligence in their purchasing, use, and consumption of the Products. Nevertheless, they 21 would not have been able to discover Smucker’s deceptive practices and lacked the means 22 to discover them given that, like nearly all consumers, they are not experts on nutrition 23 and do not typically read or have access to scholarly journals such as The Journal of 24 Nutrition,44 The European Journal of Clinical Nutrition,45 and The New England Journal 25 26 44 Peter M. Clifton et al., Trans Fatty Acids In Adipose Tissue And The Food Supply Are 27 Associated With Myocardial Infarction. 134 J. of Nutrition 874, 874-79 (2004). 28 27 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 29 of 65 Page ID #:161

1 of Medicine,46 where the scientific evidence of artificial trans fat’s dangers has been 2 published. Furthermore, Smucker’s labeling practices—in particular, representing Crisco 3 as “50% Less Saturated Fat Than Butter” and that purchasers should “Use Instead of 4 Butter or Margarine For Baking”—actively impeded Plaintiffs’ and the Classes’ abilities 5 to discover the dangerous effects of the Products throughout the Class Period. 6 VIII. CLASS ACTION ALLEGATIONS 7 126. Plaintiffs bring this action on behalf of themselves and all others similarly 8 situated on behalf of the following Classes, all of which exclude officers, directors, and 9 employees of Smucker, and the Court, its officers and their families, as well as those who 10 purchased the Products for commercial sale or distribution, rather than household or 11 personal use: 12 A. The Nationwide Class 13 a. The Nationwide Class arises under Ohio Law as alleged herein and 14 has both Ms. Vinson and Ms. Caldera as its Class Representatives, 15 who seek on behalf of the Nationwide Class remedies available under 16 Ohio law, including but not limited to actual and punitive damages, 17 restitution, attorneys’ fees and costs, and injunctive relief. It is 18 comprised of the following two subclasses: 19 The Nationwide Crisco Subclass - All persons who purchased in the 20 United States, on or after February 1, 2000, for personal or household use 21 and not for resale, Crisco Original Shortening or Crisco Butter Flavor

22 23 45 A. Tavani et al. Margarine intake and risk of nonfatal acute myocardial infarction in 24 Italian women. Eur. J. Clin. Nutr. 51: 30–32 (1997) (estimating a 50 percent greater risk 25 of heart attack in women with high consumption of margarine, an association “independent of body mass index, history of hypertension and hyperlipidemia.”) 26 46 “10 to 19 percent of CHD events in the United States could be averted by reducing the 27 intake of trans fat.” 354 New Eng. J. Med. at 1611. 28 28 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 30 of 65 Page ID #:162

1 Shortening. 2 The Nationwide Uncrustables Subclass - All persons who purchased 3 in the United States, between February 1, 2000 and April 30, 2011, for 4 personal or household use and not for resale, Uncrustables Sandwiches. 5 B. The California Class 6 b. The California Class arises under California law alleged herein and 7 has Ms. Caldera as its Class Representative, who seeks on behalf of 8 the California Class remedies available under California law, 9 including but not limited to actual and punitive damages, restitution, 10 attorneys’ fees and costs, and injunctive relief. It is comprised of the 11 following two subclasses: 12 The California Crisco Subclass - All persons who purchased in 13 California, on or after February 1, 2000, for personal or household use and 14 not for resale, Crisco Original Shortening or Crisco Butter Flavor 15 Shortening. 16 The California Uncrustables Subclass - All persons who purchased in 17 California, between February 1, 2000 and April 30, 2011, for personal or 18 household use and not for resale, Uncrustables Sandwiches. 19 C. The Ohio Class 20 c. The Ohio Class arises under Ohio law alleged herein and has Ms. 21 Vinson as its Class Representative, who seeks on behalf of the Ohio 22 Class remedies available under Ohio law, including but not limited to 23 actual and punitive damages, restitution, attorneys’ fees and costs, and 24 injunctive relief. It is comprised of the following two subclasses: 25 The Ohio Crisco Subclass - All persons who purchased in Ohio, on or 26 after February 1, 2000, for personal or household use and not for resale, 27 Crisco Original Shortening or Crisco Butter Flavor Shortening. 28 29 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 31 of 65 Page ID #:163

1 The Ohio Uncrustables Subclass - All persons who purchased in Ohio, 2 between February 1, 2000 and April 30, 2011, for personal or household use 3 and not for resale, Uncrustables Sandwiches. 4 127. Questions of law and fact common to Plaintiffs and the Classes include: 5 a. Whether Smucker communicated a health and wellness message 6 through Crisco packaging; 7 b. Whether that message was material, or likely to be material, to a 8 reasonable consumer; 9 c. Whether that message was false, at variance with the truth, misleading, 10 likely to deceive, and/or had the capacity or tendency to deceive the 11 public and/or a reasonable consumer; 12 d. Whether Smucker had a duty to disclose information to the class 13 concerning the presence of trans fat in Crisco and its effect on 14 consumers’ health; 15 e. Whether Smucker fraudulently omitted material information that it had 16 a duty to disclose in advertising Crisco as healthy; 17 f. Whether each subclass is entitled to actual damages, restitution, 18 punitive damages, attorneys’ fees and costs, injunctive, and any other 19 relief; 20 g. Whether Smucker communicated a health and wellness message 21 through Uncrustables packaging; 22 h. Whether that message was material, or likely to be material, to a 23 reasonable consumer; 24 i. Whether that message was false, at variance with the truth, misleading, 25 likely to deceive, and/or had the capacity or tendency to deceive the 26 public and/or a reasonable consumer; 27 j. Whether Smucker had a duty to disclose information to the class 28 30 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 32 of 65 Page ID #:164

1 concerning the presence of trans fat in Uncrustables and its effect on 2 consumers’ health; 3 k. Whether Smucker fraudulently omitted material information that it had 4 a duty to disclose in advertising Uncrustables as healthy; 5 l. For the Nationwide, Ohio, and/or California Uncrustables Subclass, 6 whether the class is entitled to actual damages, restitution, punitive 7 damages, attorneys’ fees and costs, injunctive, and/or any other relief; 8 m. Whether Smucker’s conduct was immoral, unethical, unscrupulous or 9 offensive of public policy because Smucker advertised Uncrustables to 10 children and targeted children as Uncrustables’ primary consumer 11 despite knowing of the particular dangers to children from 12 Uncrustables’ artificial trans fat content, or for any other reasons; 13 n. Whether the gravity of harm to consumers from Smucker’s conduct 14 outweighs its utility, if any; 15 o. Whether the injury caused to consumers by Smucker’s practices is 16 substantial, not outweighed by any countervailing benefits to consumers 17 or competition, and not one consumers themselves could reasonably 18 have avoided; 19 p. Whether Smucker’s conduct constitutes violations of the California 20 UCL and FAL; 21 q. Whether Smucker’s conduct constitutes violations of the California 22 CLRA; 23 r. Whether Smucker’s conduct constitutes violations of the Ohio CSPA; 24 s. Whether Smucker’s conduct constitutes violations of the Ohio DSPA; 25 t. Whether Smucker’s advertising created express or implied warranties 26 under California or Ohio law; 27 u. Whether Smucker’s conduct constitutes a breach of an express warranty 28 31 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 33 of 65 Page ID #:165

1 under California or Ohio law; 2 v. Whether Smucker’s conduct constitutes a breach of an implied warranty 3 under California or Ohio law; 4 w. Whether Smucker acted willfully, recklessly, negligently, or with gross 5 negligence in the violations of law alleged herein; and 6 x. Whether any applicable statute of limitations should be tolled on behalf 7 of one or more of the Classes or Subclasses. 8 128. By purchasing and/or using the Products, all Class members were subjected 9 to the same wrongful conduct. 10 129. Absent Smucker’s material deceptions, misstatements, and omissions, 11 Plaintiffs and other Class members would not have purchased the Products. 12 130. Plaintiffs’ claims are typical of the Classes’ claims. Plaintiffs will fairly and 13 adequately protect the interests of the Classes, have no interests that are incompatible 14 with the interests of the Classes, and have retained counsel competent and experienced in 15 class litigation. 16 131. The Classes are sufficiently numerous, as they each include hundreds of 17 thousands of individuals who purchased the Products throughout the United States. 18 132. Class representation is superior to other options for the resolution of the 19 controversy. The relief sought for each Class member is small. Absent the availability of 20 class action procedures, it would be infeasible for Class members to redress the wrongs 21 done to them. 22 133. Smucker has acted on grounds applicable to the Classes, thereby making 23 appropriate final injunctive relief or declaratory relief concerning the Classes as a whole. 24 134. Questions of law and fact common to the Classes predominate over any 25 questions affecting only individual members. 26 135. Class treatment is appropriate under FRCP 23(a) and both FRCP 23(b)(2) 27 and 23(b)(3). Plaintiffs do not contemplate class notice if the class is certified under 28 32 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 34 of 65 Page ID #:166

1 FRCP 23(b)(2), which does not require notice, and notice via publication and direct 2 communications with class members known to Smucker if the class is certified under 3 FRCP 23(b)(3), or if the Court determines class notice is required notwithstanding that 4 notice is not required under FRCP 23(b)(2). Plaintiffs will, if notice is required, confer 5 with Defendant and seek to present the Court with a stipulation and proposed order on the 6 details of a class notice plan. 7 IX. FIRST CAUSE OF ACTION 8 Ohio Consumers Sales Practice Act, O.R.C. §1345.02 9 (On behalf of the Nationwide and Ohio Classes) 10 136. Plaintiffs reallege and incorporate the allegations elsewhere in the Complaint 11 as if set forth in full herein. 12 137. Plaintiffs’ first cause of action is for damages and all other appropriate legal, 13 injunctive and equitable relief based on an unfair or deceptive consumer sales practice on 14 behalf of the Nationwide and Ohio Classes defined above. 15 138. Plaintiffs are consumers as defined by Ohio Revised Code § 1345.01(D). 16 139. Smucker is a supplier as defined by O.R.C. §1345.01(C). 17 140. Smucker’s conduct described herein involves consumer transactions as 18 defined in Ohio Revised Code §1345.01(A). 19 141. O.R.C. §1345.02 prohibits any “unfair or deceptive act[s] or practice[s] in 20 connection with a consumer transaction.” 21 142. Smucker violated and continues to violate the CSPA by engaging in the 22 following practices proscribed by O.R.C. §1345.02 in consumer transactions with the 23 Plaintiffs and the Classes, which were intended to result in, and did result in, the sale of 24 the Products: 25 a. § 1345.02(A): Committing an unfair or deceptive act or practice in 26 connection with the sale of the Products; 27 28 33 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 35 of 65 Page ID #:167

1 b. § 1345.02(B)(1): Representing that the Products have performance 2 characteristics, uses, or benefits that they do not have; 3 c. § 1345.02(B)(2): Representing that the Products are of a particular 4 standard, quality, or grade when they are not; and 5 d. § 1345.02(B)(5): Representing that the Products are being supplied in 6 accordance with a previous representation when they are not. 7 143. Pursuant to O.R.C. § 1345.09(B), Smucker received prior notice that its 8 conduct was deceptive or unconscionable before some or all of Plaintiffs’ last purchases 9 of the Products, through both one or more specific rules promulgated by the Ohio 10 Attorney General pursuant to O.R.C. § 3405(B)(2), and through one or more “judgments . 11 . . by courts of this state . . . determining that specific acts or practices violate section 12 1345.02 or 13.4503 of the Revised Code,” ORC § 1345.05(A)(3), as evidenced through 13 one or more decisions maintained by the Ohio Attorney General in its Public Inspection 14 File, including PIF No. 10002917 (State ex rel Cordray v. The Dannon Company, Inc., 15 No. 10 CVH-12-18225 (Dec. 22, 2010)). 16 144. Pursuant to O.R.C. §1345.09(D), Plaintiffs and the Classes seek an order 17 enjoining the above-described wrongful acts and practices of the Defendant and for 18 restitution and disgorgement. 19 145. Pursuant to Section 1345.09(E), the prior Complaint was served, and this 20 Complaint will be served upon the Ohio Attorney General. 21 146. Plaintiffs and the Classes reserve the right to allege further violations of 22 Ohio’s CSPA as Smucker’s conduct is ongoing. 23 X. SECOND CAUSE OF ACTION 24 Ohio Consumers Sales Practice Act, O.R.C. §1345.03 25 (On behalf of the Nationwide and Ohio Classes) 26 147. Plaintiffs reallege and incorporate the allegations elsewhere in the Complaint 27 as if set forth in full herein. 28 34 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 36 of 65 Page ID #:168

1 148. Plaintiffs’ second cause of action is for an unconscionable consumer sales 2 practice on behalf of the Nationwide and Ohio Classes defined above. 3 149. Plaintiffs are consumers as defined by O.R.C. § 1345.01(D). 4 150. Smucker is a supplier as defined by O.R.C. §1345.01(C). 5 151. Smucker’s conduct described herein involves consumer transactions as 6 defined in O.R.C. §1345.01(A). 7 152. O.R.C. §1345.03 prohibits any “unconscionable act[s] or practice[s] in 8 connection with a consumer transaction.” 9 153. Smucker violated and continues to violate the CSPA by engaging in the 10 following practices proscribed by O.R.C. §1345.03 in consumer transactions with the 11 Plaintiffs and the Classes, which were intended to result in, and did result in, the sale of 12 the Products: 13 a. § 1345.03(A): Engaging in an unconscionable act or practice in 14 connection with the sale of the Products; 15 b. § 1345.03(B)(3): Knowing, at the time of the sale of the Products, of 16 the inability of Plaintiffs and the Classes to receive a substantial benefit from the 17 Products; and 18 c. § 1345.03(B)(6): Knowingly making a misleading statement of 19 opinion on which Plaintiffs and the Classes were likely to rely to their detriment. 20 154. Pursuant to O.R.C. §1345.09(D), Plaintiffs and the Classes seek an order 21 enjoining the above-described wrongful acts and practices of the Defendant and for 22 restitution and disgorgement. 23 155. Pursuant to Section 1345.09(E), the prior Complaint was served, and this 24 Complaint will be served upon the Ohio Attorney General. 25 156. Plaintiffs and the Classes reserve the right to allege further violations of

26 Ohio’s CSPA as Smucker’s conduct is ongoing. 27 28 35 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 37 of 65 Page ID #:169

1 XI. THIRD CAUSE OF ACTION 2 Ohio Deceptive Trade Practices Act, O.R.C. §4165.02 3 (On behalf of the Nationwide and Ohio Classes) 4 157. Plaintiffs reallege and incorporate the allegations elsewhere in the Complaint 5 as if set forth in full herein. 6 158. Smucker is a person as defined in O.R.C. §4165.01(D). 7 159. As described above, Smucker has engaged in unfair, deceptive, untrue and 8 misleading advertising in violation of Ohio’s Deceptive Trade Practices Act, O.R.C. 9 §4165.02. Smucker’s policies, acts and practices violated and continue to violate the 10 following sections of the DTPA: 11 a. §4165(A)(2): Using deceptive representations in connection with 12 goods; 13 b. §4165(A)(7): Representing that goods have sponsorship, approval, 14 characteristics, ingredients, uses, benefits that they do not have; 15 c. §4165(A)(9): Representing that goods are of a particular standard, 16 quality, or grade when they are of another; and 17 d. §4165(A)(11): Advertising goods with intent not to sell them as 18 advertised. 19 160. Plaintiffs and the Classes reserve the right to allege other violations of the 20 law under Ohio’s Deceptive Trade Practices Act as Smucker’s conduct is ongoing. 21 161. Smucker’s conduct caused and continues to cause substantial injury to 22 Plaintiffs and the other Class Members. Plaintiffs have suffered injury in fact and have 23 lost money as a result of Smucker’s deceptive conduct. 24 162. Plaintiffs and the Classes seek equitable relief and to enjoin Smucker on the 25 terms that the Court considers reasonable. 26 27 28 36 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 38 of 65 Page ID #:170

1 XII. FOURTH CAUSE OF ACTION 2 California Unfair Competition Law, Unlawful Prong 3 Bus. & Prof. Code §§ 17200 et seq. 4 (On behalf of the California Class) 5 163. Plaintiff Caldera realleges and incorporates the allegations elsewhere in the 6 Complaint as if set forth in full herein. 7 164. Smucker has made and distributed, in interstate commerce and in this 8 District, products that make false or misleading statements of fact regarding their content. 9 The Products were placed into interstate commerce by Smucker and sold throughout the 10 country and this District. 11 165. Bus. & Prof. Code § 17200 prohibits any “unlawful, unfair or fraudulent 12 business act or practice.” 13 166. The acts, omissions, misrepresentations, practices, and non-disclosures of 14 Smucker as alleged herein constitute “unlawful” business acts and practices in that 15 Smucker’s conduct violates the California False Advertising Law, the California 16 Consumer Legal Remedies Act, the Ohio Consumer Sales Practice Act and the Ohio 17 Deceptive Trade Practices Act, as alleged herein. 18 167. Smucker’s conduct is further “unlawful” because it violates § 43(a) the 19 Lanham Act, 15 U.S.C. § 1125(a), in that Smucker’s advertising constitutes false 20 statements of fact in interstate commerce about its own and other products, which were 21 material in that they were likely to influence consumers’ purchasing decisions, and which 22 had a tendency to deceive, or actually deceived a substantial segment of Smucker’s 23 audience, resulting in injury. 24 168. Smucker’s conduct is further “unlawful” because it violates the Federal 25 Food, Drug and Cosmetic Act (“FFDCA”), specifically, (a) 21 U.S.C. § 343(a), which 26 deems food misbranded when the label contains a statement that is “false or misleading in 27 any particular,” and (b) 21 C.F.R. § 101.13(i)(3), which bars nutrient content claims 28 37 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 39 of 65 Page ID #:171

1 voluntarily placed on the front of a product label that are “false or misleading in any 2 respect.” 3 169. Smucker further violates the FFDCA’s implementing regulation, 21 C.F.R. § 4 1.21, because it fails to reveal material facts, namely the dangers of PHVO described in 5 detail herein, “in light of other representations,” namely the specific statements described 6 herein as misleading. 7 170. Smucker’s conduct further violates The California Sherman Food, Drug, and 8 Cosmetic Law (“Sherman Law”), Cal. Health & Safety Code § 110660, which deems 9 food products “misbranded” if their labeling is “false or misleading in any particular,” 10 and Health & Safety Code § 110670, which bars nutrient content claims voluntarily 11 placed on the front of a product label that fail to comply with the federal regulation for 12 nutrient content claims (i.e., “may not be false or misleading in any respect”). Smucker’s 13 conduct also violates the following sections of the Sherman Law: 14 • § 110100 (adopting all FDA regulations as state regulations); 15 • § 110290 (“In determining whether the labeling or advertisement of a food . . . is 16 misleading, all representations made or suggested by statement, word, design, 17 device, sound, or any combination of these shall be taken into account. The extent 18 that the labeling or advertising fails to reveal facts concerning the food . . . or 19 consequences of customary use of the food . . . shall also be considered.”); 20 • § 110390 (“It is unlawful for any person to disseminate any false advertisement of 21 any food . . . . An advertisement is false if it is false or misleading in any 22 particular.”); 23 • § 110395 (“It is unlawful for any person to manufacture, sell, deliver, hold, or 24 offer for sale any food . . . that is falsely advertised.”); 25 • § 110398 (“It is unlawful for any person to advertise any food, drug, device, or 26 cosmetic that is adulterated or misbranded.”); 27 • § 110400 (“It is unlawful for any person to receive in commerce any food . . . that 28 38 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 40 of 65 Page ID #:172

1 is falsely advertised or to deliver or proffer for delivery any such food . . . .”); 2 • § 110670 (“Any food is misbranded if its labeling does not conform with the 3 requirements for nutrient content or health claims as set forth in Section 403(r) (21 4 U.S.C. Sec. 343(r)) of the federal act and the regulations adopted pursuant 5 thereto.”); 6 • § 110680 (“Any food is misbranded if its labeling or packaging does not conform 7 to the requirements of Chapter 4 (commencing with Section 110290).”); 8 • § 110705 (“Any food is misbranded if any word, statement, or other information 9 required pursuant to this part to appear on the label or labeling is not prominently 10 placed upon the label or labeling and in terms as to render it likely to be read and 11 understood by the ordinary individual under customary conditions of purchase and 12 use.”); 13 • § 110760 (“It is unlawful for any person to manufacture, sell, deliver, hold, or 14 offer for sale any food that is misbranded.”); 15 • § 110765 (“It is unlawful for any person to misbrand any food.”); and 16 • § 110770 (“It is unlawful for any person to receive in commerce any food that is 17 misbranded or to deliver or proffer for delivery any such food.”). 18 171. Smucker’s conduct may violate additional provisions of the Sherman Law. 19 172. All of the challenged labeling statements made by Smucker thus constitute 20 violations of the FFDCA and the Sherman Law and, as such, violated the “unlawful” 21 prong of the UCL. 22 173. Smucker leveraged its deception to induce Plaintiff and members of the 23 California Class to purchase products that were of lesser value and quality than 24 advertised. 25 174. Plaintiff Caldera suffered injury in fact and lost money or property as a 26 result of Smucker’s deceptive advertising: she was denied the benefit of the bargain when 27 28 39 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 41 of 65 Page ID #:173

1 she decided to purchase the Products over competitor products that are less expensive 2 and/or contain no artificial trans fat. 3 175. Had Plaintiff Caldera been aware of Smucker’s false and misleading 4 advertising tactics, she would not have purchased the Products, and had Smucker not 5 advertised them in a fraudulent manner, she would have paid less for them. 6 176. In accordance with Bus. & Prof Code § 17203, Plaintiff Caldera seeks an 7 order enjoining Smucker from continuing to conduct business through unlawful, unfair, 8 and/or fraudulent acts and practices and to commence a corrective advertising campaign. 9 177. Plaintiff Caldera also seeks an order for the restitution of all monies from the 10 sale of the Products which were acquired through acts of unlawful, unfair, and/or 11 fraudulent competition. 12 XIII. FIFTH CAUSE OF ACTION 13 California Unfair Competition Law, Fraudulent Prong 14 Bus. & Prof. Code §§ 17200 et seq., 15 (On behalf of the California Class) 16 178. Plaintiff Caldera realleges and incorporates the allegations elsewhere in the 17 Complaint as if set forth in full herein. 18 179. Bus. & Prof. Code § 17200 prohibits any “unlawful, unfair or fraudulent 19 business act or practice.” 20 180. Smucker leveraged its deception to induce Plaintiff Caldera and members of 21 the California Class to purchase products that were of lesser value and quality than 22 advertised. 23 181. Plaintiff Caldera suffered injury in fact and lost money or property as a 24 result of Smucker’s deceptive advertising: she was denied the benefit of the bargain when 25 she decided to purchase the Products over competitor products, which are less expensive 26 and/or contain no artificial trans fat. 27 28 40 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 42 of 65 Page ID #:174

1 182. Had Plaintiff Caldera been aware of Smucker’s false and misleading 2 advertising tactics, she would not have purchased the Products, and had Smucker not 3 advertised them in a fraudulent manner, she would have paid less for them. 4 183. The acts, omissions, misrepresentations, practices, and non-disclosures of 5 Smucker as alleged herein constitute “fraudulent” business acts and practices in that 6 Smucker’s conduct has a likelihood, capacity or tendency to deceive Plaintiff, the 7 Classes, and the general public. 8 184. In accordance with Bus. & Prof. Code § 17203, Plaintiff Caldera seeks an 9 order enjoining Smucker from continuing to conduct business through unlawful, unfair, 10 and/or fraudulent acts and practices, and to commence a corrective advertising campaign. 11 185. Plaintiff Caldera further seeks an order for the restitution of all monies from 12 the sale of the Products which were acquired through acts of unlawful, unfair, and/or 13 fraudulent competition. 14 XIV. SIXTH CAUSE OF ACTION 15 California Unfair Competition Law, Unfair Prong 16 Bus. & Prof. Code §§ 17200 et seq., 17 (On behalf of the California Class) 18 186. Plaintiff Caldera realleges and incorporates the allegations elsewhere in the 19 Complaint as if set forth in full herein. 20 187. Bus. & Prof. Code § 17200 prohibits any “unlawful, unfair or fraudulent 21 business act or practice.” 22 188. Smucker leveraged its deception to induce Plaintiff Caldera and members of 23 the California Class to purchase products that were of lesser value and quality than 24 advertised. 25 189. Plaintiff Caldera suffered injury in fact and lost money or property as a 26 result of Smucker’s deceptive advertising: she was denied the benefit of the bargain when 27 28 41 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 43 of 65 Page ID #:175

1 she decided to purchase the Products over competitor products, which are less expensive 2 and/or contain no artificial trans fat. 3 190. Had Plaintiff Caldera been aware of Smucker’s false and misleading 4 advertising tactics, she would not have purchased the Products, and had Smucker not 5 advertised them in a fraudulent manner, she would have paid less for them. 6 191. The acts, omissions, misrepresentations, practices, and non-disclosures of 7 Smucker as alleged herein constitute “unfair” business acts and practices because 8 Smucker’s conduct is: 9 a. immoral, unethical, unscrupulous, and offends public policy; 10 b. the gravity of Smucker’s conduct outweighs any conceivable benefit 11 of such conduct; and 12 c. the injury to consumers caused by Smucker’s conduct is substantial, 13 not outweighed by any countervailing benefits to consumers or 14 competition, and not one that consumers themselves could reasonably 15 have avoided. 16 192. In accordance with Bus. & Prof. Code § 17203, Plaintiff Caldera seeks an 17 order enjoining Smucker from continuing to conduct business through unlawful, unfair, 18 and/or fraudulent acts and practices, and to commence a corrective advertising campaign. 19 193. Plaintiff Caldera further seeks an order for the restitution of all monies from 20 the sale of the Products which were acquired through acts of unlawful, unfair, and/or 21 fraudulent competition. 22 XV. SEVENTH CAUSE OF ACTION 23 California False Advertising Law, Cal. Bus. & Prof. Code §§ 17500 et seq. 24 (On behalf of the California Class) 25 194. Plaintiff Caldera realleges and incorporate the allegations elsewhere in the 26 Complaint as if set forth in full herein. 27 28 42 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 44 of 65 Page ID #:176

1 195. In violation of Bus. & Prof. Code §§ 17500 et seq., the advertisements, 2 labeling, policies, acts, and practices described herein were designed to, and did, result in 3 the purchase and use of the Products without the knowledge that they contained toxic 4 artificial trans fat. 5 196. Smucker knew and/or reasonably should have known that the labels on the 6 Products were untrue and/or misleading. 7 197. As a result, Plaintiff Caldera, the Class, and the general public are entitled to 8 injunctive and equitable relief, restitution, and an order for the disgorgement of the funds 9 by which Smucker was unjustly enriched. 10 XVI. EIGHTH CAUSE OF ACTION 11 California Consumer Legal Remedies Act, Cal. Civ. Code §§ 1750 et seq. 12 (On behalf the California Class) 13 198. Plaintiff Caldera realleges and incorporates the allegations elsewhere in the 14 Complaint as if set forth in full herein. 15 199. The CLRA prohibits deceptive practices in connection with the conduct of a 16 business that provides goods, property, or services primarily for personal, family, or 17 household purposes. 18 200. Smucker’s policies, acts and practices were designed to, and did, result in 19 the purchase and use of the products primarily for personal, family, or household 20 purposes, and violated and continue to violate the following sections of the CLRA: 21 a. § 1770(a)(5): representing that goods have characteristics, uses, or 22 benefits which they do not have. 23 b. § 1770(a)(7): representing that goods are of a particular standard, 24 quality, or grade if they are of another. 25 c. § 1770(a)(9): advertising goods with intent not to sell them as 26 advertised. 27 28 43 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 45 of 65 Page ID #:177

1 d. § 1770(a)(16): representing the subject of a transaction has been 2 supplied in accordance with a previous representation when it has not. 3 201. As a result, Plaintiff Caldera and the Class have suffered irreparable harm 4 and are entitled to injunctive relief and restitution. 5 202. As a further result, Plaintiff Caldera and the Class have suffered damages, 6 and because the conduct was deliberate, immoral, oppressive, made with malice and/or 7 contrary to public policy, they are entitled to punitive or exemplary damages. 8 203. In compliance with Civ. Code § 1782, Plaintiff Lucina Caldera sent Smucker 9 written notice of her claims on May 25, 2012. 10 204. Smucker received Plaintiff Caldera’s written notice. 11 XVII. NINTH CAUSE OF ACTION 12 Breach of Express Warranty Under Ohio Law 13 (On behalf of the Nationwide and Ohio Classes) 14 205. Plaintiffs reallege and incorporate the allegations elsewhere in the Complaint 15 as if set forth in full herein. 16 206. During the class period, Defendant made written representations to the 17 public, including Plaintiffs, that Crisco is “All-Vegetable.” This promise and related 18 promises printed on the label became part of the basis of the bargain between the parties 19 and thus constituted an express warranty. 20 207. Thereon, Defendant sold the goods to Plaintiffs and other consumers who 21 bought the goods from Defendant. 22 208. However, Defendant breached this express warranty in that Crisco is not 23 “All-Vegetable,” because vegetables are naturally-occurring substances but Crisco 24 contains PHVO, an artificial substance manufactured using vegetables but containing 25 high amounts of the harmful form of trans fat, which is found nowhere in nature, much 26 less in vegetables or something that purports to be “All” (equivalent to “100%”) 27 vegetable. 28 44 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 46 of 65 Page ID #:178

1 209. During the class period, Defendant made written representations to the 2 public, including Plaintiffs, that Uncrustables Sandwiches are “wholesome.” This 3 promise and related promises printed on the label became part of the basis of the bargain 4 between the parties and thus constituted an express warranty. 5 210. Thereon, Defendant sold the goods to Plaintiffs and other consumers who 6 bought the goods from Defendant. 7 211. However, Defendant breached this express warranty in that Uncrustables 8 Sandwiches are not “wholesome” because they contain PHVO, a substance high in trans 9 fat, which is strongly linked to a plethora of human ailments, and because they contain 10 large amounts of HFCS. 11 212. As a result of this breach, Plaintiffs and other consumers in fact did not 12 receive goods as warranted by Defendant. 13 213. As a proximate result of this breach of warranty by Defendants, Plaintiffs 14 and other consumers have been damaged in an amount to be determined at trial. 15 214. Defendant received notice of the breach as required under Ohio law. 16 XVIII. TENTH CAUSE OF ACTION 17 Breach of Implied Warranty of Merchantability Under Ohio Law 18 (On behalf of the Nationwide and Ohio Classes) 19 215. Plaintiffs reallege and incorporate the allegations elsewhere in the Complaint 20 as if set forth in full herein. 21 216. During the class period, Defendant made written representations to the 22 public, including Plaintiffs, that Crisco is “All-Vegetable.” 23 217. However, Defendant breached this warranty implied in the contract for sale 24 of goods in that Crisco Original Shortening and Crisco Butter Shortening are not “All- 25 Vegetable” because they contain PHVO, an artificial substance manufactured using 26 vegetables but containing high amounts of the harmful form of trans fat that is not found 27 in vegetables. 28 45 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 47 of 65 Page ID #:179

1 218. During the class period, Defendant made written representations to the 2 public, including Plaintiffs, that Uncrustables Sandwiches are “wholesome.” 3 219. However, Defendant breached this express warranty in that Uncrustables 4 Sandwiches are not “wholesome” because they contain PHVO, a substance high in trans 5 fat, which is strongly linked to a plethora of human ailments, and because they contain 6 large amounts of HFCS. 7 220. During the class period, Defendant made written representations to the 8 public, including Plaintiffs, that Crisco is appropriate for use as a healthful alternative to 9 butter as concerns fat content. The combination of the statement that the products contain 10 less saturated fat, a diagram comparing the saturated fat contents, and a statement in bold 11 recommending that consumers “USE INSTEAD OF BUTTER OR MARGARINE,” 12 warrants that these products are to be used as a healthful alternative to butter as concerns 13 fat content. 14 221. However, Defendant breached this warranty implied in the contract for sale 15 of goods in that Crisco Original Shortening and Crisco Butter Shortening are not more 16 healthful alternatives to butter as concerns fat content because they contain high levels of 17 trans fats, a fact which far outweighs the reduction in saturated fat as concerns human 18 ailments. 19 222. Defendant was a merchant with respect to goods of this kind which were 20 sold to Plaintiffs and other consumers, and there was in the sale to Plaintiffs and other 21 consumers an implied warranty that those goods were merchantable. 22 223. As a result of Defendant’s conduct, Plaintiffs and other consumers did not 23 receive goods as impliedly warranted by Defendant to be merchantable. 24 224. As a proximate result of this breach of warranty by Defendants, Plaintiffs 25 and other consumers have been damaged in an amount to be determined at trial. 26 225. Defendant received notice of the breach as required under Ohio law. 27 28 46 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 48 of 65 Page ID #:180

1 XIX. ELEVENTH CAUSE OF ACTION 2 Breach of Express Warranty Under California Law 3 (On behalf of the California Class) 4 226. Plaintiff Caldera realleges and incorporates the allegations elsewhere in the 5 Complaint as if set forth in full herein. 6 227. During the class period, Defendant made written representations to the 7 public, including Plaintiff Caldera, that Crisco is “All-Vegetable.” This promise and 8 related promises printed on the label became part of the basis of the bargain between the 9 parties and thus constituted an express warranty. 10 228. Thereon, Defendant sold the goods to Plaintiffs Caldera and other consumers 11 who bought the goods from Defendant. 12 229. However, Defendant breached this express warranty in that Crisco is not 13 “All-Vegetable” because it contains PHVO, an artificial substance manufactured using 14 vegetables but containing high amounts of the harmful form of trans fat that is not found 15 in vegetables. 16 230. During the class period, Defendant made written representations to the 17 public, including Plaintiffs Caldera, that Uncrustables Sandwiches are “wholesome.” This 18 promise and related promises printed on the label became part of the basis of the bargain 19 between the parties and thus constituted an express warranty. 20 231. Thereon, Defendant sold the goods to Plaintiff Caldera and other consumers 21 who bought the goods from Defendant. 22 232. However, Defendant breached this express warranty in that Uncrustables 23 Sandwiches are not “wholesome” because they contain PHVO, a substance high in trans 24 fat, which is strongly linked to a plethora of human ailments, and because they contain 25 large amounts of HFCS. 26 233. As a result of this breach, Plaintiff Caldera and other consumers in fact did 27 not receive goods as warranted by Defendant. 28 47 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 49 of 65 Page ID #:181

1 234. As a proximate result of this breach of warranty by Defendants, Plaintiff 2 Caldera and other consumers have been damaged in an amount to be determined at trial. 3 XX. TWELFTH CAUSE OF ACTION 4 Breach of Implied Warranty of Merchantability Under California Law 5 (On behalf of the California Class) 6 235. Plaintiff Caldera realleges and incorporate the allegations elsewhere in the 7 Complaint as if set forth in full herein. 8 236. During the class period, Defendant made written representations to the 9 public, including Plaintiff Caldera, that Crisco Original Shortening and Crisco Butter 10 Shortening are “All-Vegetable.” 11 237. However, Defendant breached this warranty implied in the contract for sale 12 of goods in that Crisco Original Shortening and Crisco Butter Shortening are not “All- 13 Vegetable” because they contain PHVO, an artificial substance manufactured using 14 vegetables but containing high amounts of the harmful form of trans fat that is not found 15 in vegetables. 16 238. During the class period, Defendant made written representations to the 17 public, including Plaintiff Caldera, that Uncrustables Sandwiches are “wholesome.” 18 239. However, Defendant breached this express warranty in that Uncrustables 19 Sandwiches are not “wholesome” because they contain PHVO, a substance high in trans 20 fat, which is strongly linked to a plethora of human ailments, and because they contain 21 large amounts of HFCS. 22 240. During the class period, Defendant made written representations to the 23 public, including Plaintiff Caldera, that Crisco is appropriate to use as a healthful 24 alternative to butter as concerns fat content. The combination of the statement that the 25 products contain less saturated fat, a diagram comparing the saturated fat contents, and a 26 statement in bold recommending that consumers “USE INSTEAD OF BUTTER OR 27 28 48 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 50 of 65 Page ID #:182

1 MARGARINE,” warrants that these products are to be used as a healthful alternative to 2 butter as concerns fat content. 3 241. However, Defendant breached this warranty implied in the contract for sale 4 of goods in that Crisco is not a more healthful alternative to butter as concerns fat content 5 because it contains high levels of trans fats, a fact which far outweighs the reduction in 6 saturated fat as concerns human ailments. 7 242. Defendant was a merchant with respect to goods of this kind which were 8 sold to Plaintiff Caldera and other consumers, and there was in the sale to Plaintiff 9 Caldera and other consumers, an implied warranty that those goods were merchantable. 10 243. As a result of Defendant’s conduct, Plaintiff Caldera and other consumers 11 did not receive goods as impliedly warranted by Defendant to be merchantable. 12 244. As a proximate result of this breach of warranty by Defendants, Plaintiff 13 Caldera and other consumers have been damaged in an amount to be determined at trial. 14 XXI. PRAYER FOR RELIEF 15 WHEREFORE, Plaintiffs, on behalf of themselves, all others similarly situated, 16 and the general public, pray for judgment against Defendants as follows: 17 A. An order confirming that this class action is properly maintainable as a 18 nationwide class action as defined above and appointing Plaintiffs and their 19 undersigned counsel to represent the Nationwide Class; 20 B. An order confirming that this class action is properly maintainable as a 21 California class action as defined above and appointing Plaintiff Caldera and 22 her undersigned counsel to represent the California Class; 23 C. An order confirming that this class action is properly maintainable as an 24 Ohio class action as defined above and appointing Plaintiff Vinson and her 25 undersigned counsel to represent the Ohio Class; 26 D. An award for compensatory damages for Plaintiffs and members of the 27 Classes in excess of $25,000 and all monetary relief authorized by law or 28 49 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 51 of 65 Page ID #:183

1 referenced in the Complaint; 2 E. An order requiring Smucker to pay damages and/or restitution to Plaintiffs 3 and class members so that they may be restored any money which may have 4 been acquired by means of any unfair, deceptive, unconscionable, fraudulent 5 or negligent action; 6 F. An order requiring Smucker to disgorge any benefits received from 7 Plaintiffs and/or unjust enrichment realized as a result of its improper and 8 misleading advertising and marketing of the Products; 9 G. An award of punitive damages, in an amount to be proved at trial; 10 H. An order requiring Smucker to cease and desist its deceptive, 11 unconscionable and fraudulent practices; 12 I. An order requiring Smucker to engage in an corrective advertising campaign 13 and to recall and/or destroy all misleading advertising or packaging 14 materials; 15 J. An order compelling Smucker to instruct its retail and wholesale customers 16 to cease advertising the Products in any manner determined to be unlawful; 17 K. An award of prejudgment and post judgment interest; 18 L. An award of attorney’s fees and costs increased by an appropriate multiplier; 19 and 20 M. Such other and further relief as this Court may deem just, equitable or 21 proper. 22 XXII. JURY DEMAND 23 Plaintiffs demand a trial by jury on their claims for damages.

24 25 26 27 28 50 Vinson, et al. v. The J.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) FIRST AMENDED COMPLAINT Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 52 of 65 Page ID #:184

1 DATED: September 10, 2012 Respectfully Submitted,

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4 THE WESTON FIRM 5 GREGORY S. WESTON JACK FITZGERALD 6 MELANIE PERSINGER 7 COURTLAND CREEKMORE 1405 Morena Blvd., Suite 201 8 San Diego, CA 92110 9 THE LAW OFFICES OF 10 RONALD A. MARRON, APLC RONALD A. MARRON 11 SKYE RESENDES 12 3636 4th Avenue, Suite 202 San Diego, CA 92109 13 Counselfor Plaintiffs and the Proposed 14 Classes

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28 51 Vinson, et al. v. TheJ.M. Smucker Company, No. 2:12-cv-04936 GHK (VBKx) First Amended Complaint Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 53 of 65 Page ID #:185

EXHIBIT A Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 54 of 65 Page ID #:186 Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 55 of 65 Page ID #:187 Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 56 of 65 Page ID #:188 Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 57 of 65 Page ID #:189 Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 58 of 65 Page ID #:190 Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 59 of 65 Page ID #:191 Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 60 of 65 Page ID #:192 Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 61 of 65 Page ID #:193

EXHIBIT B Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 62 of 65 Page ID #:194 Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 63 of 65 Page ID #:195 Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 64 of 65 Page ID #:196 Case 2:12-cv-04936-GHK-VBK Document 23 Filed 09/19/12 Page 65 of 65 Page ID #:197