California-based beverage protein company Lyons Magnus is the target of a putative class action lawsuit filed last week, alleging the company misled consumers by not disclosing that its drinks were contaminated with potentially deadly bacteria.
The suit comes on the heels of last month’s voluntary recall alert of 53 nutritional and beverage products, including Oatly Barista Edition and Stumptown Cold Brew Oat Milk, due to potential Cronobacter sakazakii contamination that occurred at the Lyons Magnus facility in Beloit, Wisconsin. The recall expanded on August 10 to include over 70 products.
In the suit, filed on August 11 in the Southern District of New York, attorneys for plaintiff Wayne Calatano claim Lyons Magnus used a “false, deceptive and misleading” marketing campaign during the recall that failed to list Cronobacter sakazakii on any of the 53 products’ ingredient lists. Catalano purchased and used affected products, including Premier Protein Vanilla in 330ml cartons at a Rite Aid store in Duchess, New York.
By not explicitly listing Cronobacter sakazakii in the product ingredient lists, the complaint asserts that Lyons Magnus implied the nutritional and beverage products were safe for consumption.
“The products’ packaging does not identify Cronobacter sakazakii. Indeed, Cronobacter sakazakii is not listed in the ingredients section, nor is there any warning about the inclusion (or even potential inclusion) of Cronobacter sakazakii in the products. This leads reasonable consumers to believe the products do not contain, and are not at risk of containing, Cronobacter sakazakii,” said the suit.
Cronobacter sakazakii is a “foodborne bacterium that grows best in dry foods” and ingestion of the bacteria can cause “death to infants, the elderly, and immunocompromised individuals,” the suit explained. According to the FDA, symptoms of illness caused by the bacteria include fever, vomiting and urinary tract infection.
The complaint argues that “had the defendant not made the false, misleading, and deceptive claims, the plaintiff would not have been willing to purchase the products […] the products plaintiff received were worthless because they contain the [known] harmful substance.”
In the July recall announcement, the FDA claimed that no illnesses linked to the potentially affected products had been reported. A preliminary investigation revealed that the products did not meet commercial sterility specifications.
Calatano has asked that Lyons Magnus be required to establish a blood testing program for himself and the class and a medical monitoring protocol to “monitor individuals’ health and diagnose at an early stage any ailments associated to exposure to Cronobacter sakazakii,” according to the suit. He is also seeking class certification, monetary and treble damages, statutory damages totaling $550 per transaction, punitive damages, attorney’s fees and further relief as the Court may deem just and proper. The class is defined as all consumers who purchased Lyons Magnus’ products at any time during the period within the applicable statute of limitations.