Kind Bar ‘All Natural’ Class Action Can Move Forward, NY Judge Says

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A New York judge determined that a Kind snack bar class action lawsuit can proceed in light of the U.S. Food and Drug Administration’s inaction regarding “natural” guidelines.

The multidistrict litigation had been in a two-year holding pattern, awaiting FDA guidance on how the term “natural” can be used to discuss food products.

Lead plaintiffs accused Kind LLC of deceptively marketing its products as “all natural,” contending that the food contains genetically modified organisms (GMOs).

The Kind snack bar class action lawsuit was put on hold after both the FDA and the U.S. Department of Agriculture (USDA) signaled that they intended to release new standards for the term in early 2018.

Kind successfully argued that the agencies should get to weigh in on how “natural” is used to describe food.

However, U.S. District Court Judge William H. Pauley III recently concluded that the proposed federal regulations have become mired in the policy process.

“On balance, this court concludes that the stay should be lifted,” stated the judge in his order. “Given that there is no reason to continue the stay on the ‘non­-GMO’ claims and that neither party wishes to litigate the claims in piecemeal fashion, it makes sense to begin discovery. It is time for this multi­district litigation to move forward.”

Indeed, the FDA announced that it would be making changes to the regulations regarding the use of “natural” in marketing in 2015. But there is reportedly no traction on that effort.

“As such,” noted Judge Pauley, “this court explained that it ‘cannot sit idly by on an illusory assurance that something is likely to happen.’”

The USDA released guidelines in December 2018 that established the National Bioengineered Food Disclosure Standard – garnering a lawsuit by an advocacy group in the process.

A number of class action lawsuits were lodged against Kind LLC alleging that the company marketed its products as “all natural” and “non-GMO,” despite allegedly containing ingredients derived from genetically-modified canola, corn and soy.

The claims were consolidated into multidistrict litigation and survived a motion to dismiss in 2016.

Kind requested to have the litigation put on hold pending new regulatory guidelines issued by the FDA and USDA in March 2018.

In August 2018, the plaintiffs argued that the Kind false advertising class action lawsuit should be put back on track after it became clear that the regulatory agencies were not going to move forward any time soon.

The plaintiffs pointed out that evidence was becoming stale and witnesses’ memories were fading as the gears of government ground away.

Judge Pauley’s recent order lifting the stay directs the parties to prepare for discovery, with a status conference scheduled for March.

The plaintiffs are represented by Todd S. Garber of Finkelstein Blankinship Frei-Pearson & Garber LLP.

The Kind “All Natural” Snack Bar Class Action Lawsuit is In re: Kind LLC “Healthy and All Natural” Litigation, Case No. 1:15-md-02645, in the U.S. District Court for the Southern District of New York.