Plaintiffs Ask Judge to Keep KIND Snack Bar Class Action Alive

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Last week, the plaintiffs in a class action lawsuit over the alleged false marketing of KIND LLC’s snack bars urged a New York federal judge not to dismiss their case even though the U.S. Food and Drug Administration has indicated it will be working to create guidelines regarding the term “natural.”

The consolidated KIND class action lawsuit accuses the snack food manufacturer of marketing its snack bars as a healthy and natural choice, prominently labeling its products as “All Natural,” “Non GMO,” and/or “Healthy.” The plaintiffs allege that these representations are false because the snack bars contain unhealthy amounts of fat, synthetic ingredients and ingredients derived from genetically modified organisms.

The plaintiffs argue that the FDA has already issued a warning letter to KIND “explicitly stating that it violated Section 403 of the Federal Food, Drug and Cosmetic Act,” and that several of the company’s products are misbranded because they don’t meet the standards of nutrient content that would justify the “healthy” label.

“When boiled down to its essence, KIND’s argument is unbelievable,” the plaintiffs argue. “It does not even deny that it violated the law. Instead, KIND argues that its violation is so ‘technical’ and ‘complex’ that the Court should dismiss this lawsuit because consumers could not have been deceived by KIND’s admittedly deceptive conduct.”

“In attempt to evade liability, KIND contends that Plaintiffs’ non-warranty ‘Healthy’ claims are preempted by federal law,” the plaintiffs argue in their motion. However, “Federal regulations prohibit KIND from representing that its bars are ‘healthy’ given the amount of saturated fat they contain, and Plaintiffs’ claims mirror that regulation and the FDA’s conclusion that KIND’s labels are deceptive because the bars are not in fact ‘healthy’ under the federal regulation.”

The plaintiffs reject KIND’s argument that the case should be dismissed until the FDA provides guidance about the term “natural” because the agency has only recently asked for public comments and it may take many months or even years for the agency to issue guidance.

The FDA’s initiative to issue guidance about the term “natural” stems in part from requests by federal courts to clarify the meaning of the term. The agency began asking for comments about the issue in November.

In March, KIND filed a motion to dismiss the snack food labeling class action lawsuit, noting the FDA’s initiative to set guidelines regarding the use of the term “natural.” The plaintiffs urged the judge to keep the case alive because there was no guarantee that the agency would issue clear guidelines anytime soon.

“This court should not delay adjudicating any aspect of this case in the vague and desperate hope that the FDA may one day in the future provide guidance,” they argue. “It is speculative at best that the FDA ever will decide to issue regulations.”

The plaintiffs are represented by Theodore Walter Maya of  Ahdoot & Wolfson PC, Todd Seth Garber and Greg Blankinship of  Finkelstein Blankinship Frei-Pearson & Garber LLP, K.E. Richman of Richman Law Group LLP and Daniel Warshaw of Pearson Simon Warshaw & Penny LLP.

The “Natural” KIND 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.

UPDATE: On March 2, 2018, the makers of KIND snack bars will continue to face claims challenging their “non-GMO” and “natural” labeling, but the litigation is paused while federal agencies get a chance to issue relevant guidance.

UPDATE 2: On Aug. 15, 2018, plaintiffs urged a New York federal judge to unfreeze a class action lawsuit involving allegations Kind LLC falsely advertises its products as not containing genetically modified organisms, claiming that the U.S. Department of Agriculture has not indicated when it will issue a new GMO disclosure standard for products.

UPDATE 3: On Feb. 11, 2019, 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.