Kind Bar Class Action Should Move Forward, Plaintiffs Argue

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Plaintiffs have 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.

The Kind GMO claims were put on ice earlier this year after the USDA indicated it would be issuing a GMO disclosure standard by July 29, 2018.

However, this deadline has come and gone and the plaintiffs argue that there is no indication that the guidance will be released anytime soon.

The Kind class action lawsuit also accuses the manufacturer of falsely labeling its products as being “all natural.” The all natural claims were also put on hold in March because the U.S. Food and Drug Administration had suggested it would set a standard for the labeling of “natural” products.

According to the plaintiffs, the FDA’s public comment period on the food labeling rules for products using the term “natural” on the label closed more than two years ago, and the agency still has not released any rules or guidance on the issue.

“The FDA and USDA have not acted on either of these areas and they are not likely to act, as the federal trend of deregulation continues,” the plaintiffs argue. “Therefore, Plaintiffs respectfully request that the Court lift the stays on Plaintiffs’ ‘all natural’ and ‘non-GMO’ claims, allowing this action to recommence without further delay.”

The Kind class action lawsuit involves more than a dozen cases that have been consolidated in New York federal court. The plaintiffs claim they paid a premium for Kind snack bars because they relied on labeling that allegedly falsely suggested they were made from all-natural or non-GMO ingredients.

Although the USDA has not officially released a rule about GMO ingredients, the agency did publish a proposed rule for the national bioengineered food standard in May. The proposed rule sets guidelines for foods that must bear a representation on the label that they are bioengineered or contain bioengineered ingredients.

“This rule has never been formally adopted and no final rule has been issued establishing a national GMO standard,” the plaintiffs say. “However, the content of the proposed rule indicates that, even if such a rule did materialize, it would not weigh against Plaintiffs’ claims in this litigation.”

The plaintiffs argue that their case has already been delayed for two years and that further delay could be prejudicial to their claims.

“As the stay continues, evidence grows stale, witnesses’ memories will fade, and Defendant’s employees will leave or retire,” the plaintiffs argue.

According to the Kind bar class action lawsuit, Kind LLC markets its snack bars as a healthy and natural source by including prominent labels suggesting the products are “all natural,” “healthy,” and/or “non GMO.”

The Kind class action lawsuit survived a motion to dismiss filed back in 2016.

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

The Kind Bar False Advertising 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 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.