Crazy Kind of Claims

November 14, 2018By Jennifer M. Thomas

Once in a while a consumer class action catches our particular attention.  Most recently, Kind LLC was sued in the U.S. District Court for the Eastern District of New York over its advertising, labels, and ingredient statements for its “Pressed by KIND” and “KIND Fruit Bites” products.   Readers may remember Kind as the company that took on FDA’s outdated definition of “healthy” and won.  Nevertheless Kind, like others in the food industry, continues to face class action litigation.

The lead plaintiff in this most recent case, Cassandra Song, claims that Kind’s advertising and product labeling falsely conveys that the fruit bar and fruit bites products are “manufactured from whole fruit ingredients,” and leave “a reasonable consumer” with the impression that Kind’s ingredients are (1) “whole . . . at the point directly prior to their transformation” into the products,  (2) “not processed into non-whole form product derivatives and then recombined to form the products,” and (3) “fresher and healthier . . . .”  The Plaintiff also alleges that Kind’s claims of “no added sugar” are false or misleading.

The Song complaint is not the first of its kind.  It closely resembles complaints filed against That’s It Nutrition, LLC and Trader Joe’s Company by the same law firm earlier this year.  Similar to those complaints, the recent complaint against Kind describes the target products’ nutrition labeling and ingredient statement, and conjectures that Kind’s alleged advertising messages cannot be true based on various label factors such as the quantity of Vitamin C in certain products (which allegedly shows that ascorbic acid must have been added), the economics of transporting fresh tropical fruit, the total declared sugar versus the likely sugar content of component ingredients, and the necessary addition of sugars in the course of dehydrating fruit using a process referred to as “dewatering impregnation soaking.”

These types of allegations involving ingredient identity and common and usual names have been met with mixed results in prior court cases.  The That’s It Nutrition and Trader Joe’s Company complaints mentioned above were voluntarily dismissed in July.

Given the potential barriers to the plaintiff’s success in this case (preemption, primary jurisdiction, consumer understanding, and materiality to name a few) and the seemingly speculative nature of some of the allegations, it is unclear whether the Song complaint will progress any further than the two similar actions that preceded it.  The mere filing of this complaint, however, serves as a reminder to companies that plaintiffs in the food space will continue to look back into companies’ processing and ingredient-sourcing to find fodder for false advertising litigation.