Case 1:15-cv-03699-NRB Document 1 Filed 05/13/15 Page 1 of 44
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`ROBERT O’BRIEN, individually, and
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`on behalf of all others similarly situated,
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`Plaintiff,
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`v.
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`KIND, LLC,
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`a New York limited liability company,
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`Defendant.
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`Case No. 15-cv-3699 (WHP)(AJP)
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`DEMAND FOR JURY TRIAL
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`CLASS ACTION COMPLAINT
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`Plaintiff ROBERT O’BRIEN (“Plaintiff”), individually, and on behalf of all others
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`similarly situated, by and through counsel, brings this action against Defendant KIND, LLC
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`(“KIND” or “Defendant”), as follows:
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`NATURE OF THE CASE
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`1.
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`Plaintiff brings this action individually, and on behalf of a Class of similarly
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`situated consumers throughout the United States, to redress the false and deceptive labeling of
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`KIND Bars as being “healthy” and made with “All Natural” ingredients.
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`2.
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`At issue in this case are four of Defendant’s snack bars: KIND Fruit & Nut
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`Almond & Apricot; KIND Fruit & Nut Almond & Coconut; KIND Plus Peanut Butter Dark
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`Chocolate + Protein; and KIND Plus Dark Chocolate Cherry Cashew + Antioxidants
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`(collectively, “KIND Bars”).
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`3.
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`Defendant markets the KIND Bars as, among other things, “healthy,” “healthy
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`and tasty, convenient and wholesome,” “plus,” “good source of fiber,” and “no trans fats.”
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`Defendant makes these and other claims on the labels of the KIND Bars and on its website
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`touting the healthiness of the bars to consumers.
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`4.
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`Despite Defendant’s claims that the KIND Bars are “healthy” and contain healthy
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`nutrients or ingredients, the KIND Bars do not meet the requirements established by the U.S.
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`Food and Drug Administration (“FDA”) to make such claims. In reality, the KIND Bars contain
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`elevated levels of saturated fat and other ingredients or elements that indicate the KIND Bars are
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`not truly “healthy.” Furthermore, KIND Bars do not contain enough nutrients to bear the terms
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`“+,” “plus,” or other health related terms.
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`5.
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`On March 17, 2015, KIND received a warning letter from the FDA regarding the
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`KIND Bars. In this letter, the FDA informed KIND that the KIND Bars “are in violation of
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`section 403 of the Federal Food, Drug, and Cosmetic Act [(“FDCA”) 21 U.S.C. § 343] and its
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`implementing regulations found in Title 21, Code of Federal Regulations, Part 101 (21 C.F.R.
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`§ 101).” A true and correct copy of the FDA’s letter dated March 17, 2015 is attached hereto as
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`Exhibit A (“FDA Letter”).
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`6.
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`The FDCA enumerates various ways that “[a] food shall be deemed to be
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`misbranded.” 21 U.S.C. § 343. As described below, the KIND Bars are in violation of several of
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`these enumerated provisions. Accordingly, the KIND Bars are misbranded within the meaning of
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`the FDCA and are being falsely and deceptively marketed to consumers.
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`7.
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`As a result of Defendant’s false and misleading labeling, packaging, and
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`marketing of the KIND Bars, Plaintiff and members of the proposed Class have suffered injuries
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`in fact, including economic damages, and have lost money or property. Specifically, Plaintiff and
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`members of the Class have purchased the KIND Bars under the mistaken belief that these
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`products were “healthier” and/or had additional benefits compared to other snack products. But
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`for Defendant’s false and misleading advertising and marketing of the KIND Bars, Plaintiff and
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`members of the Class would not have purchased or paid as much for the KIND Bars.
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`8.
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`Plaintiff brings claims on behalf of himself and the proposed Class for violations
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`of the New York Deceptive Acts and Practices Law, Gen. Bus. § 349 (“NYDAL”); the New
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`York False Advertising Law, Gen. Bus. § 350 (“NYFAL”); breach of express warranty; breach
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`of implied warranty of merchantability; unjust enrichment; intentional misrepresentation;
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`negligent misrepresentation; the California Consumers Legal Remedies Act, Cal. Civ. Code
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`§§ 1750, et seq. (“CLRA”); the California False Advertising Law, Cal. Bus. & Prof. Code
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`§§ 17500, et seq. (“FAL”); and the California Unfair Competition Law, Cal. Bus. & Prof. Code
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`§§ 17200, et seq. (“UCL”). Plaintiff seeks to permanently enjoin Defendant from using the
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`claims “healthy,” “+” or “plus,” “good source of fiber,” and “no trans fats” on the labels of the
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`KIND Bars and from marketing and selling the KIND Bars in the United States as currently
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`advertised, packaged, and labeled. Further, Plaintiff seeks to obtain restitution and other
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`appropriate relief in the amount by which Defendant was unjustly enriched as a result of its sales
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`of the KIND Bars. Finally, Plaintiff seeks reasonable attorneys’ fees pursuant to Cal. Code Civ.
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`Proc. § 1021.5 as this lawsuit seeks the enforcement of an important right affecting the public
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`interest and satisfies the statutory requirements for an award of attorneys’ fees.
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`9.
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`Plaintiff brings this action on behalf of himself and other similarly situated
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`individuals, entities, and consumers throughout the United States to halt the dissemination of
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`these false and misleading advertising messages, correct the false and misleading perception
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`Defendant has created in the minds of purchasers, and to obtain redress for those who have
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`purchased Defendant’s offending snack bars, as described herein.
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`PARTIES
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`10.
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`Plaintiff Robert O’Brien is, and at all times relevant to this action has been, a
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`resident of California and, thus, is a citizen of California. Plaintiff purchased a KIND Plus
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`Peanut Butter Dark Chocolate + Protein bar and has purchased each of the other KIND Bars at
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`various time periods prior to this action.
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`11.
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`Defendant KIND, LLC (“KIND”) is a Delaware Limited Liability Company with
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`its principal place of business located at 8 West 38th Street, 6th Floor, New York, New York.
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`KIND, therefore, is a citizen of both Delaware and New York.
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`12.
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`KIND is a manufacturer and global distributor of whole nut and fruit bars and
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`snacks targeted at health conscious consumers. KIND was founded in 2004 and now sells its
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`products throughout the United States and internationally. Defendant markets its products to
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`specifically target health conscious consumers. In fact, KIND’s website states prominently on its
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`“About KIND” page: “There’s healthy. There’s tasty. Then there’s healthy and tasty. At KIND,
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`we believe you deserve both-we call it our brAND philosophy.”1
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`13.
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`Until recently, Defendant was actually called “KIND Healthy Snacks.” Multiple
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`references to the company in articles and on the Internet are to KIND Healthy Snacks2 and the
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`company’s logo-recently removed from its website contained the name KIND Healthy Snacks.
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`14.
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`Using its “brAND” philosophy to market its purportedly healthy snack products,
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`Defendant sold 458 million units in the United States in 2014.3
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`1 About KIND, KINDSNACKS, http://www.kindsnacks.com/about/ (last accessed April 30, 2015).
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`2 See, e.g., Mian Ridge, Kind Healthy Snacks founder describes his long slog to success, LA TIMES
`(March 22, 2015), available at: http://www.latimes.com/business/la-fi-books-20150322-story.html.
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`JURISDICTION AND VENUE
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`15.
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`Jurisdiction over Defendant is proper because it conducts business within this
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`District. Therefore, Defendant has the minimum contacts necessary to fall under the jurisdiction
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`of this Court.
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`16.
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`This Court has original jurisdiction over the subject matter of this action pursuant
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`to 28 U.S.C. § 1332(d). The proposed Class involves more than 100 individuals. A member of
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`the proposed Class is a citizen of a state different from Defendant, and the amount of
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`controversy, in the aggregate, exceeds the sum of $5,000,000 exclusive of interest and costs.
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`17.
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`Venue is proper in this district under 28 U.S.C. § 1391, because Defendant is a
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`resident of the state in which this District is located.
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`SUBSTANTIVE ALLEGATIONS
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`18.
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`KIND was established in 2004 as a natural foods company with eight bar
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`varieties. Today, KIND boasts over twenty-two bars and six “Healthy Grains snackable
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`clusters.”4 Its snack products can be found in 150,000 retail stores in the United States.
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`19.
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`KIND claims that its products “are made from all-natural whole nuts, fruits and
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`whole grains,” and that consumers will “find all of our snacks are pretty much the nirvana of
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`healthful tastiness.”5
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`20.
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`KIND prides itself on being a “healthy” snack brand. Its entire company image,
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`marketing, and branding revolves around providing consumers with healthy and tasty snacks.
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`3 Danielle Burger and Craig Giammona, Kind Bars Aren’t Healthy Enough for ‘Healthy’ Tag, FDA Says,
`BLOOMBERG BUSINESS (April 14, 2015), available at: http://www.bloomberg.com/news/articles/2015-
`04-14/kind-bars-aren-t-healthy-enough-for-healthy-label-fda-says.
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`4 About KIND, KINDSNACKS, http://www.kindsnacks.com/about/ (last accessed April 30, 2015).
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`5 About KIND, KINDSNACKS, http://www.kindsnacks.com/about/ (last accessed April 30, 2015).
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`21.
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`However, KIND’s snack products are not as healthy as KIND represents them to
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`be. The KIND Bars do not meet the necessary FDA or FDCA requirements to be labeled
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`“healthy,” “plus,” “good source of fiber,” “no trans fats,” or other claims KIND makes with
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`respect to the KIND Bars.
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`KIND Fruit & Nut Almond & Apricot
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`22.
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`Defendant advertises the “KIND Fruit & Nut Almond & Apricot” KIND Bars by
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`putting false and misleading claims on the label, stating or suggesting that the product is “All
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`Natural,” made from “natural ingredients,” and is an “all natural food.” Defendant further falsely
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`claims that the product is “healthy” and “wholesome,” and makes claims suggesting that the
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`product may be useful in maintaining healthy dietary practices such as “Good Source of Fiber,”
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`“No Trans Fat,” “Very Low Sodium,” and “low glycemic index.”
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`23.
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`The ingredients in the “KIND Fruit & Nut Almond & Apricot” include
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`“Almonds, coconut, honey, non GMO glucose, apricots, apple juice, crisp rice, vegetable
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`glycerine, chicory root fiber, soy lecithin, citrus pectin, [and] natural apricot flavor.”
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`Additionally, one “40 [gram]” bar contains “3.5 [grams of] saturated fat.”
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`24.
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`Despite being advertised as “All Natural,” the product contains the artificial and
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`synthetic ingredients vegetable glycerin, soy lecithin, non-GMO glucose, and natural apricot
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`flavor. Moreover, the product is not “healthy” because it contains levels of saturated fat in excess
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`of FDCA regulations.
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`KIND Fruit & Nut Almond & Coconut
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`25.
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`Defendant advertises the “KIND Fruit & Nut Almond & Coconut” product by
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`putting false and misleading claims on the label, stating or suggesting that the product is “All
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`Natural,” made from “natural ingredients,” and is an “all natural food.” Defendant further falsely
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`claims that the product is “healthy” and “wholesome,” and makes claims suggesting that the
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`product may be useful in maintaining healthy dietary practices such as “Good Source of Fiber,”
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`“No Trans Fat,” “Very Low Sodium” and “low glycemic index.”
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`26.
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`The ingredients in the “KIND Fruit & Nut Almond & Coconut” include
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`“Almonds, coconut, honey, non GMO glucose, crisp rice, chicory root fiber, [and] soy lecithin.”
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`Additionally, one “40 [gram]” bar contains “5 [grams of] saturated fat.”
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`27.
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`Despite being advertised as “All Natural,” the product contains the artificial and
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`synthetic ingredients soy lecithin and non-GMO glucose. Moreover, the product is not “healthy”
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`because it contains levels of saturated fat in excess of FDCA regulations.
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`KIND PLUS Peanut Butter Dark Chocolate + Protein
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`28.
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`Defendant advertises the “KIND Plus Peanut Butter Dark Chocolate + Protein”
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`product by putting false and misleading claims on the label, stating or suggesting that the product
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`is “All Natural” and is an “all natural food.” Defendant further falsely claims that the product is
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`“healthy” and “wholesome,” and makes claims suggesting that the product may be useful in
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`maintaining healthy dietary practices such as “Good Source of Fiber,” “No Trans Fat,” “Low
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`Sodium,” “+ protein,” “7g protein,” and “low glycemic index.”
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`29.
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`The ingredients in the “KIND Plus Peanut Butter Dark Chocolate + Protein”
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`include “Peanuts, almonds, honey, sugar, non GMO glucose, soy protein isolate, palm kernel oil,
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`cocoa powder, peanut butter, chicory root fiber, tapioca starch, vanilla, whole milk, soy lecithin,
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`[and] salt. ” Additionally, one “40 [gram]” bar contains “3.5 [grams of] saturated fat.”
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`30.
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`Despite being advertised as “All Natural,” the product contains the artificial and
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`synthetic ingredients soy protein isolate, palm kernel oil, non GMO glucose and soy lecithin.
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`Moreover, the product is not “healthy” because it contains levels of saturated fat in excess of
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`FDCA regulations.
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`KIND PLUS Dark Chocolate Cherry Cashew + Antioxidants
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`31.
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`Defendant advertises the “KIND Plus Dark Chocolate Cherry Cashew +
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`Antioxidants” product by putting false and misleading claims on the label, stating or suggesting
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`that the product is “All Natural” and is an “all natural food.” Defendant further falsely claims
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`that the product is “healthy” and “wholesome,” and makes claims suggesting that the product
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`may be useful in maintaining healthy dietary practices such as “Good Source of Fiber,” “No
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`Trans Fat,” “Low Sodium,” “+ antioxidants,” “50% DV antioxidants vitamins A, C, and E” and
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`“low glycemic index.”
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`32.
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`The ingredients in the “KIND Plus Dark Chocolate Cherry Cashew +
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`Antioxidants” include “Mixed nuts (almonds, cashews, peanuts), dried fruit (cherries, raisins,
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`cranberries), sugar, honey, non GMO glucose, palm kernel oil, crisp rice, cocoa powder, chicory
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`root fiber, soy lecithin, vanilla whole milk, salt, [and] sunflower oil. ” Additionally, one “40
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`[gram]” bar contains “2.5 [grams of] saturated fat.”
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`33.
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`Despite being advertised as “All Natural” the product contains the artificial and
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`synthetic ingredients palm kernel oil, non-GMO glucose, and soy lecithin. Moreover, the product
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`is not “healthy” because it contains levels of saturated fat in excess of FDCA regulations.
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`FDA LABEL REQUIREMENT VIOLATIONS
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`Saturated Fats
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`34.
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`21 C.F.R. § 101.65(d)(2) requires that in order for a food to be labeled as
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`“healthy” it must, among other things, be low in saturated fat.
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`35.
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`In accordance with 21 C.F.R. § 101.65(d)(2), food products may only use the term
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`“healthy” as an implied nutrient content claim on the label or in the labeling of a food provided
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`that the food, among other things, is “low saturated fat” as defined in 21 C.F.R. § 101.62(c)(2)
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`(i.e., the food has a saturated fat content of 1 g or less per Reference Amount Customarily
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`Consumed (RACC) and no more than 15 percent of the calories are from saturated fat).
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`However, the KIND Bars have more than 1 gram of saturated fat.
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`36.
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`The KIND Fruit & Nut Almond & Apricot bar contains 3.5 grams of saturated fat
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`per 40 grams of the food. The KIND Fruit & Nut Almond & Coconut bar contains 5 grams of
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`saturated fat per 40 grams of the food. The KIND Plus Peanut Butter Dark Chocolate + Protein
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`bar contains 3.5 grams of saturated fat per 40 grams of the food. And the KIND Plus Dark
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`Chocolate Cherry Cashew + Antioxidants bar contains 2.5 grams of saturated fat per 40 grams of
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`the food. Each of these bars contains more than 1 gram of saturated fat per 40 grams RACC,
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`meaning they cannot be defined as low in saturated fat, and in turn, cannot be labeled as
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`“healthy.”
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`37. Moreover, those amounts exceed the maximum of 15% of calories from saturated
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`fat in the “low saturated fat” definition. Accordingly, the KIND Bars do not meet the
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`requirements for use of the nutrient content claim “healthy” on a food label and are misbranded
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`pursuant to 21 C.F.R. § 101.65(d)(2) and California’s counterpart to the FDCA, known as the
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`Sherman Law, Cal. Health & Safety Code § 109875, et seq.
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`38.
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`A food is defined as being low in saturated fat if “[t]he food contains 1 g [gram]
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`or less of saturated fatty acids per reference amount customarily consumed and not more than 15
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`percent of calories from saturated fatty acids.” 21 C.F .R. § 101.62(c)(2).
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`39.
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`Because Defendant labels the KIND Bars as “healthy” despite the fact that they
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`do not meet the requirements to bear such a claim, the KIND Bars are misbranded within the
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`meaning of 21 U.S.C. § 343(r)(1)(A). See also FDA Letter, § l.a.
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`“+” and “Plus” Labels
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`40.
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`Below are images depicting Defendant’s KIND Plus Peanut Butter Dark
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`Chocolate + Protein bar and KIND Plus Dark Chocolate Cherry Cashew + Antioxidants bar:
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`41.
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`Defendant labels its KIND Plus Peanut Butter Dark Chocolate + Protein and
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`KIND Plus Dark Chocolate Cherry Cashew + Antioxidants Bars with the term “+” and/or “plus.”
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`However, neither of these products meet the requirements set forth in 21 C.F.R. § 101.54(e),
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`which regulates the term “plus.”
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`42.
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`The “KIND Peanut Butter Dark Chocolate + Protein” and “KIND Dark Chocolate
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`Cherry Cashew + Antioxidants” products bear the term “+” (plus) as part of the product name
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`but the products do not comply with the requirements governing the use of that term. The term
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`“+” read in conjunction with “7 g Protein” and “50% DV Antioxidant, vitamins A, C and E,”
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`meets the definition for a nutrient content claim because it characterizes the products’ level of
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`vitamins and minerals, which are nutrients of the type required to be in nutrition labeling. See 21
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`C.F.R. § 101.13(b).
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`43.
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`21 C.F.R. § 101.54(e) states, in part, that the term “plus”
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`. . . may be used on the label or in labeling of foods to describe the level of
`protein, vitamins, minerals, dietary fiber, or potassium . . . provided that:
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`(i) The food contains at least 10 percent more of the RDI
`[Reference Daily Intake] for vitamins or minerals or of the DRV
`[Daily Reference Value] for protein, dietary fiber, or potassium
`(expressed as a percent of the Daily Value) per reference amount
`customarily consumed than an appropriate reference food; and
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`(ii) Where the claim is based on a nutrient that has been added to
`the food, that fortification is in accordance with the policy on
`fortification of foods in [21 C.F.R.] § 104.20; and
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`(iii) [the claim bears the required information for relative claims as
`described in 21 C.F.R. § 101.13(j)(2) and 1 01.54(e)(1)(iii)].
`21 C.F.R. § 101.54(e).
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`44.
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`Defendant’s KIND Plus Peanut Butter Dark Chocolate + Protein bar does not
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`contain a reference to, or a percentage of, how much more protein the product contains in
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`comparison to the RDI or DRV of protein in immediate proximity to the term “plus.” Further,
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`Defendant’s KIND Plus Dark Chocolate Cherry Cashew + Antioxidants bar does not contain a
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`reference to, or a percentage of, the amount of antioxidants in the product that exceeds the RDI
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`or DRV of the antioxidant ingredient in the product in immediate proximity to the term “plus.”
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`45.
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`Because Defendant labels its KIND Plus Peanut Butter Dark Chocolate + Protein
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`and KIND Plus Dark Chocolate Cherry Cashew + Antioxidants bars with the term “+” and/or
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`“plus” despite the fact that they do not meet the requirements to bear such a claim, the KIND
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`Bars are misbranded within the meaning of 21 U.S.C. § 343(r)(1)(A). See also FDA Letter,
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`Exhibit A, § 1.b.
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`“No Trans Fats”
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`46.
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`Defendant labels the KIND Bars with the phrase “no trans fats.” However, none
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`of the KIND Bars meet the requirements set forth in 21 C.F.R. § 101.9(c)(2)(iii) and (iv) to be
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`labeled as containing “no trans fats.”
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`47.
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`21 C.F.R. § 101.9(c)(2)(iii) and (iv) require that in order for a food to be labeled
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`as containing “no trans fats,” a manufacturer must include the amount of polyunsaturated and
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`monounsaturated fatty acids, respectively, on the food label.
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`48.
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`Defendant fails to include the levels of polyunsaturated and monounsaturated
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`fatty acids on the labeling of the KIND Bars as required by federal regulations. Accordingly,
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`Defendant cannot make a claim about fatty acids on the labeling of the KIND Bars, including
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`using the phrase “no trans fats.”
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`49.
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`Because Defendant labels the KIND Bars as having “no trans fats” despite the
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`fact that they do not meet the requirements to bear such a claim, the KIND Bars are misbranded
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`within the meaning of 21 U.S.C. § 343(q)(2)(A). See also FDA Letter, Exhibit A, § 3.a.
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`50.
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`The KIND Bars are also misbranded because the nutrition information is not
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`disclosed in accordance with 21 C.F.R. § 101.9. Specifically, the labels bear a claim about fatty
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`acids (i.e., “no trans fat”) but fail to include the levels of monounsaturated fatty acids and
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`polyunsaturated fatty acids in the nutrition information as required by §§ 21 C.F.R. § 101.9
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`(c)(2)(iii) and (iv). The “KIND Plus Peanut Butter Dark Chocolate + Protein” product label
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`includes the nutrient content claims: “+ protein” and “plus 7 g protein” on the principal display
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`panel; however, the nutrition label fails to include the percent DV for protein as required when
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`the label bears a nutrient content claim for protein as required by 21 C.F.R. § 101.9(c)(7)(i).
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`“Good Source of Fiber”
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`51.
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`All four of the KIND Bars are further misbranded within the meaning of 21
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`U.S.C. § 343(r)(2)(A)(v), because the labels include the nutrient content claim “Good Source of
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`Fiber” without including the required statement disclosing that the food is not low in total fat in
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`immediate proximity to the claim. Pursuant to 21 C.F.R. § 101.54(d), if a product label makes a
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`claim with respect to the level of dietary fiber (e.g., that the product is a good source of fiber)
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`and the food is not “low” in total fat as defined in 21 C.F.R. § 101.62(b)(2), then the label must
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`disclose the level of total fat per serving.
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`52.
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`The KIND Bars exceed the maximum of 3 grams of total fat per 40 gram in the
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`“low fat” definition of RACC. Therefore, the KIND Bars are not “low” in total fat and Defendant
`
`is required to disclose that fact on its labels in immediate proximity to the claims that the KIND
`
`Bars are a “good source of fiber.”
`
`53.
`
`Defendant labels the KIND Bars with the phrase “good source of fiber.”
`
`However, none of the KIND Bars meet the requirements set forth in 21 C.F.R. § 101.54(d) to be
`
`labeled as being a “good source of fiber.”
`
`54.
`
`21 C.F.R. § 101.54(d) requires that if a food is labeled as being a “good source of
`
`fiber,” and the food is not “low” in total fat, then the label must disclose the level of total fat per
`
`serving in immediate proximity to the claim that the food is a “good source of fiber.”
`
`55.
`
`21 C.F .R. § 10 1.62(b)(2) defines a food as being “low” in fat if it has a RACC
`
`greater than 30 g or greater than 2 tablespoons and contains 3 g or less of fat per RACC, or has a
`
`RACC of 30 g or less or 2 tablespoons or less and contains 3 g or less of fat per RACC and per
`
`50 g of food.
`
`56.
`
`The KIND Fruit & Nut Almond & Apricot bar contains 10 g of total fat per 40 g
`
`of the food. The KIND Fruit & Nut Almond & Coconut bar contains 12 g of total fat per 40 g of
`
`the food. The KIND Plus Peanut Butter Dark Chocolate + Protein bar contains 13 g of total fat
`
`per 40 g of the food. And the KIND Fruit & Nut Dark Chocolate Cherry Cashew + Antioxidants
`
`bar contains 9 g of total fat per 40 g of the food. Each of these bars contains more than 3 g of
`
`total fat per 40 g RACC, meaning they are not “low” in total fat. Thus, they cannot be labeled as
`
`  
`
`13  
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`Case 1:15-cv-03699-NRB Document 1 Filed 05/13/15 Page 14 of 44
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`being a “good source of fiber” unless Defendant also discloses the level of total fat per serving in
`
`immediate proximity to that claim.
`
`57.
`
`Because Defendant labels the KIND Bars as a “good source of fiber” despite the
`
`fact that they do not meet the requirements to bear such a claim, the KIND Bars are misbranded
`
`within the meaning of 21 U.S.C. § 343(r)(2)(A)(V). See also FDA Letter, Exhibit A, § 2.
`
`58.
`
`KIND Bars are also misbranded within the meaning of 21 U.S.C. § 343(a)
`
`because their labeling is false or misleading. Reasonable consumers, including Plaintiff and
`
`Class members, expect that the KIND Bars are properly labeled as “healthy,” “+” or “plus,” “no
`
`trans fats,” and “good source of fiber.” Because the KIND Bars bear these claims but do not
`
`meet the requirements to do so, their labeling is false or misleading within the meaning of the
`
`FDCA.
`
`ARTIFICIAL INGREDIENTS IN THE KIND BARS
`
`59. Webster’s New World Dictionary defines “natural” as “produced or existing in
`
`nature; not artificial or manufactured.”6 “All” is defined as “the whole extent or quantity of.”7
`
`Thus, the combined use of “All Natural” on the labels of the KIND Bars indicate to the average
`
`reasonable person that “the whole extent or quantity of” the ingredients contained in the KIND
`
`Bars are “produced or existing in nature; not artificial or manufactured.”
`
`60.
`
`KIND made a far broader and more encompassing representation by labeling its
`
`KIND Bars as “All Natural” as opposed to simply saying they were “natural.” While federal
`
`regulators have established policies or regulations addressing the meaning of “natural” when
`
`used in food labeling, no regulations have specifically addressed the broader representation made
`                                                                                                                          
`6 WEBSTER’S NEW WORLD DICTIONARY OF THE AMERICAN LANGUAGE, 2nd College Ed. (Simon &
`Schuster, 1984), “natural.”
`
`7 Id., “all.”
`
`  
`
`14  
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`Case 1:15-cv-03699-NRB Document 1 Filed 05/13/15 Page 15 of 44
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`by labeling the product as “All Natural,” and the only policy to address “All Natural” labeling
`
`requires disclosure of any synthetic or artificial ingredients so as to indicate they are not natural.
`
`However, it is noteworthy that although the broader “All Natural” representation was made on
`
`KIND Bars’ labeling, the presence of the synthetic and artificial ingredients in them also violates
`
`the federal regulators’ policy and regulations for the narrower “natural” representation.
`
`61.
`
`The FDA has not promulgated a regulation defining the term “natural” or “All
`
`Natural.” However, the agency has stated that it “will maintain its policy regarding the use of
`
`‘natural,’ as meaning that nothing artificial or synthetic (including all color additives regardless
`
`of source) has been included in, or has been added to, a food that would not normally be
`
`expected to be in the food.” 58 Fed. Reg. 2302, 2407. Although this definition is not a regulation,
`
`it is the “most definitive statement of the agency’s view.”8
`
`62.
`
`Courts and trade members have requested that the FDA provide a regulatory
`
`definition of “natural,” however, the FDA has declined to provide a determination because the
`
`time required to conduct a public hearing “would take two to three years to complete,” and the
`
`agency’s resources are currently devoted to other, higher priorities.”9
`
`63.
`
`Similar to the FDA, the United States Department of Agriculture (“USDA”),
`
`which regulates the labeling of meat and poultry, has also set limits on the use of the term
`
`“natural.” The USDA’s Food Safety and Inspection Service states that the term “natural” may be
`
`used on labeling of meat and poultry products so long as “(1) the product does not contain any
`
`artificial flavor or flavorings, color ingredient, or chemical preservative . . . or any other artificial
`
`                                                                                                                          
`8 See Letter from Michael M. Landa, Acting Director, Center for Food Safety and Applied Nutrition, to
`Judge Jerome B. Simandle dated September 16, 2010, filed in Ries et al., v. Hornell Brewing Co., Inc.,
`Case No. 10-1139 (N.D. Cal.), Docket No. 54 (hereinafter “Letter to Judge Simandle”).
`
`9 See id. (Letter to Judge Simandle).
`
`  
`
`15  
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`Case 1:15-cv-03699-NRB Document 1 Filed 05/13/15 Page 16 of 44
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`or synthetic ingredient, and (2) the product and its ingredients are not more than minimally
`
`processed.”10
`
`64.
`
`Under the USDA’s guidelines, if a product is severely processed, the product can
`
`be labeled “All Natural” if the ingredient would not significantly change the character of the
`
`product to the point that it could no longer be considered a natural product. However, even in
`
`that case, “the natural claim must be qualified to clearly and conspicuously identify the
`
`ingredient, e.g., all natural or all natural ingredients except dextrose, modified food starch, etc.”11
`
`65.
`
` Congress has defined “synthetic” to mean “a substance that is formulated or
`
`manufactured by a chemical process or by a process that chemically changes a substance
`
`extracted from naturally occurring plant, animal, or mineral sources, except that such term shall
`
`not apply to substances created by naturally occurring biological processes.” 7 U.S.C. § 6502
`
`(21); see also 7 C.F.R. § 205.1, et seq. (defining, in USDA’s National Organic Program
`
`regulations, a “nonsynthetic” as “a substance that is derived from mineral, plant, or animal
`
`matter and does not undergo a synthetic process as defined in section 6502(21) of the Act (7
`
`U.S.C. § 6502(21))”).
`
`66.
`
`The KIND Bars contain several synthetic ingredients described below.
`
`Soy Lecithin and Soy Protein Isolate
`
`67.
`
`Each of the KIND Bars contains the artificial ingredient soy lecithin. In addition,
`
`the “KIND Plus Peanut Butter Dark Chocolate + Protein” contains the artificial ingredient Soy
`
`                                                                                                                          
`10 See The United States Department of Agriculture Food Standards and Labeling Policy Book, UNITED
`available
`at
`STATES
`DEPARTMENT
`AGRICULTURE
`(August
`2005),
`OF
`www.fsis.us