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Kind Bar ‘Natural’ Consumer Deception Suit Ends in Company Win

Sept. 12, 2022, 3:36 PM

Kind LLC exited a long-running lawsuit over “natural” labels on certain snack bars and granola products, following a New York federal court ruling that the plaintiffs didn’t offer a plausible definition of the term and therefore failed to show how a reasonable consumer would be fooled.

Amanda Short and others sued in 2015, alleging they were duped by “All Natural/Non GMO” labels on fruit and nut bars and other products that contained synthetic ingredients. The label was discontinued by 2017.

Short and the others alleged that Kind violated the consumer protection laws of New York, California and Florida, and also raised common law claims. The consumers initially challenged numerous representations that appeared on KIND product labels, including the non-GMO representation.

In 2021, the US District Court for the Southern District of New York certified New York, California, and Florida classes. At that time, the court found that common questions of fact predominated because the “Non GMO” and the “All Natural” claims were coextensive and consumers said they believed GMO ingredients aren’t natural.

But the only issue remaining in the litigation is whether certain KIND products are properly described as “All Natural,” the court said Sept. 9.

Short and the others haven’t introduced evidence that could allow a fact-finder to determine a reasonable consumer’s understanding of “All Natural,” and therefore Kind is entitled to summary judgment, the court said.

Because the consumers have abandoned claims related to GMO ingredients, they can’t take advantage of the previous determination that a plausible definition of “All Natural” is “Non GMO,” the court said.

There is no objective definition of “All Natural,” the court said.

Each plaintiff here has advanced a different theory about how to understand the term, it said.

The Food and Drug Administration’s solicitation of comments in 2015 regarding a potential regulation demonstrates that the phrase “All Natural” is subject to numerous and distinct definitions, without a single objective meaning to consumers, the court said. The FDA still hasn’t issued a rule regarding the use of “natural” on foods, the court observed.

A survey purporting to show consumer understanding of the term is inadmissible because “it is biased and leads the consumer to select the answer preferred by plaintiffs,” the court said.

“Rather than determining how reasonable consumers understand the ‘All Natural’ claim, plaintiffs are supplying the standard, and then arguing that consumers were deceived,” Judge Naomi Reice Buchwald said.

Buchwald also decertified the classes.

Ahdoot & Wolfson PC and Finkelstein, Blankinship, Frei-Pearson & Garber LLP represented the plaintiffs. King & Spalding LLP represented Kind.

The case is In re Kind Bar, Healthy and All Natural Litig., S.D.N.Y., No. 1:15-md-02645, 9/9/22.

To contact the reporter on this story: Julie Steinberg in Washington at jsteinberg@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Maya Earls at mearls@bloomberglaw.com