That was fast. Less than a week after the Food and Drug Administration sent a letter to Kind LLC, cautioning the company that some of the brand’s snack bars featured an illegal “healthy” labeling claim regarding the saturated fat content, a California consumer has already filed suit.
Relying heavily on the FDA’s letter, Brandon Kaufer filed a putative class action composed of all United States purchasers of four flavors of Kind’s snack bars: Fruit & Nut Almond & Apricot, Kind Plus Dark Chocolate Cherry Cashew + Antioxidants, Fruit & Nut Almond & Coconut, and Kind Plus Peanut Butter Dark Chocolate + Protein.
Kind “specifically targets” health conscious consumers, the complaint alleged, with statements like: “There’s healthy. There’s tasty. Then there’s healthy and tasty. At Kind, we believe you deserve both.” The referenced snack bars all ran afoul of Section 403 of the Food, Drug, and Cosmetic Act by labeling the products as “healthy,” “+” or “plus,” “good source of fiber,” and “no trans fats,” despite failing to meet the statutory requirements, Kaufer claimed.
For example, in order to label a product “healthy” in compliance with the FDCA, a food must be low in saturated fat, defined as containing 1 gram or less of saturated fatty acids and not more than 15 percent of calories from saturated fatty acids. Kind’s snacks failed to meet the standard, the FDA and Kaufer said. The Almond & Apricot bar contains 3.5 grams of saturated fat per 40 grams of food while the Almond & Coconut bar has 5 grams of saturated fat per 40 grams of the food.
The FDA found similar problems with other claims like “+” or “plus,” a term that can only be used if foods surpass certain set dietary requirements, and “no trans fats,” a label claim that requires a manufacturer to include the amount of polyunsaturated and monounsaturated fatty acids on the food label. None of Kind’s bars met these requirements, both the FDA letter and the complaint stated.
In addition to violations of the FDCA, Kaufer alleged Kind failed to follow California’s Sherman Food, Drug, and Cosmetic Law, as well as state false advertising and unfair business practices law. The suit requests damages, restitution, and injunctive relief to halt the allegedly false and deceptive labeling claims.
To read the complaint in Kaufer v. Kind LLC, click here.
To read the FDA’s letter to Kind, click here.
Why it matters: The lawsuit provides an important reminder that once a regulator’s action becomes public, companies can expect to see a class action (or multiple complaints) follow. While the letter from the FDA was sent to Kind on March 17, it was not released until the week of April 13. Kaufer’s suit was filed on April 17.