By Richard Thompson
KIND, LLC was served a warning letter by the FDA for mislabeling its products and is now facing numerous class-action lawsuits after the letter went public. KIND is just the latest in a swarm of lawsuits to allege false advertising with regards to mislabeling claims, most notably “all natural.”
In a letter sent to KIND in late March, the FDA accused KIND of mislabeling on four specific bars – Fruit & Nut Almond & Apricot, Fruit & Nut Almond & Coconut, KIND Plus Peanut Butter Dark Chocolate + Protein and KIND Plus Dark Cherry Cashew + Antioxidants – on which the FDA says KIND used the terms “healthy,” “low sodium,” “no trans fats” and “good source of fiber” incorrectly.
The warning letter was the result of a routine product check, according to Noah Bartolucci, Strategic Communications and Public Engagement, Food and Drug Administration. The FDA would not comment why the KIND bars were picked off the shelf. “We carry these out periodically, consistent with the agency’s charge,” said Bartolucci, “but honestly, it varies.”
The warning letter gave KIND 15 days to start taking steps to change the labels as well as its website to conform with FDA definitions. “KIND has, and will continue to take efforts to conform to all FDA regulations,” Joe Cohen, Senior Vice President of Communications at KIND, said, “We’ve submitted a plan to FDA outlining the steps we’ll take to modify our packaging and website in accordance with the issues raised in the warning letter.”
KIND says it is working with the FDA on how it can use “healthy” on its bar labels. “We are…working closely with the FDA to reach alignment on how we can use ‘healthy’ on our packaging,” Cohen said, “The regulatory definition of ‘healthy’ is complex.” The FDA regulates the use of the term as a nutrient content claim, but does not regulate more general use of the term.
KIND doesn’t plan to change its recipes for any of its products, but instead will focus on the labeling. “This matter relates strictly to the language on our labeling and our website,” said Cohen.
KIND maintains that its bars are good for you, even though the exact wording on the label may not be allowed. “We’ve received a great deal of support from medical and nutritionist communities,” said Cohen, “and many experts have spoken up to endorse…the benefits of eating nuts and nutritious fats.”
As soon as the warning letter became public, KIND was slammed with a number of lawsuits.
As of late April, KIND has been drawn into eight different consumer lawsuits from individuals in both California and New York, with all claiming that KIND’s mislabeling violated federal, state and consumer protection laws and caused them injury or damage.
One claimant, Brandon Kaufer, represented by Pearson, Simon, and Warsaw, LLP, alleges that he, and others similarly situated, had suffered injury by purchasing the KIND bars under the mistaken belief they were “healthier” and incurred losses of at least $5,000,000 dollars due to KIND’s deliberate deception.