Most of the FDA’s concerns related to technical violations (eg. failure to meet conditions of use for nutrient content claims such as ‘healthy’, failure to list street address on pack, failure to use correct names in the ingredient list), prompting some commentators to wonder whether KIND had submitted its labels for an in-depth legal review.
FDA warning letters are often seized upon by plaintiff’s attorneys looking for targets in food labeling lawsuits, although they are not legally binding.
And while KIND is working with the agency to address all of its concerns (click HERE), a string of lawsuits has since been filed in California and New York accusing KIND of violations of various consumer protection laws (among other things).
‘All Natural’ and ‘healthy’ statements are false and misleading
In one complaint filed in the Central District of California on April 17, plaintiffs Charlie McDonald and Benjamin Karter also home in on KIND’s ‘all-natural’ label claims, although these were not mentioned by the FDA in its warning letter.
It argues: “Defendant claims… [its products are] ‘healthy and tasty, convenient and wholesome…’ and ‘All Natural’. However, the KIND products are neither ‘healthy’ nor ‘all natural’... Instead, the KIND products contain unlawful levels of saturated fat and artificial ingredients such as soy lecithin, soy protein isolate, palm kernel oil, and vegetable glycerin.
“Defendant conveyed to consumers that the products are ‘All Natural’ and ‘healthy’ even though defendant knew that such statements were false and misleading.”
It then goes on to cite several of the issues highlighted by the FDA warning letter, notably that selected KIND bars “do not meet the requirements for use of the nutrient content claim ‘healthy’,” as they contain more than 1g of saturated fat per Reference Amount Customarily Consumed (one 40g bar) and more than 15% of their calories come from saturated fat.
KIND: We do not comment on pending litigation
Asked to comment on the lawsuits, Joe Cohen, SVP of Communications at KIND told FoodNavigator-USA: "We do not comment on pending litigation."
Asked last week whether KIND had had its labels reviewed by attorneys, he said: “We are currently working with counsel and we rely on a team of operations and regulatory professionals and we continue to grow that team.”
Too bad KIND is now the healthier poster child who must lead the way
As for the PR impact of the warning letter (many news organizations went with the headline, 'Some KIND Bars Not So Healthy, FDA Says'), many labeling experts, RDs and other nutrition professionals say it would be unfortunate if KIND’s reputation was permanently damaged by the incident, although some also acknowledged that it was avoidable.
Dr Rachel Cheatham, founder and CEO of consultancy Foodscape Group LLC, meanwhile, argued that the conditions of use around terms such as ‘healthy’ were outmoded.
"Terms like 'healthy' or symbols like '+' that have strict regulatory guidance are well intended to protect consumers, but often outmoded," she told FoodNavigator-USA.
“Meanwhile, KIND is well intended in producing healthier products for consumers, but sometimes front of package details oversell back of package nutrition facts. This is not about safety, quality or some elaborate consumer deception. Rather, this is about lining up labeling claims with current nutrition science with modern marketing.
“Too bad KIND is now the healthier poster child who must lead the way."
Attorney: These days, a FDA warning letter is only the start of a company’s problems
However, attorneys told us the warning letter and associated lawsuits merely highlighted how important it is to get a lawyer to review your labels before you put a product on the market.
Bruce Silverglade, principal at law firm Olsson Frank Weeda Terman Matz PC, told FoodNavigator-USA: “These days, an FDA warning letter is only the start of a company’s problems. Plaintiff class action attorneys, within a few weeks, love to use such warning letters as a basis to file lawsuits under state consumer protection laws; and litigating or even settling those lawsuits can be many times more expensive than just responding to the FDA.”
He added: "FDA’s warning letter should be a reminder to all companies that, regardless of size, they are subject to FDA scrutiny. FDA’s nutrition and health claim regulations are complex – grey areas exist and a routine label review may not be sufficient to catch errors absent a more in-depth legal analysis."
The cases are: Charlie McDonald & Benjamin Karter v KIND LLC Central District of California, California 8:15-cv-615; Amanda Short and Sarah Thomas et al v Kind LLC Eastern District of New York, 1:15-cv-02214; and Brandon Kaufer v KIND LLC Central District of California, California 2:150cv-02878.
More to follow...