Kind bar featured in initial In re Kind LLC “Healthy and All Natural” Complaint

A federal judge in New York certified classes of New York, California, and Florida consumers this week in an “all-natural” product mislabeling class action case, finding all three states’ consumer protection laws contain important, similar elements.

On March 24^th, 2021, Senior District Judge William H. Pauley, III of the United States District Court in the Southern District of New York certified classes of consumers in these three states seeking damages against Kind LLC (“Kind”) for its alleged mislabeling of 39 varieties of snack bars as being “All Natural” and containing no GMOs, when they allegedly contained non-natural and/or genetically modified ingredients.  The case, captioned In re: KIND LLC “HEALTHY AND ALL NATURAL” LITIGATION, Case No. 15md2645, will now proceed on behalf of classes of persons who purchased Kind’s products in New York since April 17, 2009 and by persons who purchased Kind’s products in California and Florida since April 17, 2011.  A copy of the Court’s opinion certifying the classes can be read here.

While other food labeling class actions have been certified in the past (including in cases prosecuted by this Firm), Judge Pauley’s Kind opinion is notable for a number of reasons.

First, the Court found that despite nuances among California, New York and Florida consumer protection laws, they all contain the same three elements: (1) a deceptive act, (2) materiality, and (3) injury.  Given that all 39 varieties of Kind’s products contained the same basic alleged material misrepresentations, and Kind charged a premium for the products, the Court found it appropriate to certify classes under all three states’ laws even if the products’ labels varied in other ways.

Second, the Court found that disagreements by the parties’ experts on whether the alleged misrepresentations were material did not preclude class certification.  Rather, whether the labels are materially misleading was an issue that would be decided for the entire class.  Moreover, the Court found that product-specific labeling beyond the allegedly false All Natural and Non-GMO claims did not require proof as to individual understandings, but could be judged on an objective standard using generalized proof making class certification more appropriate than other mislabeling actions.

Third, the Court found that a class need not be defined as persons who have receipts to prove they purchased the snack bars at issue, for a class to be certified.  While noting that other courts have found receipts to be necessary to find that a class is sufficiently ascertainable, Judge Pauley held that “[i]mposing a receipt requirement would severely constrict consumer class actions where most consumers do not keep receipts because the purchase price is low and part of a minerun retail transaction,” and that requiring class members to have receipts would allow Kind and every other manufacturer and distributor or consumer goods to escape liability for their misconduct.

Fourth, the Court held that plaintiffs need not prove a price premium at the class certification stage, nor determine damages for a class to be certified.  Rather, it was sufficient for the plaintiffs’ expert to identify the type of analysis he could do to calculate damages; identify the data he would use for the analysis; and show that the data is available.  It was irrelevant that the plaintiffs’ expert was not in possession of the data he would use, so long as it was available and could be used as part of a damage model designed to determine the value of the All Natural and Non-GMO claims to consumers.

FDPK’s consumer protection lawyers have significant experience in making sure manufacturers making untruthful or misleading claims on food are held accountable. Please contact us at [email protected] if you are interested in learning more or if you recently purchased a food product that you believe may be labeled with deceptive or untruthful claims.

Posted by R. Samuel Stein.

In a recent decision in Gregg v. Ameriprise Financial, Inc., the Pennsylvania Supreme Court held that the unlawful deceptive conduct provision in the “catch-all” section of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (UTPCPL) imposes liability on commercial vendors who engage in conduct that has the potential to deceive and which creates a likelihood of confusion or misunderstanding without having to prove the vendor intended to deceive the consumer. The is a favorable decision for consumers across the Commonwealth.

The Gregg case concerned a married couple who entrusted a financial advisor to invest their money in a life insurance policy and retirement accounts, only to find out that the funds were diverted to an investment which increased the financial advisor’s commission with little benefit to the Greggs. The PA Supreme Court determined that the plaintiffs could bring an action for deceptive conduct under the UTPCPL without proving that the advisor intended to deceive the couple.

Section 201-2(4) of the UTPCPL outlines 20 distinct unlawful methods of unfair competition, deceptive acts and practices. In 1996, the PA General Assembly modified the “catch-all” provision to bar not only fraudulent acts, but also deceptive conduct.  ”Deceptive conduct,” the Court ruled, imposes a strict-liability standard for consumers to bring an action against companies engaging in deceptive conduct, similar to the Federal Trade Commission Act (FTCA) and other similar state laws which also carry no state-of-mind requirement for deception.

“The plain language of the current statute imposes liability on commercial vendors who engage in conduct that has the potential to deceive and which creates a likelihood of confusion or misunderstanding. That is all that is required. The legislature required neither carelessness nor intent when a cause of action is premised upon deceptive conduct,” Justice Wecht wrote for the 4-3 majority.

The Pennsylvania Association of Justice, The National Consumer Law Center, National Association of Consumer Advocates, Community Legal Services, and others filed briefs in support of the married couple and this interpretation of Pennsylvania law.

Feinstein Doyle Payne & Kravec has decades of experience representing consumers in Pennsylvania and elsewhere against large companies for deceptive conduct and unfair trade practices in life insurance matters and others.   Contact us at [email protected] if you have concerns regarding deceptive practices in the sale of your life insurance policies.

On February 4, the US House Subcommittee on Economic and Consumer Policy under the Committee on Oversight and Reform published an alarming report that some of the nation’s most popular baby food brands contain unusually high amounts of toxic metals –arsenic, lead, cadmium and mercury – which exceed even the companies’ own internal standards.

These metals are found naturally in the soil, and as a result, end up in our produce because they absorb them in the soil as they grow. According to the report, even low levels of metal exposure can cause serious and often irreversible damage to infants, such as stunts to brain development and elevated risks of cancer.

Despite the harm that could be caused by toxic metals, they are virtually unregulated in baby foods. In fact, the only regulation setting a standard is for infant rice cereal – setting a maximum of 100-ppb (parts per billion) of inorganic arsenic. For comparison, the FDA standard for lead in bottled water is 5-ppb. The non-profit Healthy Babies Bright Futures, which issued a report in 2019 finding 95 percent of baby foods tested contained these toxic chemicals, supports regulations establishing limits closer to 3-ppb inorganic arsenic and 1-ppb lead.

Without regulations establishing the limits of toxic metals in baby food, manufacturers have been left to self-regulation. Unfortunately, according to the report, many aren’t testing for toxic metals, and those that do are selling products that exceed their own internal standards. Indeed, the test results of baby foods and their ingredients eclipse their company’s standards for many products sold to unsuspecting parents: including results up to 91 times the arsenic level, up to 177 times the lead level, up to 69 times the cadmium level, and up to 5 times the mercury level of those companies’ internal “limits.”

Some of the recommendations the House report has sent to the FDA include:

• Mandatory testing on finished baby food products
• Required disclosure of metal contents on baby food labels
• Maximum levels set for toxic heavy metals permitted in baby foods
• Recommendations so that parents and manufacturers receive information needed to make this safer.

The report also calls on manufacturers to voluntarily find substitutes for ingredients that are high in toxic heavy metals or phase out products that do.

“Baby food manufacturers hold a special position of public trust. Consumers believe that they would not sell products that are unsafe. Consumers also believe that the federal government would not knowingly permit the sale of unsafe baby food,” the report states.

The presence of lead, arsenic, mercury and cadmium in the food we feed our children can be scary and shocking. FDPK’s consumer protection lawyers have experience in making sure manufacturers making untruthful or misleading claims are held accountable.

Let us know at [email protected] if you want to find out if any of the products you use that claim to be “non-toxic” really are.  It could be a food, household cleaner or any other product you use.

Posted by Erin Holliday.

CBD Products.

Hard-working Americans Across the Country Are Losing Their Jobs After Using CBD

CBD, or cannabidiol, is a chemical found in hemp that is being sold in a variety of forms.  Those products include pills, oils, creams and tinctures, and are promoted as having near-miraculous health benefits for a myriad of conditions.[1] Therefore, although cannabidiol is chemically similar to THC, the substance in marijuana that gets you high, CBD does not have the same psychoactive effects of THC.

Prior to 2019, all extracts of hemp, including CBD and THC, fell within the definition of marijuana and were illegal drugs under Federal Law.[2]   After Congress passed the Agricultural Improvement Act of 2018 (a/k/a 2018 Farm Bill), hemp-derived products that contain less than 0.3% THC were legalized, allowing them to be manufactured and sold nationwide.  However, despite claims that hemp-derived oils and CBD products sold legally contain less than 0.3% THC or may be “THC-Free,” many people taking CBD Products are failing their employer’s random drug tests.  Employees who have been reprimanded or terminated have been the subject of many news articles nationwide [3], and lawsuits have been filed against the companies who made the CBD for this and other reasons [4].

FDPK represents people who have been harmed after taking CBD products.  If you failed your employer or former’s employer’s drug test after using CBD Products, contact us for a confidential, free evaluation of any potential lawsuit you may have.  Ed Feinstein or Wyatt Lison would be pleased to speak with you.

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[1]  The New York Times. October 16, 2019.  “What Are the Benefits of  CBD?” [https://www.nytimes.com/2019/10/16/style/self-care/cbd-oil-benefits.html]

[2] U.S. Drug Enforcement Administration.  “Clarification of the New Drug Code (7350) for Marijuana Extract”

[3]  Including:

• Arizona:  ABC Action News.  June 9, 2019. “Can Using CBD Products Cost Someone Their Job?“
• Illinois:  ABC 13 Eyewitness News. September 26, 2019 “School Bus Driver Warns of CBD Use After Failing Drug Test, Losing Job”
• Ohio:  WLWT5 News.  November 7, 2019. “Dayton Police Officer Dies Days After Being Shot While Serving Warrant”
• Texas: Fort Worth Star-Telegram.  September 19, 2019.  “Don’t Get Lost in the Weeds.  Using Legal CBD Products in Texas Could Cost You a Job”
• Utah:  2KUTV News.  GetGephardt Investigations.  November 6, 2019.  “Fired for CBD:  Employees Have Little Recourse If They’re Sacked for a Positive Drug Test”

[4]  Including:

• Just Brands USA.  Go By Truck Global News.  November 6, 2019. “Trucker Sues CBD Gummy Company After Losing His Job”
• Diamond CBD.  Cannabis Network News.  October 15, 2019.  “Diamond CBD Sued in Class-Action Lawsuit for Mislabeled CBD Products”
• Hemp Bombs. The National Law Review. September 30, 2019. “CBD Industry Beware: The False Labeling Class Action has Arrived”
• Dixie X. Transport Topics. December 20, 2018.  “Fired Truck Driver Sues Cannabidiol Company After Using Product”