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FDA Unkind to KIND Bars

KIND

Go to your local grocery store and you will likely find KIND bars in the health food section. KIND has marketed their bars as being a great health-food snack for consumers. However, the FDA recently issued a scathing letter to KIND disputing many of its health claims.

KIND Products Cited by FDA

On March 17, 2015, the FDA sent a warning letter to Daniel Lubetsky, the CEO of Kind, LLC, the maker of the popular Whole Foods staple Kind Bar. In August 2014, the FDA reviewed the labels for several of the brand’s products, including:

  • Kind Fruit & Nut Almond & Apricot
  • Kind Fruit & Nut Almond & Coconut
  • Kind Plus Peanut Butter Dark Chocolate + Protein
  • And Kind Plus Dark Chocolate Cherry Cashew + Antioxidants

The FDA determined that the labels were in violation of 21 U.S.C. § 343.

“Healthy” According to the FDA

Specifically, the FDA found that the KIND bar labels were misbranded under section 403(r)(1)(A) of the Federal Food, Drug, and Cosmetic Act because they contained nutrient content claims that the products did not meet. Under section 403(r)(1)(A), a product cannot bear statements suggesting that it may be useful in maintain a healthy diet if that is not actually true. That is exactly what KIND said their bars would do. KIND made claims that the nut bars were “healthy and tasty, convenient and wholesome.” The company also said the bars are a “good source of fiber”, with “no trans fat”, among many other health claims. The FDA determined that “none of the products . . . meet the requirements for use of the nutrient content claim ‘healthy’ that are set forth in 21 C.F.R. 101.65(d)(2).”

Under FDA regulation 21 C.F.R. 101.65(d)(2), a product maker can use the term “healthy” if the food is marketed as having “low saturated fat” and meets certain requirements. The FDA found that the KIND bars failed to meet those requirements because the KIND bars exceed the maximum of 15% of calories from saturated fat to meet the “low saturated fat” definition. The FDA further concluded that the KIND bars failed to prove several other claims made on the label related to vitamin content, antioxidant content, and fiber content. KIND also made the claim that their bars do not contain trans fat. The FDA found that this claim was misleading because “trans-fat(s) act[] in a similar manner to saturated fat with respect to raising LDL cholesterol.” Therefore, the claim that the bars have no trans fat may be misleading as it isn’t an important characteristic of the food. The FDA “intend(s) to consider the exercise of [its] enforcement discretion” for KIND’s claim that their bars do not contain trans fat because it may be misleading.

KIND Responds

Recently, KIND responded with a letter to its customers on its website. KIND says that it is not changing the recipe for its products, but will simply change the labels to comply with FDA regulations. KIND also pointed out that nuts do contain fat, but there is recent research demonstrating that the unsaturated fat in nuts may be healthy for you. KIND makes a decent point that there are other, natural foods that would not meet the FDA’s definition of “healthy”, like avocados, salmon and eggs. Most would consider these natural foods beneficial to one’s health.

Not the First Time

KIND had previously defeated a class action relating to its Vanilla Blueberry Clusters. The plaintiff alleged that the company marketed the product as being sugar free, but it actually had evaporated cane juice, which is a form of sugar. A federal court in Illinois ruled that the plaintiff failed to prove how KIND’s claim affected the plaintiff’s decision to purchase the product. That being said, another court recently certified a class action against ConAgra alleging the company falsely claimed that its Wesson corn oil was “100% natural” when it was made with genetically modified organisms.

It remains to be seen whether KIND will be subject to any class action case for the claims that are the subject of the FDA’s recent warning letter. Class action lawsuits are notoriously difficult to certify and require counsel who is experienced and knowledge in bringing class actions.