209 F. Supp. 3d 689
S.D.N.Y.2016Background
- Plaintiffs filed a putative nationwide class action (with NY, CA, IL, FL subclasses) alleging KIND misled consumers by labeling certain snack products “Healthy,” “All Natural,” and/or “Non GMO.”
- FDA issued a March 2015 warning letter challenging KIND’s “healthy and tasty” language as an implied nutrient-content claim under 21 C.F.R. § 101.65; FDA later withdrew the objection in April 2016 and announced reconsideration of nutrient-content rules.
- Plaintiffs voluntarily dismissed their “healthy” claims after the FDA withdrew objections; the court dismissed claims of three named plaintiffs who only alleged reliance on “healthy” representations, and dismissed the Illinois and Florida subclass statutory claims tied to those plaintiffs.
- Plaintiffs allege “all natural” is false because products contain processed or synthetic ingredients (e.g., soy protein isolate, glucose syrup, canola oil) and allege some products tested positive for GMOs; FDA opened a rulemaking docket (Nov. 2015) soliciting comments on the use of “natural.”
- KIND moved to dismiss or, alternatively, to stay the “all natural” claims under the primary jurisdiction doctrine and argued any separate “non-GMO” claim is not adequately pleaded.
- The Court stayed the “all natural” claims pending the FDA’s rulemaking and dismissed without prejudice any standalone “non GMO” claims (granting plaintiffs leave to amend).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "healthy" claims can proceed | Plaintiffs relied on KIND’s "healthy" labeling | KIND argued FDA guidance casts doubt and FDA revoked objection | Plaintiffs voluntarily dismissed "healthy" claims; related named-plaintiff and subclass claims dismissed |
| Whether to stay "all natural" claims under primary jurisdiction | Plaintiffs: reasonable-consumer deception questions suited to courts | KIND: FDA is best-equipped; FDA is actively rulemaking on "natural" | Court stayed "all natural" claims pending FDA rulemaking (primary jurisdiction applies) |
| Whether a standalone "non-GMO" claim is plausible | Plaintiffs: testing and industry GMO prevalence support claim | KIND: Plaintiffs lack particularized allegations of reliance, product-specific GMO evidence | Court dismissed "non-GMO" claims without prejudice for failure to plead reliance, product specificity; leave to amend |
| Whether primary jurisdiction factors favor a stay | Plaintiffs: courts can adjudicate reasonable-consumer issues; FDA guidance may be non-dispositive | KIND: FDA expertise, ongoing rulemaking, risk of inconsistent rulings | Court found FDA discretion, risk of inconsistent rulings, and prior FDA proceedings weigh for stay; conventional-experience factor neutral |
Key Cases Cited
- Astiana v. Hain Celestial Grp., 783 F.3d 753 (9th Cir. 2015) (FDA expertise supports invoking primary jurisdiction for "natural" labeling disputes)
- Ellis v. Tribune Television Co., 443 F.3d 71 (2d Cir. 2006) (articulates four-factor primary jurisdiction test)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard: complaint must state a plausible claim)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility requirement and rejection of mere labels-and-conclusions pleading)