Kind-of Healthy

The word “healthy” on a food product can have a magnetizing effect on consumers, especially in a metropolis as health-conscious as New York City. Yet, the alluring label of “healthy” should not be used lightly by food distributors. The KIND company, a successful New York City-based snack-bar distributor with seven product lines, has recently learned this lesson the hard way.

In March of 2015, the Food and Drug Administration (the “FDA”) issued a cautionary letter to KIND expressing concerns over the way that KIND has described and advertised its wholesome products. Among the challenged description was the label, “healthy,” which the FDA alleged was a mischaracterization of KIND’s products. The FDA informed Kind that none of KIND’s products are, in fact, “healthy,” as the term is defined by the FDA. Specifically, the FDA claimed that the KIND bars are too heavily processed, and contain too many calories and too much saturated fat to be deserving of that prized “healthy” label. Ouch.

After catching wind of this FDA letter, Plaintiffs’ attorneys have been quick to seize their opportunity. Indeed, Plaintiff class action attorneys frequently use FDA warnings letters as a platform from which to launch class-action attacks on targeted companies. In this case, several class action lawsuits have been already filed against KIND, three of which were filed in California federal court a mere 10 days after the FDA’s warning letter was released. Plaintiffs allege that the KIND’s use of “All Natural” and “Healthy” labels, among others, amounted to false and misleading advertising that fraudulently compelled purchases. Interestingly, no claim has alleged that the KIND bars were actually harmful to consumers; it is only argued that the word “healthy” was not an accurate descriptor.

Though KIND declined to comment directly on the pending litigation, Joe Cohen, the SVP of Communications at KIND, informed the press that the company is “currently working with counsel” and is continuing to “rely on a team of operations and regulatory professionals” to review its labels for accuracy.

The lawsuits will inevitably strain the reputation of the KIND brand, regardless of their outcome. However, these lawsuits have raised a number of bigger questions, including whether it is even appropriate to have federal agencies assign specific legal definitions to common words like “healthy,” or “natural.” According to Ted Craig, an experienced consumer class-action attorney who specializes in these types of lawsuits, the FDA is being “overly zealous” in its scrutinizing approach towards “healthy” labels. Craig added that the FDA has “bigger fish to fry.”

Whatever their merit, the lawsuits against KIND serve as a warning to companies hoping to advertise the “natural” or “healthy” nature of their foods. Under the law, the word “healthy” has become more than just an adjective; it has become a culinary achievement. One that must be earned.