When it comes to consumer class action litigation, what type of evidence is required to show that labeling nutrition bars as "all natural" violates false advertising and consumer protection laws? According to the plaintiffs in a class action case against the manufacturer of KIND bars, it would be enough to show that some ingredients are man-made, even if those ingredients could also be obtained with minimal processing from plants. Not so, held the U.S. Court of Appeals for the Second Circuit. Rather, the showing required to survive summary judgment was that the hypothetical reasonable consumer acting reasonably under the circumstances would likely be misled. In the absence of admissible survey evidence creating a genuine issue of fact under this standard, such claims are subject to dismissal. In re: Kind LLC "Healthy and All Natural" Litig., No. 22-2684-cv (Second Circuit May 2, 2024).
After several years of litigation and consolidation of numerous cases before the U.S. District Court for the Southern District of New York, the issue in this case boiled down to the plaintiffs' claim that the phrase "all natural" on the labels of 39 KIND products was deceptive and misleading. The class action plaintiffs alleged that under five different definitions of "all natural," 11 ingredients contained in various KIND bars – soy lecithin, soy protein isolate, citrus pectin, glucose syrup/"non-GMO" glucose, vegetable glycerine, palm kernel oil, canola oil, ascorbic acid, vitamin A acetate, d-alpha tocopheryl acetate/vitamin E and annatto – rendered them non-natural. In opposition to the defendant's motion for summary judgment, the class action plaintiffs came forward with the results of a "consumer perceptions" survey and opinions of a chemist. Each was excluded by the district court as inadmissible under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). See In re: Kind "Healthy & all Natural" Litig., 627 F. Supp. 3d 269, 291-94 (S.D.N.Y. 2022).
On appeal, the class action plaintiffs argued that their chemist's opinion should not have been excluded because his characterization of the ingredients at issue as "artificial" or "synthetic" as a matter of chemistry was sufficient to show that the "all natural" label was deceptive even without the benefit of their survey evidence. The Second Circuit rejected this argument, holding that the district court did not err in excluding the chemist's opinions because they were not probative of the way in which the hypothetical "reasonable consumer" would understand the phrase "all natural."
With their chemist's opinion excluded, the class action plaintiffs were left with the results of their consumer perception survey, but their ability to rely on these results was defeated by the Second Circuit's holding that the district court had not erred in excluding them as well, in part because it found that the survey questions were leading. One question, for example, asked the participants if they would expect that a product labeled "all natural" is made "using these chemicals: phosphoric acid, hexane, potassium hydroxide, [or] ascorbic acid," without describing or defining these "chemicals."
An interesting aspect of this case was the class action plaintiffs' effort to rely on dictionary or definitions of "natural" as a proxy for what the hypothetical reasonable customer would expect from a product labeled "all natural." At an earlier stage of proceedings, the plaintiffs obtained class certification in part by use of such a definition (i.e., "natural" was defined as "existing in or caused by nature; not made or caused by humankind"). On appeal, the plaintiffs argued that "an ordinary dictionary definition of the word 'natural'" was enough to show the hypothetical reasonable customer's expectations. If this argument had been accepted, it would have eased the ability of class action plaintiffs in cases of this type to get past summary judgment, because it would potentially avoid the need for consumer surveys, which can be expensive and time-consuming to run – and can yield unpredictable results – when properly designed and carefully conducted in a reliable and unbiased manner.
But as explained by the Second Circuit, reliance on dictionary definitions is unlikely to suffice when the governing legal standard is the expectation of the reasonable consumer, who does not go shopping with general purpose or chemical dictionaries and will have expectations that are context dependent. Referring to the definition quoted above ("existing in or caused by nature; not made or caused by humankind"), the court held that:
[T]his definition is not useful when applied to a mass-produced snack bar wrapped in plastic. Such a bar is clearly made by humans. It gets plaintiffs no closer to demonstrating what a reasonable consumer would expect of a KIND product bearing the "All Natural" label.
Slip op. at 29
It then summed up the plaintiffs' failure to defeat the defendant's motion for summary judgment:
[A]t summary judgment, where KIND has pointed to a lack of evidence on an essential element of plaintiffs' claims, it is plaintiffs' burden to present admissible evidence that a reasonable consumer acting reasonably would be deceived by the "All Natural" claim on KIND products. Without evidence of a reasonable consumer's understanding of "All Natural," plaintiffs cannot succeed on their claims at summary judgment.
Id. at 30 (citation omitted)
Reflecting the pace at which some class action cases play out, this decision came after nine years of proceedings.
