O'Brien v. Kind, LLC
Filing
31
MEMORANDUM AND ORDER in case 1:15-cv-03699-NRB; denying as moot (233) Motion for Local Rule 37.2 Conference; denying as moot (235) Motion for Local Rule 37.2 Conference; granting (237) Motion to Preclude; granting (240) Motion to Preclude; gr anting (241) Motion to Preclude; granting (244) Motion to Preclude; granting (247) Motion for Summary Judgment; granting (248) Motion re: (233 in 1:15-md-02645-NRB) LETTER MOTION for Local Rule 37.2 Conference re: requesting pre-motion c onference with the Court regarding Plaintiffs' motion to compel addressed to Judge Naomi Reice Buchwald from Tina Wolfson dated 12/13/2021., (235 in 1:15-md-02645-NRB) LETTER MOTION for Local Rule 37.2 Conference re requesting a pre-m otion conference relating to KIND, LLC's anticipated motion to strike reply expert reports addressed to Judge Naomi Reice Buchwald from Dale J. Giali dated December 16, 202, (237 in 1:15-md-02645-NRB, 186 in 1:15-mc-02645-NRB) MOTION t o Preclude Expert Report and Testimony of Dr. Michael Dennis, Ph.D., (240 in 1:15-md-02645-NRB, 189 in 1:15-mc-02645-NRB) MOTION to Preclude Expert Report and Testimony of Dr. Anton Toutov, Ph.D.., (241 in 1:15-md-02645-NRB, 190 in 1:15-mc-02645-NRB) AMENDED MOTION to Preclude Testimony and Expert Report of Dr. J. Michael Dennis, Ph.D.., (244 in 1:15-md-02645-NRB, 193 in 1:15-mc-02645-NRB) AMENDED MOTION to Preclude Testimony and Expert Report of Dr. Anton To utov, Ph.D.., (247 in 1:15-md-02645-NRB) MOTION for Summary Judgment ., (248 in 1:15-md-02645-NRB, 196 in 1:15-mc-02645-NRB) MOTION to Decertify the Classes ., (254 in 1:15-md-02645-NRB, 203 in 1:15-mc-02645-NRB) MOTIO N to Preclude Testimony and Expert Report of Dr. Stephen Hamilton, Ph.D.., (269 in 1:15-md-02645-NRB, 217 in 1:15-mc-02645-NRB) MOTION to Preclude Expert Testimony and Report of Dr. Catherine Adams Hutt, Ph.D.., (275 in 1:15-md-0 2645-NRB, 223 in 1:15-mc-02645-NRB) MOTION to Preclude Testimony and Report of Dr. Ran Kivetz, Ph.D.., (157 in 1:15-mc-02645-NRB, 157 in 1:15-mc-02645-NRB) CONSENT LETTER MOTION for Extension of Time to file Plaintiffs' Opposit ion to Defendant's Motion to Strike addressed to Judge William H. Pauley, III from Todd S. Garber dated March 16, 2020. LETTER MOTION for Leave to File Excess Pages for Plaintiffs' Reply re Motion for Class Certification addr essed to Judge William H. Pauley, III from Todd S. Garber dated March 16, 2020., (159 in 1:15-mc-02645-NRB) LETTER MOTION for Extension of Time to file Plaintiffs' Reply re Class Certification and Opposition to Defendant's Motion to Strike due to COVID-19 addressed to Judge William H. Pauley, III from Todd S. Garber dated March 18, 2020., (199 in 1:15-mc-02645-NRB) MOTION for Summary Judgment ., (252 in 1:15-mc-02645-NRB) LETTER MOTION to Seal (i) Reply In Support Of Motion To Exclude Expert Report And Testimony Of Dr. Ran Kivetz, Ph.D; and (ii) Reply In Support Of Motion To Exclude Expert Report And Testimony Of Dr. Catherine Adams Hutt, Ph.D. addressed to Ju ; denying as moot (254) Motion to P reclude; denying as moot (269) Motion to Preclude; denying as moot (275) Motion to Preclude in case 1:15-md-02645-NRB; denying as moot (157) Motion for Extension of Time; denying as moot (157) Motion for Leave to File Excess Pages; denying as m oot (159) Motion for Extension of Time; granting (186) Motion to Preclude; granting (189) Motion to Preclude; granting (190) Motion to Preclude; granting (193) Motion to Preclude; granting (196) Motion re: (233 in 1:15-md-02645-NRB) LETT ER MOTION for Local Rule 37.2 Conference re: requesting pre-motion conference with the Court regarding Plaintiffs' motion to compel addressed to Judge Naomi Reice Buchwald from Tina Wolfson dated 12/13/2021., (235 in 1:15-md-02645-NRB) LETTER MOTION for Local Rule 37.2 Conference re requesting a pre-motion conference relating to KIND, LLC's anticipated motion to strike reply expert reports addressed to Judge Naomi Reice Buchwald from Dale J. Giali dated December 16, 202, (237 in 1:15-md-02645-NRB, 186 in 1:15-mc-02645-NRB) MOTION to Preclude Expert Report and Testimony of Dr. Michael Dennis, Ph.D., (240 in 1:15-md-02645-NRB, 189 in 1:15-mc-02645-NRB) MOTION to Preclude Expert Report and Testi mony of Dr. Anton Toutov, Ph.D.., (241 in 1:15-md-02645-NRB, 190 in 1:15-mc-02645-NRB) AMENDED MOTION to Preclude Testimony and Expert Report of Dr. J. Michael Dennis, Ph.D.., (244 in 1:15-md-02645-NRB, 193 in 1:15-mc-02645-NRB) AMEND ED MOTION to Preclude Testimony and Expert Report of Dr. Anton Toutov, Ph.D.., (247 in 1:15-md-02645-NRB) MOTION for Summary Judgment ., (248 in 1:15-md-02645-NRB, 196 in 1:15-mc-02645-NRB) MOTION to Decertify the Classes ., (254 in 1:15-md-02645-NRB, 203 in 1:15-mc-02645-NRB) MOTION to Preclude Testimony and Expert Report of Dr. Stephen Hamilton, Ph.D.., (269 in 1:15-md-02645-NRB, 217 in 1:15-mc-02645-NRB) MOTION to Preclude Expert Testimon y and Report of Dr. Catherine Adams Hutt, Ph.D.., (275 in 1:15-md-02645-NRB, 223 in 1:15-mc-02645-NRB) MOTION to Preclude Testimony and Report of Dr. Ran Kivetz, Ph.D.., (157 in 1:15-mc-02645-NRB, 157 in 1:15-mc-02645-NRB) CONSENT L ETTER MOTION for Extension of Time to file Plaintiffs' Opposition to Defendant's Motion to Strike addressed to Judge William H. Pauley, III from Todd S. Garber dated March 16, 2020. LETTER MOTION for Leave to File Excess Pages for Plaintiffs' Reply re Motion for Class Certification addressed to Judge William H. Pauley, III from Todd S. Garber dated March 16, 2020., (159 in 1:15-mc-02645-NRB) LETTER MOTION for Extension of Time to file Plaintiffs' Rep ly re Class Certification and Opposition to Defendant's Motion to Strike due to COVID-19 addressed to Judge William H. Pauley, III from Todd S. Garber dated March 18, 2020., (199 in 1:15-mc-02645-NRB) MOTION for Summary Judgment ., (252 in 1:15-mc-02645-NRB) LETTER MOTION to Seal (i) Reply In Support Of Motion To Exclude Expert Report And Testimony Of Dr. Ran Kivetz, Ph.D; and (ii) Reply In Support Of Motion To Exclude Expert Report And Testimony Of Dr. Catherine Adam s Hutt, Ph.D.; granting (199) Motion for Summary Judgment; denying as moot (203) Motion to Preclude; denying as moot (217) Motion to Preclude; denying as moot (223) Motion to Preclude; denying as moot (252) Motion to Seal in case 1:15-mc-026 45-NRB. For the foregoing reasons, defendant's motion for summary judgment is granted, defendant's motions to disqualify the opinions of Dr. Dennis and Dr. Toutov are granted, defendant's motion to decertify the classes is granted, a nd the remaining motions are denied as moot. The Clerk of Court is respectfully directed to terminate the pending motions and close the case. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 9/9/2022) Filed In Associated Cases: 1:15-md-02645-NRB et al. (mml) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------X
IN RE:
MEMORANDUM AND ORDER
KIND LLC “HEALTHY AND ALL NATURAL”
LITIGATION
15-MD-2645 (NRB)
15-MC-2645 (NRB)
This Document Relates to All Actions
---------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
This case arises out of a challenge to the labelling on
certain
snacks
individuals
sold
who
by
KIND
purchased
LLC
KIND
(“KIND”).
products
Plaintiffs
displaying
an
are
“All
Natural/Non GMO” label, who allege that the label was deceptive or
misleading.1
This
label
was
discontinued
by
2017.
While
plaintiffs initially challenged numerous claims that appeared on
the labels of KIND products, the only issue remaining in this
litigation is whether certain KIND products are properly described
as “All Natural.”
Plaintiffs seek damages on behalf of themselves
and three classes, pursuant to New York’s General Business Law
(“GBL”) §§ 349 and 350; California’s Consumers Legal Remedies Act
(“CLRA”), Cal. Civ. Code § 1750, et seq., Unfair Competition Law
(“UCL”), Cal. Bus. & Prof. Code § 17200, et seq., and False
Advertising Law (“FAL”), Cal. Bus. & Prof. Code § 17500, et seq.;
and Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”)
1
“GMO” is an abbreviation for “genetically modified organism.”
1
Fla. Sta. § 501.201, et seq.; and various common law claims.
Presently before the Court are: (1) defendant’s motion for summary
judgment; (2) defendant’s motion to decertify the classes; and (3)
Daubert motions from both plaintiffs and defendant to disqualify
each of the five experts in this case, who testify in support of
and opposition to the motion for summary judgment.2
For the
following reasons, defendant’s motion for summary judgment is
granted, defendant’s motions to disqualify the opinions of Dr.
Dennis and Dr. Toutov are granted, defendant’s motion to decertify
the classes is granted, and the remaining motions are denied as
moot.3
Specifically, defendant challenges plaintiffs’ experts, Dr. J. Michael
Dennis, who opines on a reasonable consumer’s understanding of “All Natural”
and whether the “All Natural” statement was material to consumers, ECF No. 241;
Dr. Anton Toutov, who opines on the naturalness of the ingredients in KIND
products, ECF No. 244; and Dr. Stephen Hamilton, who opines on whether consumers
were injured by the “All Natural” statement, ECF No. 254. Plaintiffs challenge
defendant’s experts Dr. Ran Kivetz, ECF No. 275, who opines in opposition to
Dr. Dennis’s and Dr. Hamilton’s reports, and Dr. Catherine Adams Hutt, ECF No.
269, who opines in opposition to Dr. Toutov’s report.
3
The parties also submitted briefing regarding whether this Court should
consider the supplemental declarations of plaintiffs’ experts Stephen Hamilton,
J. Michael Dennis, and Anton Toutov submitted in connection with the pending
motion for summary judgment. ECF Nos. 297, 303. Defendant contends that these
declarations contain new expert opinions from plaintiffs’ experts that were
undisclosed in discovery and should therefore be stricken.
ECF No. 297.
Plaintiffs contend that these declarations simply “reinforce” the opinions the
experts previously offered. ECF No. 303. The Court agrees with defendant, but
finds that, regardless of whether this Court considers the supplemental expert
declarations, the Court’s conclusions regarding the admissibility of the expert
opinions in this action and the merits are unchanged. As such, the issue is
moot.
2
2
I.
Background
A.
Procedural History
The present multidistrict litigation (“MDL”) has been pending
since 2015.
Food
and
Its history is entwined with certain actions of the
Drug
Administration
labelling statements.
(“FDA”)
regarding
particular
A brief overview of the history of this
action and the FDA action prior to the present motions is therefore
necessary.
1. The FDA Warning Letter and Lawsuit Commencement
In March 2015, the Food and Drug Administration (“FDA”) issued
a
“warning
letter”
triggered
by
the
following
“about
KIND”
statement that appeared on some KIND labels:
At KIND we do things differently and try to avoid
false compromises. Instead of “or” we say “and.”
Healthy and tasty, convenient and wholesome,
economically sustainable and socially impactful.
ECF No. 83 at 2.
Specifically, the FDA asserted that KIND’S
“healthy and tasty” language was an “implied nutrient content
claim” subject to regulations set forth in 21 C.F.R. § 101.65, and
that certain KIND products did not meet the FDA’s saturated fat
content requirements necessary to describe food as “healthy.”
No. 52, Ex. A at 1-2.4
ECF
In response, KIND argued that many
universally recognized healthy foods such as almonds, avocados, or
The FDA did not comment on KIND’s use of the phrase “All Natural.”
No. 52, Ex. A.
4
3
ECF
salmon
contain
saturated-fat
levels
prescribed by 21 C.F.R. § 101.65.
exceeding
the
ECF No. 83 at 2.
limits
Before any
further action from the FDA, numerous “copycat” private lawsuits
were filed, alleging that consumers were deceived by the “About
KIND” statement, which were later transferred into this MDL.
Id.
The initial complaints challenged representations displayed on the
packaging of the KIND products that claimed the products were “all
natural,” “healthy,” “+,” “plus,” and a “good source of fiber”
with “no trans fats,” arguing that the products contained little
nutritional value, high levels of saturated fat, and genetically
modified, synthetic, or other non-natural ingredients.
at
1-2.
These
cases
were
transferred
to
this
consolidated in an MDL before the late Judge Pauley.
ECF No. 1
District
and
Id.
2. The FDA Signals Imminent Rulemaking Regarding “All
Natural” Labeling and the Case Is Stayed
In November 2015, the FDA announced the “establishment of a
docket to receive information and comments on the use of the term
‘natural’ in the labeling of human food products, including foods
that are genetically engineered or contain ingredients produced
through the use of genetic engineering.” Use of the Term “Natural”
in the Labeling of Human Food Products; Request for Information
and Comments, 80 FR 69905-01, 2015 WL 6958210.
These proceedings
were based on applications from citizen petitions and “three
Federal
district
courts”
seeking
4
guidance
on
whether
certain
products “may be labeled as ‘Natural,’ ‘All Natural,” and/or ‘100%
Natural.’”
80 FR 69905-01, 2015 WL 6958210.
Following the FDA’s
announcement, KIND moved to dismiss the claims against it, or in
the alternative, to stay the action pending the FDA’s promulgation
of a rule addressing the word “natural” on labels.
65-66.
See ECF No.
It is somewhat ironic that the spark for the various
lawsuits flamed out when in April 2016 — after the briefing of
KIND’s first motion to dismiss in this action but prior to oral
argument on the motion — the FDA withdrew the objections to KIND
products outlined in its warning letter and conceded that its
“regulations concerning nutrient content claims are due for a
reevaluation in light of evolving nutrition research.”
73-5.
ECF No.
One month later, plaintiffs voluntarily dismissed their
“healthy” claims.
ECF No. 74.
Judge Pauley granted the stay
defendant requested, reasoning that the FDA seemed prepared to
address core issues in the case and a stay would reduce the risk
of inconsistent outcomes.
ECF No. 83 at 7-12.
Judge Pauley also
dismissed any “Non GMO” claim without prejudice, finding that the
plaintiffs had not properly pled a cause of action because they
had not alleged that any specific KIND products contained GMOs.5
Id. at 12-13.
Judge Pauley noted that it was not entirely clear from the complaint
whether plaintiffs’ intent was to file a standalone “Non GMO” claim.
ECF No.
83 at 13.
5
5
3. Plaintiffs Resurrect the “Non GMO” Claim
During the pendency of the stay, plaintiffs filed an amended
consolidated class action complaint.
ECF No. 84 (“ACC”).
alleged
who
in
part
that
plaintiffs,
resided
in
The ACC
New
York,
California, and Florida, had been deceived by the “All Natural/Non
GMO” claim on KIND packaging.
Id. ¶¶ 1, 7-10.
Defendant moved to
dismiss the “Non GMO” claim, ECF No. 100, arguing that plaintiffs
had still failed to state a claim, ECF No. 101.
the motion and moved to lift the stay.
Plaintiffs opposed
ECF No. 108.
Judge Pauley
denied the motion to dismiss, reasoning that the plaintiffs had
sufficiently pled their “Non GMO” claim by alleging that testing
revealed that certain KIND products contained GMOs and plaintiffs
relied on the “All Natural” and “Non GMO” representations on the
KIND packaging in purchasing the products.
ECF No. 125.
Judge
Pauley also denied plaintiffs’ motion to lift the stay and stayed
prosecution of the “Non GMO” claim until August 15, 2018, in
anticipation of the completion of the United States Department of
Agriculture’s
(“USDA’s”)
work
on
establishing
standard, which was expected on July 29, 2018.
a
national
GMO
Id. at 12.
4. The Stay Is Lifted and the Classes Are Certified
On August 15, 2018, following publication of the USDA’s nonGMO standard, plaintiffs again moved to lift the stay on both the
“Non GMO” and “All Natural” claims.
ECF No. 128.
This time, Judge
Pauley granted the motion, reasoning that there was no reason to
6
continue the stay on the “Non GMO” claims, and that it was prudent
to lift simultaneously the stay on the “All Natural” claims to
avoid piecemeal litigation.
ECF No. 140.
On January 17, 2020, plaintiffs moved to certify three Rule
23(b)(3)
damages
classes:
(1)
all
persons
who
purchased
the
Products in New York for their personal use and not for resale at
any time since April 17, 2009 (the “New York Class”); (2) all
persons who purchased the Products in California for their personal
use and not for resale at any time since April 17, 2011 (the
“California Class”); and (3) all persons who purchased KIND's
Products in Florida for their personal use and not for resale at
any time since April 17, 2011 (the “Florida Class”).
Plaintiffs
also
sought
certification
of
ECF No. 168.
injunctive
classes
pursuant to Rule 23(b)(2). On March 24, 2021, Judge Pauley granted
the motion to certify the New
York, California, and Florida
classes, but denied plaintiffs’ request to certify the injunctive
classes.
ECF No. 216.
After Judge Pauley’s death, the case was
transferred to this Court.
ECF No. 219.
Thereafter, the parties
completed discovery, and the instant motions were filed.
B.
Plaintiffs and the Remaining Claims6
As evident from the above history, the scope of the claims in
6
The following facts are principally drawn from the Rule 56.1 statement
submitted by defendant on January 21, 2022, ECF No. 251; plaintiffs’ response
and objections to the 56.1 statement filed on March 4, 2022, ECF No. 282; and
defendant’s subsequent response to the 56.1 statement, ECF No. 309 (collectively
“56.1”); as well as the exhibits to the declaration of Kerri Borders, ECF No.
7
this case has sharply contracted since the commencement of this
suit. Plaintiffs have abandoned all challenges to the KIND labels,
except
for
their
challenge
to
the
“All
Natural”
claim.
Specifically, they now only challenge the “All Natural” portion of
the “All Natural/Non GMO” statement that appeared on three of
KIND’s product lines:
KIND Core Bars (nut-based snack bars); KIND
Healthy Grain Bars (grain-based snack bars); and KIND Healthy Grain
Clusters (non-bar bags of granola).
plaintiffs
offered
five
definitions
56.1 ¶ 1.7
relating
In the ACC,
to
the
term
259 and the exhibits to the declaration of Tina Wolfson, ECF No. 286. Where the
Court relies on facts drawn from any of the 56.1 Statements, it has done so
because the record evidence supports the statements, no rule of evidence bars
admission, and the opposing party has not disputed the facts or has not done so
with citations to admissible evidence.
7
Specifically, plaintiffs challenge 39 KIND products. These are (1) Fruit
& Nut: Almond & Apricot; (2) Fruit & Nut: Almond & Coconut; (3) Fruit & Nut:
Almonds & Apricots in Yogurt; (4) Fruit & Nut: Apple Cinnamon Pecan; (5) Fruit
& Nut: Blueberry Vanilla Cashew; (6) Fruit & Nut: Dark Chocolate Almond &
Coconut; (7) Fruit & Nut: Fruit & Nut Delight; (8) Fruit & Nut: Fruit and Nuts
in Yogurt; (9) Fruit & Nut: Nut Delight; (10) Fruit & Nut: Peanut Butter and
Strawberry; (11) Nut & Spices: Caramel Almond and Sea Salt; (12) Nut & Spices:
Dark Chocolate Mocha Almond; (13) Nut & Spices: Dark Chocolate Chili Almond;
(14) Nut & Spices: Dark Chocolate Cinnamon Pecan; (15) Nut & Spices: Dark
Chocolate Nuts and Sea Salt; (16) Nut & Spices: Madagascar Vanilla Almond; (17)
Nut & Spices: Cashew and Ginger Spice; (18) Nut & Spices: Maple Glazed Pecan
and Sea Salt; (19) Nut & Spices: Honey Roasted Nuts & Sea Salt; (20) Plus:
Almond Walnut Macadamia with Peanuts + Protein; (21) Plus: Peanut Butter Dark
Chocolate + Protein; (22) Plus: Blueberry Pecan + Fiber; (23) Plus: Almond
Cashew With Flax + Omega 3; (24) Healthy Grains Bar: Dark Chocolate Chunk; (25)
Healthy Grains Bar: Peanut Butter Dark Chocolate; (26) Healthy Grains Bar: Maple
Pumpkin Seeds With Sea Salt; (27) Healthy Grains Bar: Oats and Honey With
Toasted Coconut; (28) Healthy Grains Bar: Vanilla Blueberry; (29) Healthy Grains
Clusters: Fruit & Nut Clusters; (30) Healthy Grains Clusters: Peanut Butter
Whole Grains Clusters; (31) Healthy Grains Clusters: Banana Nut Clusters; (32)
Healthy Grains Clusters: Cinnamon Oat Clusters With Flax Seeds; (33) Healthy
Grains Clusters: Maple Quinoa Clusters With Chia Seeds; (34) Healthy Grains
Clusters: Oats & Honey Clusters With Toasted Coconut; (35) Healthy Grains
Clusters: Raspberry Clusters With Chia Seeds; (36) Healthy Grains Clusters:
Vanilla Blueberry Clusters With Flax Seeds; (37) Plus: Dark Chocolate Cherry
Cashew + Antioxidants; (38) Plus: Pomegranate Blueberry Pistachio +
Antioxidants; and (39) Plus: Cranberry Almond + Antioxidants with Macadamia
Nuts (collectively the “KIND products” or the “Products.”) ACC ¶ 1.
8
“natural.”8
Id. ¶ 3.
KIND has discontinued the “All Natural/Non GMO” label.
¶ 6.9
Id.
KIND contends that this change began in 2014 on a rolling
basis, but plaintiffs state it is unclear how long it took for the
change to appear on products reaching stores, or when the “All
Natural” label ceased to appear on products sold to consumers.
Id. ¶ 6.
bars
Partial images of the packaging designs for KIND Core
depicting
the
challenged
statements
(left)
and
revised
statements (right) are below:10
8
Plaintiffs offer the New Oxford American Dictionary definition, (ACC ¶ 39
(“existing in or caused by nature; not made or caused by humankind”)); the FDA's
policy, see 58 C.F.R. §§ 2302, 2407, (ACC ¶ 41 (defining the outer boundaries
of the use of the term “natural” as “meaning that nothing artificial or synthetic
(including all color additives regardless of source) has been included in, or
has been added to, a food that would not normally be expected to be in the
food”)); the USDA's definition, (ACC ¶¶ 43–45 (“(1) the product does not contain
any artificial flavor or flavorings, color ingredient, or chemical preservatives
... or any other artificial or synthetic ingredient, and (2) the product and
its ingredients are not more than minimally processed” (alteration in
original))); and Congress's definition of synthetic, 7 U.S.C. § 6502(21)–(22),
(ACC ¶ 46 (“defin[ing] synthetic to mean a substance that is formulated or
manufactured by a chemical process or by a process that chemically changes a
substance extracted from naturally occurring plant, animal, or mineral sources,
except that such term shall not apply to substances created by naturally
occurring biological processes” (quotation marks omitted))).
9
It appears that by 2017, KIND had discontinued all labels that depicted
the “All Natural” claim.
ECF No. 181. In their briefing on the motion to
decertify the classes, plaintiffs do not dispute this end date. ECF No. 287.
Further, KIND’s 30(b)(6) fact witness, Elle Lanning, testified that “[t]o the
best of [her] knowledge [removal of the all natural label] would have happened
on a rolling basis from 2014 potential through 2015 or early 2016.” 56.1 ¶ 6
(quoting ECF No. 280-1 52:2-8).
10
It also appears that certain of the KIND products had the “Non GMO” label
replaced by a “No Genetically Engineered Ingredients.” ECF No. 216 at 22.
9
Id. ¶ 7.
Likewise, the challenged packaging for the KIND Plus
Cranberry Almond + Antioxidants bar, which also displayed the claim
and is emblematic of the packaging of KIND Plus Antioxidants bars,
is depicted below:
Id. ¶ 8.
Each of the plaintiffs purchased certain KIND products and
advances
a
different
representation.
understanding
of
the
“All
Natural”
We briefly detail their claims below:
Plaintiff Amanda Short is a resident of New York.
Id. ¶ 9.
Short alleges that between November 2012 and when she filed this
lawsuit in 2015, she purchased the Fruit & Nut Almond & Apricot
10
Core Bar, Dark Chocolate Cherry Cashew + Antioxidant Core Bars,
and Nuts & Spices Dark Chocolate Nuts & Sea Salt Core Bars.
Id.
¶ 10; ACC ¶ 7; ECF No. 259-3 (“Short Dep. Tr.”) 13:3-7. Short
testified that she believed that “natural” meant the Products were
made from whole nuts, fruits, and whole grains.
56.1 ¶ 12.
She
also testified that it was possible that consumers could have
different
understandings
meant
with
Plaintiff Sarah Thomas is also a resident of New York.
Id.
respect to the Products.
¶ 14.
about
what
“all
natural”
Id. ¶ 13.
Thomas claims that between January 2014 and when she became
involved in this lawsuit in 2015,
she weekly purchased
KIND
products, including Fruit & Nut Almond & Coconut Core Bars, Peanut
Butter Dark Chocolate + Protein Core Bars, Nuts & Spices Dark
Chocolate Nuts Chili Almond Core Bars, Nuts & Spices Cashew &
Ginger Spice Core Bars, and Nuts & Spices Dark Chocolate Nuts &
Sea Salt Core Bars.
Id. ¶ 15; ACC ¶ 8; ECF No. 259-2 (“Thomas
Dep. Tr.”) 14:6-17.
Thomas testified that her understanding of
“All Natural” was that “the ingredients were not synthetic, not
chemicals, [but were] natural ingredients.”
56.1 ¶ 17.
Thomas
also testified that it was possible that what a consumer thought
about a natural food product in 2011 might be different from what
a consumer thought about a natural food product in 2016.
18.
11
Id. ¶
Plaintiff Charity Bustamante is a resident of California.
Id. ¶ 19.
She claims that she purchased the Peanut Butter Dark
Chocolate + Protein Core Bars, Nuts & Spices Dark Chocolate Nuts
& Seal Salt Core Bars, KIND Cranberry Almond + Antioxidants with
Macadamia Nuts Core Bars, and Dark Chocolate Cherry Cashew +
Antioxidants Core Bars, but has “probably not” purchased a KIND
product since 2015.
Dep.
Tr.”)
she
ever
purchased KIND Healthy Grain Bars or Healthy Grain Clusters.
56.1
¶ 21.
59:8-10.
Id. ¶ 20; ACC ¶ 9; ECF No. 259-4 (“Bustamante
Bustamante
did
not
recall
if
Bustamante testified at her deposition that she purchased
KIND products because she understood them to be a healthy, nonGMO snack, and stopped when she realized that they might not be
healthy or non-GMO. Id. ¶ 22. She also testified at her deposition
that she thought that an all natural product would be one without
GMO ingredients and one that would be “good for” her.
Dep. Tr. 131:13-19.
Bustamante
In her declaration filed in support of class
certification, Bustamante stated that she said that she relied on
KIND’s representation that the products were “All Natural.”
56.1
¶ 22.
Plaintiff Elizabeth Livingston is a resident of Florida, who
alleges that she purchased the Fruit & Nut Almond & Coconut Core
Bars, Peanut Butter Dark Chocolate + Protein Core Bars, and Dark
Chocolate
Cherry
Cashew
+
Antioxidants
Core
Bars
during
the
“relevant time period,” but not since filing her lawsuit in 2015.
12
Id. ¶¶ 26-27; ACC ¶ 10; ECF No. 259-1 (“Livingston Dep. Tr.”) 9:1517. Livingston testified that she believed that a natural product
would be one that is “pull[ed] out of the Earth” or “dirt,” or
“untouched.”
Id. ¶ 29.
Livingston also testified that “[n]ot
everybody” agrees with her understanding of “All Natural,” and
that “other consumers who buy KIND bars may think all natural means
something different than [she does].”
II.
Id. ¶ 30.
Legal Standard
A. Standard for Summary Judgment
In order for summary judgment to be granted, the movant must
show “that there is no genuine dispute as to any material fact and
that the movant is entitled to judgment as a matter of law.”
R. Civ. P. 56(a).
Fed.
“[W]here the nonmovant will bear the ultimate
burden of proof at trial on an issue, the moving party’s burden
under Rule 56 will be satisfied if he can point to an absence of
evidence to support an essential element of the nonmoving party’s
claim.”
Brady v. Town of Colchester, 863 F.2d 205, 210-11 (2d.
Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)).
Unlike on a motion to dismiss or a motion for class certification,
where the allegations in the plaintiffs’ complaint are accepted as
true,
at
summary
judgment,
plaintiffs
must
demonstrate
“significant probative evidence,” which a reasonable factfinder
could rely on to decide in their favor.
Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986) (quotation marks and citation
13
omitted).
“The mere existence of a scintilla of evidence in
support of the plaintiff’s position will be insufficient[.]”
at 252.
Id.
Plaintiffs may not rely upon “conclusory statements or
mere allegations,” they must “go beyond the pleadings, and by . .
. affidavits, or by the depositions, answers to interrogatories,
and admissions on file, designate specific facts showing that there
is a genuine issue for trial.”
Davis v. New York, 316 F.3d 93,
100 (2d Cir. 2002) (quotation marks and citations omitted). “[A]
complete failure of proof concerning an essential element of the
nonmoving
party’s
immaterial.”
case
necessarily
renders
all
other
facts
Crawford v. Franklin Credit Mgmt., 758 F.3d 473, 486
(2d Cir. 2014) (quoting Celotex, 477 U.S. at 323) (alteration in
original).
B. Plaintiffs’ Claims
As noted earlier, plaintiffs bring statutory claims under New
York, California, and Florida law, as well as common law claims
for
breach
of
warranty,
misrepresentation.
unjust
enrichment,
and
negligent
However, regardless of the claim asserted, as
the below summary of the claims demonstrates, there is substantial
overlap between the elements of the claims. To prevail, plaintiffs
must demonstrate: (1) a deceptive act; (2) materiality; and (3)
injury.
14
1.
New York Statutory Claims
The General Business Law (“GBL”) provides that “[d]eceptive
acts or practices in the conduct of any business, trade or commerce
or in the furnishing of any service in this state are hereby
declared unlawful.”
N.Y. Gen. Bus. L. § 349.
To establish a prima
facie case under GBL §§ 349 or 350, “a plaintiff must demonstrate
that (1) the defendant's deceptive acts were directed at consumers,
(2) the acts are misleading in a material way, and (3) the
plaintiff has been injured as a result.”
230 F.3d 518, 521-22 (2d Cir. 2000).
Maurizio v. Goldsmith,
Materiality under §§ 349 and
350 of the GBL is an objective inquiry; a deceptive act is defined
as one “likely to mislead a reasonable consumer acting reasonably
under the circumstances.” Id.
2. The California Statutory Claims
Claims brought under
(“UCL”),
False
California’s
Advertising
Law
Unfair Competition Law
(“FAL”),
and
Consumer
Legal
Remedies Act (“CLRA”) “are governed by the ‘reasonable consumer’
test.”
Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir.
2008).
“Under the reasonable consumer standard, [plaintiffs] must
show that members of the public are likely to be deceived.”
(quotation marks omitted).
Id.
Relief under the UCL, FAL, and CLRA is
available without individualized proof of “reliance and injury, so
long as the named plaintiffs demonstrate injury and causation.”
Guido v. L’Oreal, USA, Inc., 284 F.R.D. 468, 482 (C.D. Cal. 2012).
15
“A presumption, or at least an inference, of reliance arises under
the
UCL
and
FAL
whenever
there
misrepresentation was material.”
is
a
showing
that
a
McCrary v. Elations Co., 2014 WL
1779243, at *14 (C.D. Cal. Jan. 13, 2014) (alteration omitted).
3.
The Florida Statutory Claims
Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”)
employs a similar framework as New York and California for false
and deceptive advertising claims.
“A claim under FDUTPA has three
elements: (1) a deceptive or unfair practice; (2) causation; and
(3) actual damages.”
Siever v. BWGaskets, Inc., 669 F. Supp. 2d
1286, 1292 (M.D. Fla. 2009).
which
can
be
“objectively
FDUTPA employs a “hybrid standard,”
established
subjectively established as to context.”
as
to
mindset
but
In re Motions to Certify
Classes Against Court Reporting Firms for Charges Relating to Word
Indices, 715 F. Supp. 2d 1265, 1282 (S.D. Fla. 2010), aff’d sub
nom. Webber v. Esquire Deposition Servs., LLC, 439 F. App’x 849,
851 (11th Cir. 2011).
To prevail on a claim, the plaintiffs must
show that a reasonable consumer would have been deceived.
See
Davis v. Powertel, Inc., 776 So.2d 971, 974 (Fla. Dist. Ct. App.
2000) (“[T]he question is not whether the plaintiff actually relied
on the alleged deceptive trade practice, but whether the practice
was likely to deceive a consumer acting reasonably in the same
circumstances.”).
As Judge Pauley concluded, “broadly speaking,
the statutes contain the same three elements . . . (1) the
16
deceptive act, (2) materiality, and (3) injury.”
ECF No. 216 at
21.
4.
Plaintiffs
Common Law Claims
also
bring
common
law
claims
for
negligent
misrepresentation, breach of express and implied warranty, and
unjust
enrichment.
These
claims
are
similarly
premised
on
plaintiffs establishing a deceptive and misleading act and fail if
plaintiffs cannot meet the statutory standard.
See Barreto v.
Westbrae Nat., Inc., 518 F. Supp. 3d 795, 806 (S.D.N.Y. 2021)
(dismissing common law claims because plaintiffs did not plead
statutory
GBL
claims,
and,
in
particular,
that
label
was
“materially misleading”).
C. Standard for Admissible Expert Testimony under Rule
702 and Daubert
The parties have also filed motions to disqualify each other’s
experts.
Expert testimony is admissible under Rule 702 of the
Federal Rules of Evidence, which provides in full:
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in
the form of an opinion or otherwise if: (a) the expert’s
scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence
or to determine a fact in issue; (b) the testimony is
based on sufficient facts or data; (c) the testimony is
the product of reliable principles and methods; and (d)
the expert has reliably applied the principles and
methods to the facts of the case.
Under the Supreme Court’s decisions in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d
17
469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119
S.Ct. 1167, 143 L.Ed.2d 238 (1999), this Court has a “‘gatekeeping’
function under Rule 702,” under which we are “charged with ‘the
task of ensuring that an expert's testimony both rests on a
reliable
foundation
and
is
relevant
to
the
task
at
hand.’”
Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 265 (2d
Cir. 2002) (quoting Daubert, 509 U.S. at 597).
of
expert
testimony
has
the
burden
of
“[T]he proponent
establishing
by
a
preponderance of the evidence that the admissibility requirements
of Rule 702 are satisfied[.]”
151, 160 (2d Cir. 2007).
United States v. Williams, 506 F.3d
The Second Circuit has distilled Rule
702’s requirements into three broad criteria: (1) qualifications;
(2) reliability; and (3) relevance and assistance to the trier of
fact.
See Nimely v. City of New York, 414 F.3d 381, 396–97 (2d
Cir. 2005).
III. Discussion
Defendant argues that plaintiffs fail at the first hurdle
because they have failed to demonstrate that the “All Natural”
claim on KIND products is deceptive or misleading.
We agree and
find this failure fatal to plaintiffs’ case.
Central to defendant’s argument is the “reasonable consumer”
standard, which requires plaintiffs seeking recovery under the
various consumer protection statutes at issue in this case to show
that
a
“reasonable
consumer
would
18
have
been
misled
by
the
defendant’s conduct.”
See Ackerman v. Coca–Cola Co., No. 09 Civ.
0395 (JG), 2010 WL 2925955, at *15 (E.D.N.Y. July 21, 2010)
(analyzing claims under the GBL, UCL, FAL, and CLRA); In re FritoLay N. Am., Inc. All Nat. Litig., No. 12-MD-2413 (RRM) (RLM), 2013
WL 4647512, at *13 (E.D.N.Y. Aug. 29, 2013) (applying reasonable
consumer standard to claims brought under GBL, UCL, FAL, CLRA and
FDUPTA).
The reasonable consumer standard is an “objective standard.”
Barton v. Pret A Manger (USA) Ltd., 535 F. Supp. 3d 225, 236
(S.D.N.Y. 2021).
than
a
mere
The reasonable consumer standard requires more
possibility
that
the
defendant’s
label
“might
conceivably be misunderstood by some few consumers viewing it in
an unreasonable manner.”
Ebner v. Fresh, Inc., 838 F.3d 958, 965
(9th Cir. 2016) (internal quotation marks and citation omitted).
“Rather, the reasonable consumer standard requires a probability
that a significant portion of the general consuming public or of
targeted consumers, acting reasonably in the circumstances, could
be misled.”
Id. (internal quotation marks and citation omitted).
“[U]pon [defendant’s] Motion for Summary Judgment, it is incumbent
upon [plaintiff] to introduce evidence that could support a finding
that
reasonable
consumers
theory of deception.
believe”
the
plaintiffs’
proffered
Tran v. Sioux Honey Ass’n, Coop., 471 F.
Supp. 3d 1019, 1026 (C.D. Cal. 2020) (granting summary judgment to
defendant where plaintiff challenged honey displaying a “100%
19
Pure” label because plaintiff failed “to introduce evidence that
could support a finding that reasonable consumers believe the word
‘Pure’ on the label means that there will be no trace amounts of
pesticide in their honey[.]”) (emphasis in original).
the
reasonable
consumer
standard,
a
plaintiff
“To satisfy
must
adduce
extrinsic evidence—ordinarily in the form of a survey—to show how
reasonable consumers interpret the challenged claims.”
Hughes v.
Ester C Co., 330 F. Supp. 3d 862, 872 (E.D.N.Y. 2018).
To establish that KIND’s “All Natural” statement is deceptive
or misleading, plaintiffs must therefore: (1) introduce evidence
demonstrating
a
reasonable
consumer’s
understanding
of
“All
Natural”; and (2) produce extrinsic evidence that would allow a
fact finder to determine that the KIND products fall outside that
understanding of “All Natural.”
A.
Plaintiffs Have Failed to Articulate Why a “Reasonable
Consumer” Would Find the KIND Products Are Not “All
Natural”
We first turn to the question of whether plaintiffs have
introduced
evidence
demonstrating
understanding of “All Natural.”
a
reasonable
consumer’s
For the following reasons, we
find that plaintiffs have not introduced evidence that could allow
a factfinder to determine a reasonable consumer’s understanding of
“All
Natural,”
and
therefore,
their
defendant’s motion for summary judgment.
20
claims
cannot
survive
1. Plaintiffs Cannot Rely on the Definition of “All
Natural”
Judge
Pauley
Articulated
at
Class
Certification
Plaintiffs’ decision to abandon their “Non GMO” claim is not
without consequence
to their
“All Natural”
claim.
At class
certification, Judge Pauley found that that common questions of
fact predominated because the “Non GMO” claim and the “All Natural”
claim were in relevant part, coextensive claims:
[T]he differences between “Non-GMO” and “No Genetically
Engineered Ingredients” on one hand, and “All Natural”
on the other, are minute. “Natural” can be defined as
“existing in or caused by nature; not made or caused by
humankind.” (ACC ¶ 39 (quoting New Oxford American
Dictionary 1167 (3d ed. 2010)).) If a product contains
a GMO, it by definition cannot be natural. . . none of
the labels displayed “All Natural” on its own. Rather,
KIND coupled “All Natural” with “Non-GMO.”
ECF No. 216 at 22-23.
any
KIND
product
ingredients.
But plaintiffs are no longer arguing that
contains
GMOs
or
genetically
engineered
As plaintiffs have abandoned all allegations of the
predicate facts necessary to prove KIND is liable under this theory
of “All Natural,” they cannot take advantage of Judge Pauley’s
determination that a plausible definition of “All Natural” is “Non
GMO.”11
We also note that at class certification, plaintiffs’ allegations in their
complaint were accepted as true. In re Kind LLC “Healthy & All Natural” Litig.,
337 F.R.D. 581, 593 (S.D.N.Y. 2021). Thus, Judge Pauley credited plaintiffs’
proffered definition of “All Natural,” as alleged in the complaint, without
evaluating whether there was evidence in the record that a reasonable consumer
would share that definition. But on a motion for summary judgment, such as
this, plaintiffs are not entitled to the presumption that the allegations in
their complaint are true, and we must determine whether a reasonable consumer
would share plaintiffs’ definition. We further note that no reasonable consumer
11
21
Moreover, we note that, in the context of an “All Natural/Non
GMO” statement, it is not clear that a reasonable consumer would
perceive “All Natural” to have a meaning separate and apart from
“Non GMO.”
The “All Natural” claim is presented in the same line
as the “Non GMO” claim, separated by a forward slash, which
commonly indicates “and or.”
This depiction plausibly indicates
to a consumer that the claims are related, and potentially that
the KIND product is “All Natural, in other words, Non GMO.”
Certainly, Judge Pauley saw the claims as related.
Id. (finding
common issues of law and fact predominated in part because “none
of the labels displayed ‘All
Natural’ on its own and KIND coupled
‘All Natural’ with ‘Non-GMO’”).
Plaintiff Bustamante also saw the
claims as related, stating her deposition that an “All Natural”
product is one “without GMO ingredients” that would be “good for”
her.
Bustamante
Dep.
Tr.
131:13-19.
As
discussed
infra,
plaintiffs now only examine “All Natural” in isolation - never in
the context of the “All Natural/ Non GMO” statement.
Plaintiffs’
persistent failure to consider the challenged claim in the context
in which it appeared to consumers undercuts the arguments that
plaintiffs assert regarding how consumers viewed the claim.
could find a KIND product, in its final, packaged form, was literally not “made
or caused by humankind.”
22
2. No Objective Definition of “All Natural” Exists
The
potential
alternative
of
reliance
on
an
established
definition of “All Natural” to determine a reasonable consumer’s
definition of “All Natural” is not available to plaintiffs.
The
FDA has still not promulgated a regulation regarding the use of
“All Natural” on product labels.12
Indeed, the FDA’s solicitation
of comments regarding a potential regulation of the term “All
Natural” demonstrates that the phrase is subject to numerous and
distinct
definitions,
consumers.
without
a
single
objective
meaning
to
For example, the FDA solicited comments and proposals
addressing, inter alia,
whether the term “All Natural” should
encompass: (1) the “type(s) of ingredients [that] would disqualify
the food from bearing the term [natural]”; (2) whether “the manner
The FDA does have longstanding guidance regarding the definition of “All
Natural,” which states:
12
The FDA has considered the term “natural” to mean that nothing
artificial or synthetic (including all color additives regardless
of source) has been included in, or has been added to, a food that
would not normally be expected to be in that food. However, this
policy was not intended to address food production methods, such as
the use of pesticides, nor did it explicitly address food processing
or
manufacturing
methods,
such
as
thermal
technologies,
pasteurization, or irradiation. The FDA also did not consider
whether the term “natural” should describe any nutritional or other
health benefit.
Use of the Term Natural on Food Labeling, U.S. Food & Drug Administration, (Oct.
22, 2018) https://www.fda.gov/food/food-labeling-nutrition/use-term-naturalfood-labeling#:~:text=The%20FDA%20has%20considered%20the,to%20be%20in%20that%
20food. The FDA’s policy does not provide clear guidance in this case, where
it is, by its own terms, dependent on what a consumer would “expect[] to be in
that food.” As such, this definition does not establish a reasonable consumer’s
understanding of the term “All Natural.” See also Segedie v. Hain Celestial
Grp., Inc., No. 14 Civ. 5029 (NSR), 2015 WL 2168374, at *11 (S.D.N.Y. May 7,
2015) (“Likewise, the FDA’s and USDA’s respective policies concerning ‘natural,’
while potentially relevant, are not controlling.”)
23
in which an ingredient is produced or sourced [should] affect
whether a food containing that ingredient may be labeled as
‘natural’”; (3) whether “certain production practices used in
agriculture, for example, genetic engineering . . . be a factor in
defining ‘natural’”; and (4) whether “the term ‘natural’ [should]
only
apply
to
‘unprocessed’
foods
[and
i]f
‘unprocessed’ and ‘processed’ be defined[?]”
“Natural”, 2015 WL 6958210.
so,
how
should
Use of the Term
The FDA further noted that, due to
the plurality of definitions, there is “evidence that consumers
regard many uses of this term as non-informative.”
Id.
Likewise, plaintiffs’ own statements and positions similarly
demonstrate the diversity of views about how to understand the
term “All Natural.”
For example, plaintiffs’ amended consolidated
complaint advances five different definitions relating to the term
“natural.”13
ACC ¶¶ 39-46.
While, as Judge Pauley noted, these
definitions are not inconsistent, ECF No. 216 at 26-27, they are
not all coextensive; that is, a product can meet the criteria in
the FDA guidance that it does not contain unexpected artificial
ingredients
without
meeting
the
criteria
in
the
dictionary
definition proffered by plaintiffs that it is “existing in or
caused by nature; not made or caused by humankind,” ACC ¶ 39.
13
See supra at 8 n.7.
24
Similarly, each of the plaintiffs in this case has advanced
a different theory about how to understand the term, “All Natural.”
See 56.1 ¶ 12 (Short testified that she believed that “natural”
meant the Products were made with whole nuts, fruits, and whole
grains); ¶ 17 (Thomas testified her understanding of “All Natural”
was that “the ingredients were not synthetic, not chemicals, [but
were] natural ingredients”); ¶ 29 (Livingston testified a natural
product is “pull[ed] out of the Earth” or “dirt,” or “untouched”);
see also Bustamante Dep Tr. 131:13-19 (testifying an all natural
product would be one without GMO ingredients and one that would be
“good for” her).
Given this diversity of views, none of these
definitions supplies, or purports to be, a reasonable consumer’s
definition of “All Natural.”
Plaintiffs therefore have not, prior
to the instant motion, articulated before this Court a viable
theory for why the challenged KIND products are not within a
reasonable consumer’s understanding of “All Natural.”
3. Dr. Dennis’s Report Does Not Establish a Reasonable
Consumer’s Understanding of “All Natural”
Having failed to plead a reasonable consumer’s understanding
of “All Natural,” plaintiffs must rely on the testimony of Dr. J.
Michael Dennis, who conducted a “consumer perception survey” to
meet their burden.
Dr. Dennis is experienced as an expert in
litigation; he has testified as a survey research expert for over
20 years and estimates that he has testified in approximately 40
25
cases in the last ten years.
ECF No. 259-5 (“Dennis Rpt.”) ¶ 11;
ECF No. 259-9 (“Dennis Dep. Tr.”) at 11:11-13.
He holds B.A. and
M.A. degrees in government studies from the University of Texas,
Austin and received his Ph.D. degree in political science from the
University of Chicago.
Dennis Rpt. ¶ 14.
Defendant challenges
Dr. Dennis’s survey, arguing that it is inadmissible because it is
biased and leading, and therefore cannot assist the trier of fact.
This Court agrees, and so finds that there is a “complete failure
of proof concerning an essential element” of plaintiffs’ case,
which necessarily renders all other facts immaterial such that
summary judgment is granted to defendant.
Crawford, 758 F.3d at
486.
a. Dr. Dennis’s Perception Survey
Dr. Dennis conducted a survey that purports to determine how
a reasonable consumer, acting reasonably under the circumstances,
understands KIND’s “All Natural” claim.
Dr. Dennis first screened
consumers to ascertain if they resided in Florida, California, or
New York, and had purchased a snack bar from KIND or certain
competitors in the last 12 months.14 Dennis Rpt. ¶ 26.
He then
presented individuals with a mock-up of a product, that, in many
respects, resembled the packaging of a KIND bar.
81.3% of respondents had purchased a KIND bar in the last 12 months.
Dennis Rpt. ¶ 31.
14
26
Id. ¶ 40.
Dr. Dennis then asked each of the participants whether
they agreed, disagreed, or did not know/were not sure if they
agreed with a statement regarding the “All Natural” product:
Id. ¶ 48.
Dr. Dennis found that 86.4% of consumers selected the
option that an “All Natural” product would not contain “artificial
or synthetic ingredients.” Id. ¶ 95. Likewise, Dr. Dennis also
27
asked consumers to select one of the following options regarding
their expectations of an “All Natural” product: (1) that it is not
“made using these chemicals: Phosphoric Acid, Hexane, Potassium
Hydroxide, Ascorbic Acid”;
chemicals:
Phosphoric
(2) that it
Acid,15
Hexane,16
“is made using these
Potassium
Hydroxide,17
Ascorbic Acid18”; or (3) that they were “Not sure/No expectation.”
Phosphoric acid is a common ingredient in fertilizer and used in chemical
synthesis. Background Report, AP-42 Section 5.11: Phosphoric Acid, Pacific
Environmental Services, https://www.epa.gov/sites/default/files/2020-09/docu
ments/final_background_document_for_phosphoric_acid_section_8.9.pdf.
Plaintiffs do not contend that the KIND products contain phosphoric acid.
16
Hexane is used to extract edible oils from seeds and vegetables, as a
special-use solvent, and as a cleaning agent.
See Hexane, Environmental
Protection Agency, https://www.epa.gov/sites/default/files/2016-09/documents/
hexane.pdf. It is unclear if Dr. Dennis selected this chemical because it is
one of the substances Dr. Toutov discusses.
17
Potassium hydroxide is also known as lye. See Hazardous Substance Fact
Sheet, New Jersey Department of Health, https://nj.gov/health/eoh/rtkweb/docu
ments/fs/1571.pdf. Plaintiffs do not contend that the KIND products contain
potassium hydroxide.
18
Ascorbic acid is another name for Vitamin C. See Vitamin C, Mayo Clinic
https://www.mayoclinic.org/drugs-supplements-vitamin-c/art-20363932. Some KIND
products, discussed infra, contain ascorbic acid. See 56.1 ¶ 73. Shockingly,
Dr. Dennis claimed that he was unaware of “exactly what [ascorbic acid] is,”
Dennis Dep. Tr. 95:12-14, and claims he only included it in his survey because
it was one of the “chemicals that I saw in the amended complaint.” Id. 93:2594:5.
Dr. Dennis’s decision to blindly include items listed by plaintiff’s
counsel in the complaint, without any investigation or consideration of the
appropriateness of those items, only underscores his survey’s lack of
reliability.
15
28
Id. ¶ 50.
b.
Dr. Dennis’s Survey is Biased and Leading
Dr. Dennis’s survey is inadmissible because it is biased and
leads the consumer to select the answer preferred by plaintiffs.
A survey cannot assist the trier of fact where it poses a “leading
question in that it suggest[s] its own answer.”
Universal City
Studios, Inc. v. Nintendo Co., 746 F.2d 112, 118 (2d Cir. 1984)
(excluding survey in trademark infringement action); see also
Scotts Co. v. United Indus. Corp., 315 F.3d 264, 269 (4th Cir.
2002)
(holding
that
when
survey
questions
are
leading
and
suggestive, this “weaken[s] the relevance and credibility of the
survey evidence to the point that it sheds no light on the critical
question in [the] case.”); Valador, Inc. v. HTC Corp., 242 F. Supp.
29
3d 448, 465 (E.D. Va. 2017) (excluding “unreliable” survey with
“improperly suggestive” questions that “creat[ed] ‘demand effects’
or ‘cues’ from which a respondent can ‘infer the purpose of the
survey and identify the ‘correct’ answers.’”)(citation omitted).
Here, Dr. Dennis’s survey improperly directs survey participants
to the “correct” answer.
Rather than inquiring into a reasonable
consumer’s definition of “All Natural,” Dr. Dennis’s survey is
plainly designed to validate plaintiffs’ theory.
In his first question regarding consumer’s expectations for
an “All Natural” product, Dr. Dennis asks only about one potential
definition of “All Natural” – the definition that plaintiffs
selected for this case – and only allows survey participants to
select from finite choices agreeing, disagreeing, or not having an
expectation
about
this
definition.
This
limited
inquiry
is
insufficient to determine in any meaningful sense how reasonable
consumers
understand
plaintiffs’ theory.
the
“All
Natural”
claim,
or
to
test
Dr. Dennis does not contrast the plaintiffs’
theory with any other possible competing theory (e.g., whether
“All Natural” could mean “preservative free,” “no added flavors,”
or even any of the various theories or definitions plaintiffs
previously advanced in this case or any of the theories included
in the FDA’s notice soliciting comments).
Similarly, as defendant
suggests, Dr. Dennis could have asked open-ended questions to
determine the consumer’s understanding of the term.
30
But, as Dr.
Dennis admitted at his deposition, he only provided two “alternate
understandings” of the “All Natural” claims because he “thought
that’s what the plaintiff’s [sic] theory of liability amounted
to.”
Dennis Dep. Tr. 80:14-17.
In fact, at his deposition, Dr. Dennis was candid that his
survey
questions
were
formulated
with
the
supporting plaintiffs’ litigation strategy.
sole
purpose
of
He testified: “My
exercise was not a general one of measuring consumers’ opinions of
the ‘All Natural’ claim in a vacuum.
I was asked to test the
plaintiffs’ theory of liability; so it was not an open-ended
fishing exercise to measure what consumers just thought of the
‘All Natural’ claim[.]”
that
plaintiffs’
Id. 81:2-10.
counsel
provided
Indeed, Dr. Dennis admitted
the
proposed
definition,
stating, “I did check with plaintiffs’ counsel to – to see if I’m
on the right track here in defining the – and translating the
plaintiffs’ theory of liability into survey questions.” Id. 89:2225.
Similarly, Dr. Dennis chose to display the “All Natural” claim
in isolation, rather than as part of the “All Natural/Non GMO”
statement, as it always appeared on KIND labels.19
Dr. Dennis did
so despite the fact that he admitted that his concern in displaying
the two terms together was that they “would interact.”
Id. at
At his deposition, Dr. Dennis stated that his understanding (in fact,
misunderstanding) was that the “Non GMO” claim was “not always shown in
combination” with the “All Natural” claim. Dennis Dep. Tr. 53:5-6.
19
31
54:24.20
rather
The choice to present the “All Natural” claim by itself,
than
as
it
appeared
on
KIND
products,
undercuts
the
relevance of Dr. Dennis’s results.
Likewise
in
his
second
question,
Dr.
Dennis
listed
“chemicals” drawn from plaintiffs’ amended consolidated complaint,
without
personally
reaching
any
understanding
of
what
those
“chemicals” were, or whether they were ingredients that cannot be
considered
“All
Natural.”21
See
id.
93:25-94:5;
95:12-14
(admitting Dr. Dennis was unaware of “exactly what [ascorbic acid]
is,” and explaining he included it because it was one of the
“chemicals that I saw in the amended complaint”).
Dr. Dennis
Dr. Dennis speculated that displaying the “All Natural” claim with the
“Non GMO” claim would increase the number of survey participants who selected
the option that they would expect an “All Natural” product to exclude
“artificial or synthetic ingredients.” Dennis Dep Tr. 55:10-17. But Dr. Dennis
did not ask any survey questions to verify his hunch.
21
The “chemicals” Dr. Dennis inquired about are also largely irrelevant
because three out of the four are not present in KIND products. Plaintiffs do
not claim that phosphoric acid or potassium hydroxide are actually present, in
any amount, in KIND products. While plaintiffs attempt to argue that hexane
may be present in some KIND products, plaintiffs’ argument is pure speculation.
Plaintiffs did not do any testing of KIND products to determine if they contained
hexane. 56.1 ¶ 72. KIND, on the other hand, did undertake testing to determine
if any KIND product contained hexane, and determined that no hexane was present
in any of the tested KIND products.
Id.
Further, plaintiffs’ attempt to
quibble with KIND’s test on the basis that it is theoretically possible that
KIND products could still contain less than one part per million of hexane is
foreclosed as a matter of law. Courts routinely find that trace amounts of
non-natural substances do not invalidate a product’s “natural” claim. See Parks
v. Ainsworth Pet Nutrition, LLC, 377 F. Supp. 3d 241, 248 (S.D.N.Y. 2020); Axon
v. Citrus World, Inc., 354 F. Supp. 3d 170, 183 (E.D.N.Y. 2018) (“Given the
widespread use of herbicides, the court finds it ‘implausible that a reasonable
consumer would believe that a product labeled [‘Florida’s Natural’] could not
contain a trace amount of glyphosate that is far below the amount’ deemed
tolerable by the FDA.”) (alteration in original) (citation omitted), aff’d sub
nom. Axon v. Fla’s Nat. Growers, Inc., 813 F. App’x 701 (2d Cir. 2020) (affirming
district court’s grant of a motion to dismiss); In re Gen. Mills Glyphosate
Litig., 2017 WL 2983877, at *5 (D. Minn. July 12, 2017) (holding that as a
matter of law, not plausible that a reasonable consumer would be deceived by
trace glyphosate in food product labeled as “natural”).
20
32
transparently constructed this question so that it would lead
consumers to find the listed “chemicals” were not “All Natural.”
At his deposition, Dr. Dennis tacitly acknowledged the leading
effect of the word “chemicals.”
When asked if he would expect a
similar response if he had listed fictitious chemicals instead of
the chemicals listed, Dr. Dennis stated that he did not know, but
thought
it
would
depend
on
“the
quality
of
the
substituted
fictitious chemicals and the extent to which they looked, you know,
reasonable or not.” Id. 98:18-99:3. Dr. Dennis’s admission tracks
the
common-sense
intuition
that,
when
prompted
by
the
word
“chemicals,” consumers’ consideration of the listed substances
described
as
“chemicals”
chemicals
carries.
is
tainted
Despite
this
by
the
connotation
understanding,
Dr.
that
Dennis
“thought it would not serve the project well for me to define these
[listed chemical] terms.”
Id. 96:23-24.
The failure to define
the terms is a clear attempt to manipulate consumers into selecting
the answer that plaintiffs preferred.
Moreover,
Dr.
Dennis’s
choice
to
omit
definitions
is
particularly significant given the range of “chemicals” included
in his list.
In particular, Dr. Dennis tacked “ascorbic acid” –
another name for Vitamin C – at the tail-end of his list of
“chemicals.”
His choice to do so, and to describe Vitamin C as an
“acid,” paralleling the description of “phosphoric acid,” which
appears first in the list and is not safe for ingestion, is a clear
33
prompt to consumers as to how to “correctly” answer the question.
As a result of this manipulative design choice, the Court finds
the question has no probative value and could not assist a trier
of fact.
Due to the
limited scope of
inquiry,
even ignoring the
foregoing methodological deficiencies, Dr. Dennis’s survey would
provide no useful information about how a reasonable consumer
understands “All Natural.”
Dr. Dennis’s survey does not define
“artificial” or “synthetic,” or what it means for a product to
“contain” or be “made with” those ingredients.
Confusingly,
plaintiffs assert that this was a feature, not a bug: “But KIND
misses the point—the goal of this part of the survey was for
respondents to interpret the meaning of ‘artificial or synthetic’
or ‘made with’ phrases.”
However,
without
any
ECF No. 278 (“Dennis Opp.”) at 17.
context
or
elaboration
of
a
reasonable
consumer’s understanding of “artificial or synthetic ingredients,”
the fact finder is left guessing at what a reasonable consumer
would understand these terms to mean.22
For example, to evaluate
Plaintiffs are also incorrect when they argue that it is sufficient to
just say “assume[] that the meaning [the survey participants] attached [to the
terms in Dennis’s definitions] was plain English.” Dennis Opp. at 17. Plain
English does not provide any elaboration as to how a consumer interpreted the
terms in Dr. Dennis’s survey. Merriam Webster defines “artificial” as inter
alia, “humanly contrived [] often on a natural model”, and “lacking in natural
or spontaneous quality.”
See Artificial, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/artificial.
Similarly, synthetic
is defined as “of, relating to, or produced by chemical or biochemical
synthesis, especially: produced artificially.”
Synthetic, Merriam-Webster
Dictionary, https://www.merriam-webster.com/dictionary/synthetic.
At best,
the Dennis definition offers no more than a tautology: something that is not
22
34
the claims at issue in the case using Dr. Dennis’s framework, the
fact finder would have to answer the following questions:
•
What processing, if any, does a reasonable consumer
believe can occur to an ingredient or product before
that ingredient or product is considered artificial or
synthetic?
•
Are ingredients that do occur naturally, such as
Vitamin A or C, but potentially manmade in the specific
form that appears in KIND products, artificial or
synthetic?
•
Are trace or residual amounts of chemicals that were
used in processing ingredients in KIND bars enough to
cause the KIND products to contain “artificial or
synthetic ingredients”?23
These questions are central to plaintiffs’ theory of the case.
Plaintiffs argue, in large part, that KIND products are not “All
Natural” because they are either heavily processed, potentially
using certain arguably “artificial” or “synthetic” products, or
because
they
products.
may
potentially
retain
See, e.g., Opp. at 6-7.
trace
amounts
of
those
Leaving a factfinder to guess
at the answers to key questions in this case completely undermines
any claim that Dr. Dennis’s definition can serve as the “objective
standard” necessary to determine if the KIND labels are false or
misleading.
See Barton, 535 F. Supp. 3d at 236.
natural is not natural. This does not shed light on how a reasonable consumer
could answer the question actually at issue in this case, i.e., are the KIND
products “All Natural.” As such, Dr. Dennis’s first question does not provide
assistance to the trier of fact.
23
We note that though plaintiffs try to advance this theory, see Opp. at 67, courts have rejected the argument that as a matter of law, residual traces
of chemicals are insufficient to cause a product to fail to be "all natural.”
See supra at 32 n.20.
35
Plaintiffs argue in response that they did not need to provide
“a universally accepted definition of ‘All Natural,’” but instead
only determine if a reasonable consumer would interpret an “All
Natural” claim on a product to mean that the product did not
contain specific artificial and synthetic ingredients.
This response misses the mark.
Opp. at 6.
All plaintiffs have done here is
show that consumers, when provided with the definition of “All
Natural” that plaintiffs’ counsel constructed for this litigation,
will click a check box saying that they agree to it.
But this is
not
deceive
evidence
that
the
“All
Natural”
label
would
“a
significant portion of the general consuming public or of targeted
consumers, acting reasonably in the circumstances.”
Brazil v.
Dole Packaged Foods, LLC, 660 F. App’x 531, 533 (9th Cir. 2016);
see also Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir.
2015) (noting for an act to be misleading under the GBL it must be
“likely to mislead a reasonable consumer acting reasonably under
the circumstances”).
While Dr. Dennis’s “no artificial or synthetic ingredients”
definition
is,
on
its
face,
plausible,
mere
insufficient at this stage of the litigation.
plausibility
is
Instead, plaintiffs
must show that evidence that would allow a trier of fact to
determine that a reasonable consumer actually would hold the
proposed understanding of the term “All Natural.”
It is therefore
insufficient for Dr. Dennis’s definition to resemble the criteria
36
articulated in other definitions of “All Natural,” which also
reference the terms artificial or synthetic.24 There is no evidence
that, absent prompting with plaintiffs’ counsel definition, a
reasonable consumer would hold the understanding of “All Natural”
plaintiffs now advance.
Nor is there any evidence as to how this
definition of “All Natural” would compare to other plausible
definitions, including the definitions that plaintiffs themselves
proffered.
counsel
can
Plaintiffs’ argument is essentially that plaintiffs’
construct
a
broad
definition
of
“All
Natural,”
circulate that definition for consumer approval, and then claim
that
reasonable
consumers
held
plaintiffs’
definition
(as
plaintiffs will proceed to specifically interpret it) all along,
such that they were deceived by a company’s failure to meet that
definition.
Rather than determining how reasonable consumers
understand the “All Natural” claim, plaintiffs are supplying the
standard, and then arguing that consumers were deceived. Defendant
cannot be held liable because it has failed to adjust its labeling
24
See, e.g., New Oxford American Dictionary definition, (ACC ¶ 39 (“existing
in or caused by nature; not made or caused by humankind”)); the FDA's
policy, see 58 C.F.R. §§ 2302, 2407, (ACC ¶ 41 (defining the outer boundaries
of the use of the term “natural” as “meaning that nothing artificial or synthetic
(including all color activities regardless of source) has been included in, or
has been added to, a food that would not normally be expected to be in the
food”)); and the USDA's definition, (ACC ¶¶ 43–45 (“(1) the product does not
contain any artificial flavor or flavorings, color ingredient, or chemical
preservatives . . . or any other artificial or synthetic ingredient, and (2)
the product and its ingredients are not more than minimally processed”
(alteration in original))).
37
to
hit
the
moving
target
of
counsel’s
understandings of “All Natural.”
various
solicited
Nor can defendant be held
responsible for a host of possible, even if potentially reasonable,
consumer
beliefs
about
the
meaning
of
“All
Natural.”
Such
multiplicity distorts the reasonable consumer standard.
Plaintiffs
also
claim
that
challenges
to
Dr.
Dennis’s
methodology “ultimately go to the weight, not the admissibility,
of Dr. Dennis’s testimony and are fodder for cross-examination,
not exclusion.”
In re Scotts EZ Seed Litig., No. 12 Civ. 4727
(VB), 2017 WL 3396433, at *8 (S.D.N.Y. Aug. 8, 2017) (citation and
alterations omitted).
But where the survey is so misleading that
it cannot assist the trier of fact, it is inadmissible, even when
that failure is due to its methodology.
Universal City Studios,
Inc., 746 F.2d at 118 (2d Cir. 1984) (excluding survey in trademark
infringement action due to leading questions); see also Nimely,
414 F.3d at 396–97 (“[W]hen an expert opinion is based on data, a
methodology, or studies that are simply inadequate to support the
conclusions reached, Daubert and Rule 702 mandate the exclusion of
that unreliable opinion testimony.”) (internal quotation marks and
citation omitted).
Plaintiffs cannot side-step this Court’s “task
of ensuring that an expert’s testimony both rests on a reliable
foundation and is relevant to the task at hand,” Daubert, 509 U.S.
at 597, by claiming that the deficiencies are methodological.
38
Thus, Dr. Dennis’s perception survey does not assist the trier
of fact because it is biased, leading, and to the extent it
provides
any
insight,
cannot
provide
the
objective
necessary to answer the key question in this case.25
standard
As it cannot
assist the trier of fact, the survey and Dr. Dennis’s testimony
regarding the survey are inadmissible.
Without the expert testimony of Dr. Dennis, plaintiffs have
not proffered a theory as to how a reasonable consumer would
understand the “All Natural” claim on the KIND products.26
25
As
We note that we are not the first Court to find that Dr. Dennis’s opinions
are unreliable.
See, e.g., Strumlauf v. Starbucks Corp., No. 16 Civ. 01306
(YGR), 2018 WL 306715, at *6-7 (N.D. Cal. Jan. 5, 2018) (rejecting Dr. Dennis’s
survey as unreliable because it was leading); In re 5-Hour Energy Marketing and
Sales Practices Litig., No. ML 13-2438 (PSG), 2018 WL 11354864, at *8 (C.D.
Cal. January 24, 2018) (finding Dr. Dennis’s survey “flawed”); Senne v. Kansas
City Royals Baseball Corp., 315 F.R.D. 523, 583 (N.D. Cal. 2016) (excluding
testimony), on reconsideration in part, 2017 WL 897338 (N.D. Cal. Mar 7, 2017),
aff’d in part, rev’d in part and remanded, 934 F.3d 918 (9th Cir. 2019); O’Bannon
v. Nat’l Collegiate Athletic Ass’n, 7 F. Supp. 3d 955, 976 (N.D. Cal. 2014)
(finding Dr. Dennis’s opinions unreliable), aff'd in part, vacated in part, 802
F.3d 1049 (9th Cir. 2015); but see In re Scotts EZ Seed, 2017 WL 3396433, at
*10 (admitting testimony); Pettit v. P&G, No. 15 Civ. 02150 (RS), 2017 WL
3310692, at *4 (N.D. Cal. Aug. 3, 2017) (same); Sharpe v. A&W Concentrate Co.,
No. 19 Civ. 768, 2021 WL 3721392, at *9 (E.D.N.Y. July 23, 2021) (admitting
testimony at class certification because defendants challenges to Dr. Dennis’s
survey are “premature”); Testone v. Barlean’s Organic Oils, LLC, No. 19 Civ.
169 (JLS) (BGS), 2021 WL 4438391, at *17 (S.D. Cal. Sept. 28, 2021) (admitting
testimony).
26
Plaintiffs point in their opposition to internal KIND documents,
statements of KIND’s founder, and to a survey referenced in the FDA’s
solicitation of comments regarding the “All Natural” claim. Opp. at 5. Neither
piece of evidence provides a basis for a fact finder to determine a reasonable
consumer’s definition of “All Natural.” To the extent that plaintiffs are trying
to rely on KIND’s statements, these do not purport to establish a reasonable
consumer’s definition of “All Natural” and just represent the views of KIND
employees or internal KIND survey data. Moreover, the FDA’s notice soliciting
comments references various potential meanings of “All Natural,” for the purpose
of trying to establish a standard, and notes that “consumers regard many uses
of this term as non-informative.” 80 FR 69905-01, 2015 WL 6958210. As such,
the FDA’s notice does not establish any fixed definition of “All Natural.”
Further, Plaintiffs cannot cherry-pick one of the possibilities the FDA
suggested in announcing its effort to define “All Natural,” and hold it out as
a reasonable consumer’s definition, any more than the FDA’s other suggestions.
39
such, we find that defendant succeeds on its motion for summary
judgment.
B.
Plaintiffs Have Failed to Develop Evidence that the KIND
Products Do Not Meet Dr. Dennis’s Definitions
Even if we were to accept the argument that Dr. Dennis’s
report established a reasonable consumer’s understanding of the
“All Natural” representation, plaintiffs’ claims would still not
survive the motion for summary judgment for the independent reason
that plaintiffs have not shown that any KIND product claiming to
be “All Natural” contains “artificial or synthetic” ingredients or
any of the chemicals Dr. Dennis listed.
1. Dr. Toutov’s Report Is Not Admissible
Plaintiffs rely on the expert report of Dr. Anton Toutov to
analyze the ingredients in the KIND products to determine if they
were consistent with an “All Natural” claim.
(“Toutov Rpt.”).
ECF No. 260-1
Where Dr. Dennis’s survey purported to determine
how consumers understood the “All Natural” claim, Dr. Toutov’s
report was intended to evaluate “whether-scientifically and on a
molecular level-[the KIND products] are in fact ‘All Natural.’”
56.1 ¶ 68.
Dr. Toutov “concluded the Products’ labeling was
actually false because many of the ingredients could not be
accurately characterized as ‘natural’ as a matter of organic
chemistry, using a framework culled from the applicable scholarly
literature and regulations.”
Id. (citing Toutov Rpt. ¶¶ 11-15)
40
(emphasis
in
original).
Defendant
challenges
Dr.
Toutov’s
expertise and the relevance and reliability of his report.
Dr. Toutov holds a Ph.D. in organic chemistry from the
California Institute of Technology, and has worked in the field of
organic chemistry at high levels.
Toutov Rpt. ¶ 5.
Based on his
education and experience, we find him qualified as an expert in
organic chemistry.
Toutov
examined
To undertake his inquiry in this case, Dr.
the
ingredient
lists
of
the
challenged
KIND
products and determined whether the listed ingredients satisfied
his “elements of naturalness” framework, examining their “origin,”
“production/processing,” and “final form.”
Id. ¶¶ 31-34.
This
“elements of naturalness” framework was created by Dr. Toutov,
because
accepted
“[t]here
by
all
is
no
universal
stakeholders
definition
involved
in
of
the
naturalness
sourcing,
manufacturing, selling, and consuming of food products.”
14.
Id. ¶
Dr. Toutov did not perform any analysis of the specific form
of the ingredients contained in KIND products (e.g., he looked
generally at glucose but did not consider what type of glucose was
in KIND products) or any chemical analysis of any KIND product instead, he reviewed the ingredient lists and provided a report on
the listed ingredients.
We find that Dr. Toutov’s report is not admissible because it
is irrelevant to the issues in this case and cannot assist the
trier of fact.
As plaintiffs state, “plaintiffs’ theory of the
41
case is that these ingredients [in KIND products] are not within
a reasonable consumer’s definition of “All Natural.”
(emphasis in original).
Opp. at 5-6
But Dr. Toutov’s opinions about whether
an ingredient satisfies his “elements of naturalness” bear no
relationship
Natural.”
to
Dr.
a
reasonable
Toutov
is
consumer’s
clear
that
he
definition
did
not
of
“All
consider
a
reasonable consumer’s understanding of “All Natural” in writing
his report.
See ECF No. 259-10 (“Toutov Tr.”) 56:20-24 (“Q. So as
part of distilling all of this information into a framework, what
role did what consumers think all natural or natural needs have in
that framework that you have created?
A. Oh. None.”).
Moreover,
Dr. Toutov’s report does not apply or reference Dr. Dennis’s
definitions.
In fact, Dr. Toutov stated he disagreed with Dr.
Dennis’s definitions:
Q. Is a proper definition of natural that a product
contains no artificial or synthetic ingredients?
A. I think that that is a component of naturalness,
but the evaluation of naturalness is more complex than
that and requires additional steps. . . .
Id. 60:16-22.
Q. Is a proper definition of natural that a product
does not contain the chemicals phosphoric acid, hexane,
potassium hydroxide, and ascorbic acid?
A. Not necessarily. A much more -- a much more
complex review and understanding of the entire situation
would need to be undertaken, but, of course, additives
and other elements like you mentioned in perhaps your
first question, they are a factor and it needs to be
taken as a whole.
42
Id. 61:14-25.
As such, Dr. Toutov’s report cannot the answer the
question that plaintiffs have provided his report to answer:
whether the ingredients in the KIND products are not within a
reasonable consumer’s definition of “All Natural.”27
Not only does Dr. Toutov apply an irrelevant standard, but
large portions of his report apply that standard to irrelevant
ingredients.
Dr. Toutov never conducted any chemical analysis of
KIND products to test for non-natural ingredients.
Instead, much
of Dr. Toutov’s report considers what typically - and, on occasion,
atypically
-
occurs
in
producing
the
ingredients
listed
as
ingredients in KIND products, without considering whether the
ingredients KIND sources actually were produced by that typical
process.
For example, Dr. Toutov considers in determining that
canola oil is not “all natural” that “[i]n 2012, over 90% of all
canola crops were genetically engineered,” Toutov Rpt. ¶ 52, even
27
Dr. Toutov does identify three ingredients in KIND products as
“artificial” or “synthetic” in his report: D-Alpha Tocopherol Acetate/Vitamin
E acetate; ascorbic acid (Vitamin C); and Vitamin A acetate. Toutov Rpt. ¶¶
113, 115, 118, 121, 123.
These ingredients are only present in KIND Plus
Antioxidants bars. 56.1 ¶¶ 70, 73. As indicated in its name, the KIND Plus
Antioxidants bar displays prominetly on the front of the packaging that it is
a KIND bar “plus” “50% DV Antioxidants,” namely, “Vitamins A, C, and E.” 56.1
¶ 8. As such, no reasonable consumer could have been deceived by the addition
of added vitamins. See Hairston v. S. Beach Beverage Co., Inc., No. 12-cv-1429
(JFW (DTBx) 2012 WL 1893818 at *5 (C.D. Cal. May 18, 2012) (holding “no
reasonable consumer would read the ‘all natural’ language as modifying the ‘with
vitamins’ language and believe that the added vitamins are suppose[d] to be
‘all natural vitamins.’”) Further, even if there were doubt about how a consumer
may read the label, that doubt is resolved by the claim that the bar contains
“50% DV Antioxidants Vitamins A, C, and E.”
No reasonable consumer could
believe that they would receive 50% of their daily value of vitamins from a
single bar without an artificial or synthetic vitamin being added to the
product.
43
though he admits “at least some of the canola oil that is sourced
by KIND is non-GMO,” id. ¶ 55; see also id. ¶ 86 (noting that
genetically modified corn is a “common” starting material for
glucose syrup, but failing to consider whether KIND’s syrup is
derived from genetically modified corn).
Similarly, Dr. Toutov
notes in his description of the process of making palm oil that
“[o]ccasionally, a water solution of ethylene diamine tetracetic
acid (EDTA) is added to the hot oil during processing to remove
trace metal impurities.”
Id. ¶ 57.28
Without evidence that this
process was used in making KIND products, it is plainly irrelevant.
See In re KIND LLC “Healthy & All Natural” Litig., 209 F. Supp. 3d
689, 698 (S.D.N.Y. 2016) (holding “[p]laintiffs’ allegations that
approximately 90% of the canola, 89% of corn, and 94% of soybeans
grown
in
the
United
States
are
genetically
modified
are
insufficient without being tied to the KIND products purchased by
[p]laintiffs.”) (internal quotation marks omitted).
Thus, where
Dr. Toutov relies on the typical or usual source of an ingredient,
and not the source actually used in KIND products, his opinion has
no relevance to this case.
As such, Dr. Toutov’s opinions cannot
assist the trier of fact, and we grant KIND’s motion to preclude
his testimony and report.
Dr. Toutov’s attempts to sensationalize certain chemicals by explanation
of the potential applications of these chemicals in other contexts or the impact
of these materials if ingested at high concentrations, which plaintiffs do not
claim are present in KIND bars, only detract from any reliability of his report.
28
44
C.
The Motion to Decertify the Class is Granted
Finally, defendant has moved to decertify the class.
“[T]he
district court has the affirmative duty of monitoring its class
decisions.”
2016)
Mazzei v. Money Store, 829 F.3d 260, 266 (2d Cir.
(quotation
marks
and
citation
omitted).
A
court
must
“‘reassess . . . class rulings as the case develops’” in order to
“ensure continued compliance with Rule 23’s requirements.”
Amara
v. CIGNA Corp., 775 F.3d 510, 520 (2d Cir. 2014) (quoting Boucher
v. Syracuse Univ., 164 F.3d 113, 118 (2d Cir. 1999)). “[A]ctual,
not
presumed,
conformance
with
Rule
23[
]
remains
.
.
.
indispensable” to the continued maintenance of a class action.
Gen.
Tel.
Co.
of
Sw.
v.
Falcon,
457
U.S.
147,
160
(1982).
Consequently, a “district court may—and should—decertify a class
when the standards of Rule 23 have not been met.”
Wu v. Pearson
Educ. Inc., 2012 WL 6681701, at *5 (S.D.N.Y. Dec. 21, 2012). “Any
fact that develops or comes to light between the certification
decision and entry of final judgment that calls into serious
question the satisfaction of any of the requirements of Rule 23(a)
or (b) . . . will justify immediate decertification or revision of
the class.”
1 Joseph M. McLaughlin, McLaughlin on Class Actions
§ 3:6 (18th ed. 2021).
Now that plaintiffs have abandoned their “Non GMO” claim and
completed discovery, it is clear that they cannot demonstrate that
“the questions of law or fact common to class members predominate
45
over any questions affecting only individual members, and that a
class action is superior to other available methods for fairly and
efficiently adjudicating the controversy.”
23(b)(3).
See Fed. R. Civ. P.
In certifying the classes, Judge Pauley found this
consideration was satisfied because the “All Natural” and “Non
GMO” claims were subject to a common proof: namely, if a challenged
product contained a GMO, it would fail to be “All Natural.”
As
Judge Pauley explained:
[N]one of the labels displayed “All Natural” on its
own. Rather, KIND coupled “All Natural” with “NonGMO.” Finally, whether “All Natural” and “Non-GMO”
labels on a product are accurate is a binary
question: either it's true or it isn't. And
importantly, the answer to this question will be the
same for each of the named Plaintiffs and every
person who purchased a KIND bar during the class
period. As such, while there is variance in the
labels at issue, common questions as to whether
these
labels
are
deceptive
predominate.
In re Kind LLC “Healthy & All Natural” Litig., 337 F.R.D. 581,
599–600 (S.D.N.Y. 2021) (internal citation omitted).
However,
plaintiffs’ decision to abandon their “Non GMO” claims eliminates
this theory of common proof.
above,
plaintiffs
have
Moreover, for the reasons set out
failed
to
articulate
an
alternative
definition of “All Natural” that is held by reasonable consumers.
Instead,
plaintiffs
have
demonstrated
that
they
different theory as as to why they were deceived.
46
each
hold
a
As such, common
questions of law or fact no longer predominate.
We therefore
decertify the classes.29
IV.
Conclusion
For the foregoing reasons, defendant’s motion for summary
judgment
is
granted,
defendant’s
motions
to
disqualify
the
opinions of Dr. Dennis and Dr. Toutov are granted, defendant’s
motion to decertify the classes is granted, and the remaining
motions are denied as moot.30
The Clerk of Court is respectfully directed to terminate the
pending motions and close the case.
SO ORDERED.
Dated:
New York, New York
September 9, 2022
____________________________
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Moreover, to the extent that Judge Pauley included labels that did not
display an “All Natural” claim (i.e., only displayed “Non GMO” and/or “No
Genetically Engineered Ingredients”) in certifying the classes, these
“subclasses” are considered voluntarily dismissed.
30
Because plaintiffs cannot satisfy the first hurdle, we do not reach the
issues of materiality or injury. Accordingly, the motions to disqualify Dr.
Hamilton, plaintiffs’ expert regarding economic injury, is denied as moot.
Likewise, because we did not need to rely on defendant’s experts, Dr. Kivetz
and Dr. Hutt, to reach this conclusion, we also deny the motion to disqualify
these experts as moot.
29
47