Kind Bars Nutrition Health,
Kind Bars Nutrition Health, (Mike Mozart/FLICKR/CC)

Plaintiffs in the fight over the use of the words “all natural” and “non-genetically modified” in food labeling are trying to get the litigation over KIND bars back on track.

Attorneys who claim false advertising by KIND bars are trying to persuade Southern District Judge William Pauley to lift a stay he issued in the multidistrict litigation in 2016 to give the U.S. Food and Drug Administration time to issue rulemaking on what is, and what is not, “all natural.”

The lifting of the stay is critical, the lawyers say in court papers, to allow discovery to begin in earnest and get down to the nitty-gritty of motion practice in their attempt to win damages and injunctive relief before Pauley.

Lead interim class counsel in In Re: KIND “Healthy and All Natural” Litigation, 15-md-02645, are attorneys with Ahdoot & Wolfson; Finkelstein, Blankinship, Frei-Pearson & Garber; and Pearson, Simon & Warshaw.

To Pauley, they cite the November decision of U.S. District Judge Andrew Guilford of the District of Central California, who lifted a brief stay he issued to await word from the FDA in similar litigation: In re Hain Celestial Seasonings Products Consumer Litigation, 13-01757. Ahdoot & Wolfson are also in the Hain case.

The FDA, the KIND plaintiffs’ lawyers state, “has done absolutely nothing” since the public comment period closed last May and will probably take years to act. They also say it doesn’t matter what, if anything, the FDA does because it would have no retroactive impact on consumers already deceived by the term “all natural.”

Attorneys with Mayer Brown, representing KIND, urged Pauley to leave the stay in place, as the FDA has amassed all kinds of comments offering different views on the term.

After Pauley issued his stay in September, plaintiffs attorneys filed an amended complaint that targeted 39 different KIND bars for advertising on the packaging that they were “non-GMO” or non-genetically modified.

This is false, they say, because the canola, corn and soy used in the bars contain genetic material that “has been altered by humans using genetic engineering techniques.”

What’s more, they contend, the products are not all natural because they “contain ingredients that are so heavily processed that they bear no chemical resemblance to the sources from which they were derived.”

Mayer Brown’s Dale Giali is moving for dismissal of the amended complaint, arguing that the “non-GMO” claims, based on state law, are expressly pre-empted by the 2016 Labeling Act, which requires within two years the development of “a national GMO standard.”

The non-GMO claims, he says, are also subject to the primary jurisdiction of the U.S. Department of Agriculture.

The plaintiffs, he said, despite including a definition from the World Health Organization and asserting what a reasonable consumer might think, “fail to allege what they understood ‘non-GMO’ to mean.”

He also takes aim at the “canola, corn and soy” claims, saying “There are no allegations tying the particular ingredients KIND uses to specific GMO crops.”

Giali wants Pauley to dismiss the amended complaint or, in the meantime, stay the “non-GMO” claims as well.

Attorneys from both sides will appear before Pauley on Jan. 27 to discuss the motion to dismiss in a conference that will also include the plaintiffs’ renewed effort to undo the “all natural” stay.