Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Ill.: Consumer’s refined sugar lawsuit meets bitter end, (Mar 16, 2015)

By Bryant Storm, J.D.

A district court granted Kind, LLC’s motion to dismiss a consumer class action alleging that Kind engaged in deceptive advertising by using refined sugars in a product that was labeled “no refined sugars.” The court reached its conclusion by holding that a consumer’s confusion about Kind’s use of the term refined was not reasonable because “naturally occurring, unrefined sugars derived from sugar cane do not exist.” Ultimately, the court held that the consumer failed to allege how any of the Kind product advertising claims were deceptive (Ibarrola. v. Kind, LLC, March 12, 2015, Ellis, S.).

Rochelle Ibarrola purchased a Kind product from Kind’s Health Grains® product line called Vanilla Blueberry Clusters with Flax Seeds. After purchasing the product twice in 2013, Ibarrola filed suit under Illinois consumer deception laws against Kind alleging that the packaging of Vanilla Blueberry Clusters was deceptive because it claimed that the product contained “no refined sugars” despite the fact that the product contained evaporated cane juice and molasses—two types of partially refined sugars. Ibarrola asserted that she purchased the product while “looking for a product which did not have refined sugars, so she could enjoy a snack without adding additional calories to her diet that had no and/or a diminished nutritional value.” She also alleged that she paid a premium for the product as a result of Kind’s statement that the product contained “no refined sugars.”

Complaint. Ibarrola brought her action on her own behalf and on behalf of a “statewide and nationwide class of individuals who purchased any of Kind’s four identified Healthy Grains products.” The court dismissed Ibarrola’s first complaint which, in large part, rested on the assertion that Kind’s advertising was misleading because it referred to the primary sweetener in Vanilla Blueberry Clusters as evaporated cane juice as opposed to syrup. Ibarrola’s then filed her first amended complaint, which relied more heavily on the refined sugar claims and alleged common law fraud, unjust enrichment, and breach of express warranty. Kind moved to dismiss that complaint as well, asserting that the claims were not deceptive to a reasonable consumer, Ibarrola did not adequately allege an express warranty claim, and Ibarrola did not provide the required pre-litigation notice to bring an express warranty claim.

Refined. The court held that Ibarrola could not have been deceived as a matter of law because she failed to specify what she understood the statement “no refined sugars” to mean. The court reasoned that although Ibarrola alleged that “she thought that Vanilla Blueberry Clusters contained sugar cane in its natural state, not having gone through any process to refine it,” her argument was untenable because in its natural and totally unrefined state, sugar cane is a grass “not suitable for human consumption without further refinement.” The court held that given such a reality, no reasonable consumer could conclude that the sugar contained in Kind’s Healthy Grains products was still in its “natural, completely unrefined state.” The court went so far as to include two pictures of sugar cane within its opinion, in order to visually illustrate the fact that sugar cane—as it naturally exists—is indigestible.

The court concluded that the only reasonable reading of the term “refined” on the Kind packaging was to distinguish partially refined sugars—evaporated cane juice and molasses—from “fully refined sugars, like table sugar.” The court also held that Ibarrola failed to explain the inherent contradiction that she allegedly was deceived despite having read both the no refined sugar statement and the entire ingredient list before purchasing the product. Ultimately, the court held that Ibarrola’s complaint failed to allege that the Kind packaging contained any deceptive statements.

Other claims. The court dismissed but did not consider the merits of Ibarrola’s warranty claim on the grounds that she failed to give Kind timely notice of the claim in her first complaint. The court similarly dismissed Ibarrola’s claim for unjust enrichment, reasoning that absent a plausible allegation of deception, the unjust enrichment claim could not proceed.

The case number is No. 13 C 50377.

Attorneys: Nick Suciu, III (Barbat, Mansour & Suciu PLLC) for Rochelle Ibarrola. Dale J. Giali (Mayer Brown LLP) for Kind, LLC.

Companies: Kind, LLC

Cases: Advertising IllinoisNews