Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Ill.: Court has no sweet tooth for class action suit, (Jul 16, 2014)

By Lisa A. Weder

Rochelle Ibarrola filed a putative class action suit against Kind, LLC (Kind), a food manufacturer, under the Illinois Consumer Fraud and Deceptive Business Practices Act ("Illinois Act") and Illinois common law. Ibarrola claimed that six products misrepresented the use of evaporated cane juice on its food labels. The federal district court in Chicago granted the manufacturer's motion to entirely dismiss Ibarrola's claims (Ibarrola v. Kind, July 14, 2014, Ellis, S.).

Background. Kind makes six “Kind Healthy Grains” products, each properly labeled with required nutrition and ingredient information. All six products contain evaporated cane juice, a sweetener made from sugar cane syrup. Kind's products proudly touted that there were no refined sugars, that it used easy-to-understand ingredients, and that it did not hide ingredients. Its Vanilla Blueberry Clusters with Flax Seeds (Blueberry Clusters) product also noted it used molasses, also made from sugar cane. The Clusters product listed 5 grams of sugars per 29 gram serving in its nutritional information.

Ibarrola bought Blueberry Clusters at least twice during 2013 and alleged that she fully read the label, but did not understand that evaporated cane juice was syrup made from sugar cane. She claimed that the product deceived her as she would not have bought the product if she had realized what evaporated cane juice meant. Ibarrola cited a website that provided information on evaporated cane juice as "less refined, so it remains a light tan color and retains some of the nutrients found in sugar cane juice." She thusly alleged that the evaporated cane juice is actually refined sugar and that Kind intended to deceive health-conscious consumers with its claims that there were no refined sugars in its products. She filed complaints of common law fraud, unjust enrichment, and a violation of the Illinois Act against Kind.

What the FDA said. In 2009, the FDA issued a draft guidance stating that its “current policy is that sweeteners derived from sugar cane syrup should not be declared ‘evaporated cane juice’ because that term falsely suggests that sweeteners are juice,” and that ingredients should be called by their common names. However, the FDA added that these were nonbinding recommendations. In 2014, the FDA submitted a notice for comment stating that it had not determined the common or usual name for evaporated cane juice and has yet to make that determination.

Kind's position. Kind moved to dismiss these allegations, arguing that Ibarrola never claimed she was injured by using the product, which is required to maintain this allegation; that she inadequately stated or filed a claim, giving no plausible arguments that she and others were deceived; and that the FDA has primary jurisdiction over Ibarrola’s claims.

Ruling. The court considered Federal Rule of Civil Procedure 12(b)(6)’s plausibility and pleading of factual content requirements in Kind's motion to dismiss Ibarrola's allegations, stating that the rule requires Ibarrola to “state with particularity the circumstances constituting fraud.” Ibarrola did not indicate what she thought “evaporated cane juice” meant when she read it on the Blueberry Clusters’ packaging and did not argue that the nutritional value was incorrect. Ibarrola also failed to claim that she would have purchased a less expensive product had she known that the Blueberry Clusters contained cane syrup.

The court reasoned that Ibarrola did not provide sufficient standing—a jurisdictional requirement in order for the court to hear a case—or sufficient proof that consuming the Blueberry Clusters caused her harm. In response to her allegations under the Illinois Act, the court ruled she did not fulfill the Illinois Acts requirements. She did not explain how she was deceived, and without that, her unjust enrichment claim must fail. The court granted Kind's motion to dismiss Ibarrola's claims in their entirety.

The case number is: 13 C 50377

Attorneys: Nick Suciu, III (Oliver Law Group PC) for Rochelle Ibarrola. Dale J. Giali (Mayer Brown LLP) for Kind, LLC.

Companies: Kind, LLC

Cases: Advertising StateUnfairTradePractices IllinoisNews