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Woman files class action accusing Kind LLC of using deceptive marketing practices

By Andrew Thomason | Dec 13, 2013

A recently-filed federal class action suit claims a food company intentionally used deceptive practices to market and sell their products to health-conscious consumers.

After buying Kind Healthy Grains Vanilla Blueberry Clusters with Flax Seeds on two occasions, Rochelle Ibarrola filed the suit against New York-based Kind LLC, which manufactures, distributes and sells various food products.

Attorneys Eric Holland and R. Seth Crompton of Holland, Groves, Schneller & Stolze, Jordan Chaikin of Parker Waichman, and Alyson Oliver and Nick Suciu III of the Oliver Law Group filed the suit Nov. 26 in Chicago's federal court on behalf of Ibarrola, a national class and an Illinois subclass.

Ibarrola earlier this year read the product label and ingredient list of the clusters to decide whether she wanted buy them, according to the complaint.

She claims the product label stated that there were no secret ingredients, no refined sugars and other claims targeted at the health conscious. Additionally, evaporated cane juice was listed as one of the ingredients.

Similar labeling can be found on at least six other products distributed and sold by Kind, the suit asserts.

After being satisfied with the product’s ingredients, Ibarrola bought Kind's clusters on two occasions. Ibarrola claims she would not have purchased the food if she had known that evaporated cane juice was in reality sugar and/or syrup.

The complaint alleges that Kind intentionally misled consumers through its marketing, and attempted to hide its use of sugar and/or syrup in its products.

“Defendants represented that their Products contain ‘ingredients you can see and pronounce’, ‘no secret ingredients’, and ‘no refined sugars’, which are all material misrepresentations in light of the fact that evaporated cane juice is simply a syrup or sugar,” the suit states.

The use of “evaporated cane juice” on labels is a practice that in general is frowned upon by regulators.

Ibarrola highlighted a 2009 U.S. Food and Drug Administration Guidance for Industry document that states the “FDA’s current policy is that sweeteners derived from sugar cane syrup should not be declared as “evaporated cane juice” because that term falsely suggests that the sweeteners are juice. … FDA considers such representations to be false and misleading.”

The claim that Kind's vanilla blueberry clusters were made with no refined sugars was misleading and false, Ibarrola asserts.

“Although Evaporated Cane Juice is less refined than regular white sugar, it is nonetheless refined, making Defendant’s claim “No Refined Sugars” false and misleading,” the suit alleges.

Ibarroloa’s suits includes counts for common law fraud, unjust enrichment and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act.

She is seeking damages for herself, other members of a proposed class and Illinois subclass, actual damages, compensatory, consequential and special damages in amounts to be determined at trial, and the maximum punitive damages the law allows.

She is also seeking restitution, including disgorgement of all profits Kind received because of their alleged wrongful conduct.

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