However, food law attorneys contacted by FoodNavigator-USA told us they were a little surprised that a company of the size and profile of KIND had not had its labels reviewed more carefully by lawyers, given that the issues raised by the FDA involved basic breaches of the conditions of use for making nutrient content claims.
However, they also noted some unusual aspects to the FDA's letter, and said there are some "grey areas" for firms to navigate when deciding what to say on pack.
So what attracted the FDA’s attention?
In its March 17 warning letter, the FDA highlighted multiple issues, including:
‘Healthy’ claims (eg. “healthy and tasty, convenient and wholesome”): The FDA says selected KIND bars “do not meet the requirements for use of the nutrient content claim ‘healthy’,” as they contain more than 1g of saturated fat per Reference Amount Customarily Consumed (one 40g bar) and more than 15% of their calories come from saturated fat.
+ (plus) claims (eg. “+ antioxidants”): The FDA says selected KIND bars “do not comply with the requirements governing the use of this term” because they do not contain at least 10% or more of the RDI for the nutrients in question per RACC than an appropriate reference food (among other things).
Antioxidant claims (“antioxidant- rich dark chocolate”... on the KIND website): The use of the word “rich” turns this into a nutrient content claim (equivalent of saying ‘high’ in or an ‘excellent source’ of – which requires 20% of the RDI for nutrients with recognized antioxidant activity) says the FDA. However, the KIND bar in question (Peanut Butter Dark Chocolate + Protein) does not meet the conditions of use: “This product contains 15% of the daily value of vitamin E and 0% of vitamin C and vitamin A. Therefore it does not qualify for a 'rich in' claim.”
Fiber claims (“Good Source of Fiber”): KIND makes this claim on selected products without including the required statement disclosing that the food is not low in total fat in immediate proximity to the fiber claim.
Trans fat claims (“no trans fat”): KIND labels fail to include the levels of monounsaturated fatty acids and polyunsaturated fatty acids in the nutrition information as required.
Protein claims (“+ protein”… “plus 7g protein”): The KIND label “fails to include the percent daily value for protein as required when the label bears a nutrient content claim for protein,” says the FDA.
Company address: Selected KIND bars are misbranded because the company address on the label does not include the street address, adds the FDA.
Allergen labeling: While soy lecithin is listed in the ingredients list of selected KIND bars, soy is not listed in the allergens box (Contains….). This box also lists ‘dairy’ instead of ‘milk’, and ‘tree nuts’ instead of the names of the specific tree nuts in question, as required by law, says the FDA.
Ingredients list (‘non GMO glucose’): The ingredient statement on selected KIND bars declares ‘non GMO glucose’. But “this is not an appropriate common or usual name for glucose syrup or dried glucose syrup”, notes the FDA.
KIND: ‘We’re moving quickly to comply with the FDA’s request.’
Asked whether KIND had had its labels reviewed by attorneys given the long list of apparent errors, Joe Cohen, SVP of Communications at KIND told us: “We are currently working with counsel and we rely on a team of operations and regulatory professionals and we continue to grow that team.”
While KIND is taking the warning letter very seriously, it stressed that this is not about safety or quality or any elaborate consumer deception, but the technical requirements governing the use of certain label claims.
Cohen added: “Our team at KIND is fully committed to working alongside the FDA, and we’re moving quickly to comply with its request.”
In a note on its website, KIND said: “We’ve built a brand centered around creating wholesome and great tasting snacks. While this will never change, some of our products do not follow the FDA regulatory standard for using the word 'healthy' on a label, which says, among other things, that a snack food can’t have more than 3g of total fat or 1g of saturated fat per serving.
“Nuts, key ingredients in many of our snacks and one of the things that make fans love our bars, contain nutritious fats that exceed the amount allowed under the FDA’s standard. This is similar to other foods that do not meet the standard for use of the term healthy, but are generally considered to be good for you like avocados, salmon and eggs.”
Bruce Silverglade: ‘A routine label review may not be sufficient to catch errors absent a more in-depth legal analysis.’
Bruce Silverglade, principal at law firm Olsson Frank Weeda Terman Matz PC, told FoodNavigator-USA that the letter should serve as a cautionary tale:
“FDA’s warning letter should be a reminder to all companies that, regardless of size, they are subject to FDA scrutiny. FDA’s nutrition and health claim regulations are complex – grey areas exist and a routine label review may not be sufficient to catch errors absent a more in-depth legal analysis."
As for the 'healthy' claim, he added: “There may have been a way for KIND to petition the FDA for an exemption from the Agency’s regulation on 'healthy' claims, but to take advantage of that approach, companies should be proactive and not wait for the FDA to contact them in an adversarial environment.”
Asked whether he anticipated consumed litigation would follow, he said: “FDA warning letters often encourage class action cases under state consumer protection laws against companies making the same or similar claims as the recipient of the FDA correspondence. Plaintiffs cite the FDA warning letter as evidence that the defendant’s food label violates state law.”
Attorney: There are a few unusual aspects to the FDA's warning letter
Another food law attorney told us that there were "a few unusual aspects to the FDA's warning letter to KIND", including the fact that it appears to be attacking a brand name (KIND Plus) as a nutrient content claim and the fact that it also homed in on 'healthy' claims made on the KIND website (which is seen as a extension of the product label as the web address is listed on pack).
The attorney added: "The FDA also states that where companies claim 'no trans fat' they must include the levels of mono- and polyunsaturated fatty acids in the Nutrition Facts panel. Prior FDA warning letters on trans fat claims have not gone that far... It is likely that additional, similar warning letters will follow. Companies would be well advised to take note and conduct thorough labeling and marketing reviews."
Kristen Polovoy of Montgomery, McCracken, Walker & Rhoads LLP, meanwhile, told us that the letter “underscores the absolute necessity of a principle I've been advocating to clients and in seminars for years now: make sure your legal department and your advertising team are communicating with each other.”
Read the FDA warning letter HERE and click on the link below to read about KIND's 'no refined sugar' claims: