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In re KIND LLC "Healthy & All Natural" Litig.

United States District Court for the Southern District of New York

March 2, 2018, Decided

15-MD-2645 (WHP); 15-MC-2645 (WHP)


 [*459]  OPINION & ORDER

WILLIAM H. PAULEY III, United States District Judge:

Defendants KIND LLC and KIND Management, Inc. (together, "KIND")  [*460]  seek dismissal of Plaintiffs' Amended Consolidated Class Action Complaint (the "Amended Complaint"). Plaintiffs allege that KIND deceptively marketed its products as "natural" and "non-GMO" even though they contain synthetic and genetically modified ingredients. This Court previously stayed the "natural" [**4]  claim. KIND now seeks to dismiss or stay the "non-GMO" claim.

Separately, Plaintiffs move to lift the stay of the "natural" claim. They assert that the Federal Drug Administration's ("FDA") rulemaking process to define the term "natural" has stalled since May 2016 when the agency closed its notice and comment period. Plaintiffs are eager to forge ahead on their "natural" claim in tandem with their "non-GMO" claim, and contend that indefinitely staying the "natural" claim will result in undue delay and prejudice.

For the reasons that follow, KIND's motion to dismiss or stay the "non-GMO" claim is granted in part and denied in part, and Plaintiffs' motion to lift the stay on the "natural" claim is denied without prejudice.


I. Relevant Procedural History

A. Motion to Dismiss the Original Complaint

On September 15, 2016, this Court granted in part KIND's motion to dismiss the original complaint. See In re KIND LLC "Healthy and All Natural" Litig., 209 F. Supp. 3d 689 (S.D.N.Y. 2016). As an initial matter, this Court disposed of the original complaint's "healthy" claim after Plaintiffs stipulated to dismissing it. (ECF No. 74.) Invoking the primary jurisdiction doctrine, this Court stayed the "all natural" claim, finding that [**5]  the FDA's rulemaking process should run its course before allowing that claim to proceed here. Finally, this Court dismissed without prejudice Plaintiff's "non-GMO" claim on the basis that it was insufficiently pled. Despite largely granting KIND's motion, this Court provided Plaintiffs with a further opportunity to re-plead their "non-GMO" claim.

B. FDA Rulemaking Process

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287 F. Supp. 3d 457 *; 2018 U.S. Dist. LEXIS 34595 **; 2018 WL 1156009


Prior History: In re Kind LLC "All Natural" Litig., 2015 U.S. Dist. LEXIS 109441 (J.P.M.L., Aug. 10, 2015)


FDA, labeling, food, non-GMO, products, ingredients, genetically, consumer, executive order, Plaintiffs', modified, crops, regulation, misleading, motion to dismiss, National GMO Standard Law, preemption, lift, bioengineered, allegations, deception, parties, courts, rulemaking, doctrine of primary jurisdiction, genetic engineering, preempted, directs, Appropriations, formulate

Civil Procedure, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Pleadings, Complaints, Requirements for Complaint, Business & Corporate Compliance, Governments, Agriculture & Food, Product Quality, Federal & State Interrelationships, Federal Common Law, Preemption, Constitutional Law, Supremacy Clause, Federal Preemption, Governments, State & Territorial Governments, Administrative Law, Separation of Powers, Primary Jurisdiction, Antitrust & Trade Law, Consumer Protection, Deceptive Labeling & Packaging, False Advertising, State Regulation, Contracts Law, Remedies, Equitable Relief, Quantum Meruit, Torts, Products Liability, Theories of Liability, Breach of Warranty, Fraud & Misrepresentation, Negligent Misrepresentation, Elements, Judicial Officers, Judges, Discretionary Powers, Judgments, Entry of Judgments, Stays of Judgments