United States District Court, N.D. Illinois, Eastern Division
ROCHELLE IBARROLA, on behalf of herself and all others similarly situated, Plaintiff,
KIND, LLC, Defendant.
OPINION AND ORDER
SARA L. ELLIS, District Judge.
Plaintiff Rochelle Ibarrola brings this putative class action against Kind, LLC, a maker of food products. Ibarrola purchased one of Kind's products-Vanilla Blueberry Clusters with Flax Seeds ("Vanilla Blueberry Clusters")-on at least two occasions in 2013. Ibarrola brings this suit pursuant to the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 Ill. Comp. Stat. 505/1 et seq. ("ICFA"), and Illinois common law, alleging that Kind misrepresented the ingredients in Vanilla Blueberry Clusters and five other products. Ibarrola seeks to represent anyone who purchased any of Kind's six identified products in Illinois and around the United States.
Ibarrola alleges that the label on the Vanilla Blueberry Clusters deceived her and others primarily because it lists "evaporated cane juice" as an ingredient. Evaporated cane juice is another name for sugar cane syrup. Kind moves to dismiss the Complaint on three grounds: that Ibarrola has not properly alleged an injury, a requirement to demonstrate standing; that Ibarrola fails to state a claim, as she does not plausibly allege that she was deceived; and that the Food and Drug Administration ("FDA") has primary jurisdiction over Ibarrola's claims. Because Ibarrola does not adequately allege that she was injured or deceived, the Court grants Kind's motion to dismiss .
Kind produces at least six products under the label "Kind Healthy Grains, " including Vanilla Blueberry Clusters. The packaging of each item includes federally mandated nutrition and ingredient information. Kind lists evaporated cane juice as an ingredient in each of the six Healthy Grains products. Evaporated cane juice is a sweetener derived from sugar cane syrup. The products' packages represent that the products contain "no refined sugars" and "ingredients you can see and pronounce." On Kind's website, it states that its products contain "no secret ingredients." In addition to evaporated cane juice, the packaging of Vanilla Blueberry Clusters lists molasses as an ingredient. Molasses is a sweetener derived from sugar cane. The nutrition label on Vanilla Blueberry Clusters also makes clear that the product contain 5 grams of sugars per 29 gram serving.
On two occasions in 2013, Ibarrola, a health conscious consumer, purchased Vanilla Blueberry Clusters from a store after reading the entire product label. At the time of purchase, Ibarrola did not realize that evaporated cane juice was syrup derived from sugar cane. Ibarrola states that but for the misleading statements on the product's packaging, she would not have purchased the Vanilla Blueberry Clusters.
In support of her claim that Kind falsely represents that its products do not contain any refined sugars, Ibarrola quotes an article from the Livestrong website, which states: "Evaporated cane juice is harvested from sugar cane also. It is less refined, so it remains a light tan color and retains some of the nutrients found in sugar cane juice." Doc. 1 ¶ 38. From this, Ibarrola alleges that evaporated cane juice is, in fact, a refined sugar and that therefore Kind deceives customers when it advertises that its products contain no refined sugars.
In October of 2009, the FDA issued "DRAFT Guidance for Industry" related to the identification of evaporated cane juice as an ingredient on food labels. The FDA stated 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." Doc. 1 ¶ 27. The FDA went on to state that "[i]ngredients required to be declared on the label or labeling of a food... shall be listed by common or usual name." Id. "Sugar cane products with common or usual names defined by regulation are sugar and cane sirup [or syrup]." Id. (citation omitted). The FDA also made clear that its 2009 draft guidance "Contains Nonbinding Recommendations." Draft Guidance for Industry: Ingredients Declared as Evaporated Cane Juice, 2009 WL 3288507, at *1 (F.D.A. Oct. 1, 2009).
On March 5, 2014, the FDA submitted a notice requesting additional comments regarding evaporated cane juice. The notice stated:
We have not reached a final decision on the common or usual name for this ingredient and are reopening the comment period to request further comments, data, and information about the basic nature and characterizing properties of the ingredient sometimes declared as "evaporated cane juice, " how this ingredient is produced, and how it compares with other sweeteners.
After reviewing the comments received, we intend to revise the draft guidance, if appropriate, and issue it in final form, in accordance with FDA's good guidance practice regulations in 21 CFR 10.115.
79 Fed. Reg. 12507-08, Notice Reopening Comment Period.
To date, the FDA has not issued any further guidance with regard to ...