A KIND Result After Insufficient and Biased Consumer Perception Evidence


Consumer perception evidence is necessary for plaintiffs to survive summary judgment in a false advertising class action, but vacillating and flawed connections between the evidence and the key question of what a reasonable consumer would expect may lead to its exclusion.  The Second Circuit, in Bustamante v. KIND, LLC, 2024 WL 1917155 (2d Cir. May 2, 2024), provides an illustrative example of this, affirming the Southern District of New York’s exclusion of plaintiffs’ experts and grant of summary judgment to a snack foods manufacturer in a false advertising class action.

In Bustamante, Plaintiffs alleged they were deceived by the packaging of KIND snack bars as “All Natural” despite the inclusion of certain “non-natural” ingredients, and their lawsuit asserted warranty, unjust enrichment, negligent misrepresentation, and state consumer protection statute claims.  Although there were differing elements to Plaintiffs’ various claims, they were narrowed for the purposes of summary judgment to deception, materiality, and injury, with only the element of deception at issue on appeal.

The Court explained that to “establish deception” sufficient to survive summary judgment, Plaintiffs needed to “present admissible evidence how the challenged statement – ‘All Natural’ – tends to mislead reasonable consumers acting reasonably.”  The Court then reviewed the District Court’s conclusions that Plaintiffs had no such admissible evidence.

Plaintiffs relied on a survey expert and chemist to support their theories of liability.  Plaintiffs also argued that, even without expert support, they could provide evidence of consumer deception based on their Complaint allegations, Plaintiffs’ deposition testimony, internal KIND company documents, and ordinary dictionary definitions.  The district court disagreed that any of this “evidence” was relevant to the key question of what would a “reasonable consumer” understand “All Natural” to mean for a snack bar, and the Second Circuit agreed.

Plaintiffs’ Survey Expert

Plaintiffs’ survey expert conducted a consumer survey to examine whether consumers would find the snack bars’ labeling deceptive with regard to the “All Natural” claim.  Among a handful of other unrelated consumer perception questions, he asked the following two key questions:

  • Because of this descriptor [All Natural], what is your expectation for this product?
    1. Will NOT contain artificial and synthetic ingredients
    2. Will contain artificial and synthetic ingredients
    3. Not sure/No expectation
  • Because of this descriptor [All Natural], what is your expectation for this product?
    1. Is NOT made using these chemicals: Phosphoric Acid, Hexane, Potassium Hydroxide, Ascorbic Acid
    2. Is made using these chemicals: Phosphoric Acid, Hexane, Potassium Hydroxide, Ascorbic Acid
    3. Not sure/No expectation

The Second Circuit found the District Court did not abuse its discretion when it considered these two questions to be biased, leading, and “plainly designed to validate plaintiffs’ theory” of liability.  Plaintiffs made the usual “goes to the weight” argument, but the District Court and Second Circuit focused on the admissibility under the relevance requirements.  The Second Circuit cited its prior decisions regarding survey admissibility, noting (1) plaintiffs cannot rely on a survey based on “an obviously leading question [that] suggested its own answer,” and (2) a survey can “be so flawed” as to render it irrelevant.  It further agreed with the District Court that the survey provided “no useful information” to the question at issue and thus was inadmissible under Federal Rules of Evidence 401, 402, and 403.

Plaintiffs’ Expert Chemist

Plaintiffs also sought to use the chemist’s opinions to defeat KIND’s summary judgment motion.  This expert compared the KIND products’ ingredient list to a unique framework he developed of the ingredient’s origin, extent of processing from its natural form, and the ingredient’s final form.  Upon completion of this analysis, the expert chemist concluded whether each of the listed ingredients was “natural” under this developed framework.  In forming his opinions, this expert did not use the survey expert’s definition or those stated in the complaint.  He also did not physically examine the specific ingredients actually contained in the KIND products or the manner in which those products were actually manufactured.

The Second Circuit found the District Court did not abuse its discretion in precluding the chemist’s opinions.  His opinions focused on what it meant for a product to be “artificial” or “synthetic” under his framework but did not address the ultimate issue of how a reasonable consumer would understand such terms. The Court affirmed the District Court’s decision that this expert’s opinions were not relevant on this ultimate issue.

Other Evidence

Plaintiffs argued that even if the expert reports were excluded, there was still adequate evidence to raise a triable question of fact whether KIND’s products were “All Natural.”  The Second Circuit disagreed.

Plaintiffs first cited their definitions of “All Natural” in the amended complaint, but the Court concluded those were nothing more than unsupported assertions because the amended complaint was not verified.  Plaintiffs next cited their own deposition testimony for an understanding of the term “All Natural,” but the Second Circuit concluded it showed just the opposite – how contradictory and varied consumer expectations can be about the same term.  Third, Plaintiffs highlighted KIND’s own internal definition of the term “All Natural,” but again the Second Circuit determined there was no indication that such definition was the same as that of a reasonable consumer.  As a fourth option, Plaintiffs argued that the dictionary definition of the word “Natural” as “existing in or caused by nature, not made or caused by humankind” was sufficient evidence.  The Court found this definition was not relevant to answer the question of what consumers would expect from packaged snack bars made by humans.

Plaintiffs made a last-ditch argument that a precise definition of “All Natural” was unnecessary to defeat summary judgment.  The Second Circuit disagreed, highlighting Plaintiffs’ own scattered definitions of “All Natural”:  “[A] jury could hardly render a unanimous verdict when multiple, shifting, definitions of the key term have been offered by the party with the burden of proof.”  The Second Circuit affirmed summary judgment for KIND, finding Plaintiffs did not have evidence sufficient to demonstrate “what a reasonable consumer, acting reasonably, would expect of KIND products bearing the ‘All Natural’ label.”

Bustamante serves as a reminder that courts do (and should) take a hard look at the admissibility of consumer perception evidence at the summary judgment stage.  Poking holes in wavering theories and scrutinizing proffered expert opinions under both the amended Rule 702 requirements and Rules 401-403 relevance/helpfulness requirements can form insurmountable evidentiary hurdles for plaintiffs to overcome.

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About the Author: Erica K. Drew

Erica Drew is a Products Liability associate residing in our Indianapolis, Indiana, office. She defends pharmaceutical and medical device companies against claims involving allegations of strict liability, negligence, failure to warn or consumer protection act violations.

About the Author: Christine R. M. Kain

As a member of Faegre Drinker’s nationally ranked product liability practice, Minneapolis partner Christine Kain defends pharmaceutical, medical device, food and beverage, and other manufacturers in class actions, mass torts, product liability and consumer fraud cases.

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