Ever since genetically modified organisms were first introduced into agriculture and general food production, there has been no small amount of controversy regarding how their presence in particular foods is specifically denoted. (There are also staunch opponents to any GMO inclusion in foods whatsoever, but far less of them than those who want the presence of GMOs clearly explained on the packaging.) Since 2015, however, the makers of KIND bars have found themselves as the flashpoint of this issue, due to a lawsuit that continues to rage in court.
Food producers and distributors must continue to follow the course of this matter, as it could have ramifications for their future packaging. Additionally, this may make for an ideal opportunity to take stock of their label printers and equipment, to ensure that they are capable of producing fully compliant labels.
"There's been controversy regarding how GMO-enriched foods are labeled since they first hit store shelves."
Origins of the lawsuit
Writing for the National Law Review, attorneys Lawrence I. Weinstein and Jeffrey H. Warshafsky of the firm Proskauer Rose LLP explained that the lawsuit began over KIND bars' labeling as "healthy" foods. This would eventually snowball into class-action claims against numerous aspects of the snack company's marketing, which included a mention of being "all-natural" and eventually added "non-GMO" to the bars' wrappers. (The case Weinstein and Warshafsky focus on, which has served as precedent for others, has unfolded in courts within New York's Southern District.)
Even before the lawsuit – one of several – was filed, the Food and Drug Administration sent a warning letter to KIND in March 2015, saying that placing the word "healthy" on the packaging constituted a misleading statement. According to The Hill, company spokesperson Joe Cohen stood behind the phrasing. He said that although the nuts included in many of the available KIND bars exceeded the saturated fat content that the FDA deems worthy of labeling as "low-fat," other nutritional benefits afforded by nuts outweighed the presence of said fat.
About a year after the FDA warning and the numerous lawsuits that it sparked, the regulatory agency changed its position somewhat. According to Fortune, the FDA said KIND could use the term "healthy," so long as this word was deployed to depict KIND's "corporate philosophy," and not as a statement of fact regarding the bars' ingredients or health benefits.
The "non-GMO" issue
KIND bars' claim that they were "non-GMO" had been part of the New York lawsuit from the beginning. However, the plaintiffs did not specifically zero in on GMOs until the FDA changed its opinion on how the company used the word "healthy." After this, they dropped their challenge regarding that term and attempted to continue litigating what they believed to be misuse of the terms "all-natural" and "non-GMO." This approach met with mixed results.
"The USDA is on pace to issue formal guidance regarding GMO labeling by July 29, 2018."
Southern District Judge William H. Pauley imposed a stay upon the lawsuit against KIND March 26, 2018. The existing suit had been amended from an earlier complaint that Pauley dismissed entirely, on the grounds that it didn't sufficiently explain how KIND had falsely advertised its various claims. However, by staying the lawsuit, he gave it a second chance for validity – despite KIND's attempt to request another dismissal.
As of now, the outcome rests in the hands of the U.S. Department of Agriculture. While the USDA has fairly exhaustive guidance regarding what can and cannot be classified as "organic" or "made with organic ingredients," it doesn't currently impose any restrictions regarding GMO-enriched foods. It is currently on track to release formal regulations pertaining to GMOs by July 29, 2018, according to National Law Review. Pauley stated that once such government stipulations exist, he can come to a more informed ruling on whether KIND had misrepresented its products by calling them "non-GMO," and perhaps establish precedent that can be referred to in future cases.