JADE BURNETT v. KIND LLC (2026)

ORDER GRANTING MOTION TO DISMISS

Plaintiff challenges the following statements made on the labels of defendant KIND LLC's product KIND HEALTHY GRAINS Dark Chocolate Clusters (“Product”) as misleading.

Front Label Statements:

• “INGREDIENTS YOU CAN SEE AND PRONOUNCE”

• “KIND HEALTHY GRAINS”

• “MADE WITH 5 SUPER GRAINS”

• “NO GENETICALLY ENGINEERED INGREDIENTS”

• “100% WHOLE GRAINS 34g PER SERVING”

• “GLUTEN FREE”

And Back Label Statements:

• “MADE WITH 5 SUPER GRAINS KIND Healthy Grains Clusters pack a nutritious punch of protein and a delightful crunch! Made with a blend of whole super grains – oats, millet, buckwheat, amaranth, and quinoa ․ “

• “34g WHOLE GRAINS/LOW SODIUM/GOOD SOURCE OF PROTEIN/GOOD SOURCE OF FIBER”

• “do the kind thing for your body, your taste buds & your world” Welcome to the KIND community! Here at KIND, we think a little differently. Instead of “or” we say “and.” We choose healthy and tasty, convenient and wholesome, economically sustainable and socially impactful. From the snacks and foods we make, to the way we work, live and give back, our goal is to make KIND not just a brand, but also a state of mind and community to make the world a little kinder․”

Compl. ¶¶ 3, 4.

Plaintiff alleges that these statements are misleading because her testing showed that lead is present in the Product, which is not disclosed anywhere on the Product's label. Id. ¶ 7. According to plaintiff's independent testing, “a single 65 gram service of the Products contains 2.34 mcg of lead, which is more than four times the California Proposition 65 Maximum Allowable Dose Level (‘MADL’) for reproductive toxicity of 0.5 micrograms of lead per day.” Id. ¶ 7. Plaintiff also asserts that there is no level of lead exposure that is known to be without harmful effects. Id. ¶ 8.

As a result, plaintiff alleges claims on behalf of a class of California citizens under: (1) California's Unfair Competition Law (“UCL,” Cal. Bus. & Prof. Code § 17200 et seq.) for fraudulent, unfair, and illegal business practices; (2) deceptive advertising practices (“FAL,” Cal. Bus. & Prof. Code § 17500 et seq); (3) California Consumers Legal Remedies Act (“CLRA,” Cal. Civ. Code § 1750 et seq.); (4) breach of express warranty; and (5) quasi-contract. KIND moves to dismiss.

DISCUSSION

I. CONSUMER DECEPTION

Plaintiff's consumer protection claims (under the UCL, FAL, CLRA) and warranty claims all require plaintiff to plead plausible facts that a “significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled” by the challenged representations on the Product's label. Becerra v. Dr Pepper/Seven Up, Inc., 945 F.3d 1225, 1229 (9th Cir. 2019) (quoting Lavie v. Procter & Gamble Co., 129 Cal. Rptr. 2d 486 at 492). KIND argues that plaintiff has failed to and cannot plausibly allege her consumer deception claims, or that she is entitled to injunctive relief or unjust enrichment based on those claims, because the statements she relies on from the Product's label are true and in any event do not convey anything that would mislead consumers even if the Product contained lead. It also argues that the allegations regarding harm from lead are insufficient. KIND points to a consent judgment, entered as a result of state court litigation against chocolate manufacturers, that set standards specific for chocolate above the MADL relied on by plaintiff.¹ It also argues that if the lower MADL standard identified by plaintiff is relevant, plaintiff cannot plausibly allege harm because the MADL standard impacts when notice must be provided to consumers about lead content and are not safety standards. Motion (Dkt. No. 11) at 5-9.

Turning to the statements at issue, KIND asserts that the Front Label statements are factually accurate and wholly unconnected to the attribute attacked – the lead level – and cannot as a matter of law be deceptive. Truth, however, is not a defense to a misleading consumer deception claim. See Krommenhock v. Post Foods, LLC, 334 F.R.D. 552, 569 (N.D. Cal. 2020) (relying on Williams v. Gerber Products Co., 552 F.3d 934, 938 (9th Cir. 2008)). Plaintiff counters despite the truth of the Front Label Statements, they still mislead reasonable consumers into thinking the Product is “healthy” when it is not because of the Product's lead content.

Looking to the Back Label statements, defendants are correct that two of the three statements plaintiff relies from the back of the label – not including the statements “34g WHOLE GRAINS/LOW SODIUM/GOOD SOURCE OF PROTEIN/GOOD SOURCE OF FIBER” – are puffery or non-actionable subjective expressions that no reasonable consumer would interpret as making a “verifiable” claim regarding health or otherwise. See, e.g., Levit v. Nature's Bakery, LLC, 767 F. Supp. 3d 955, 964-66 (N.D. Cal. 2025) (statements “what we bake in is as important as what we leave out,” “simple snacks made with real ingredients,” “best fuel for active ․ lives,” are “unmeasurable, subjective claims ․ on which no reasonable buyer would rely”). That does not make those Back Label statements irrelevant, however. Potentially actionable statements plaintiff identified from the front label must be considered in the context of the rest of the label – including the Back Label statements. See, e.g., Barton v. Kimberly-Clark Corp., 2025 WL 2345228, at *4 (S.D. Cal. Aug. 13, 2025); see also Gerber, 552 F.3d at 938.

That leaves the question whether the Front Label truthful statements and the “34g WHOLE GRAINS/LOW SODIUM/GOOD SOURCE OF PROTEIN/GOOD SOURCE OF FIBER” from the Back Label, considered in the context of the label as a whole, are deceptive because they promise the Product is one thing – healthy – when it is not because of the lead content. Plaintiff's complaint expressly identifies the representations that are likely to mislead consumers are that: “the Products provide ‘HEALTHY GRAINS’ and ‘SUPER GRAINS’ that are ‘kind ․ for your body.’ ” Compl. ¶ 5.

The problem with this case – as opposed to the many other product labelling cases I and others in this District have decided – is that there are very few statements that imply the Product itself is “healthy” or “wholesome.” As noted above, “healthy” is only used three times, two of which are linked to the Product name “KIND HEALTHY GRAINS” and one puffery comment about the company's approach; “We choose healthy and tasty.” And the statements plaintiff identifies that she claims mislead consumers about the healthiness of the product are related solely to the grains in the Product. There are no representations that the snack Product is healthy or nutritious or generally good for a consumer; only that the grains are healthy.

The cases relied on by plaintiffs had far more specific and more direct statements that the product was nutritious and healthy for human or pet consumption despite the presence of unhealthy levels of toxins or additives. See, e.g., Jeruchim v. J.M. Smucker Co., No. 22-CV-06913-WHO, 2026 WL 178565, at *2 (N.D. Cal. Jan. 22, 2026) (packaging made a number of express statements implying healthy product including “100% Complete & Balanced For Adult Maintenance,” “100% Complete and Balanced Nutrition for Adult Cats,” “balanced nourishment,” “all essential vitamins and minerals,” antioxidants to “help support a long and healthy life”); Humphrey v. J.M. Smucker Co., 2023 WL 3592093, at *7 (N.D. Cal. May 22, 2023) (“balanced nourishment in every bite” “indoor health” and “100% Complete and Balanced Nutrition”); Zeiger v. WellPet LLC, 304 F. Supp. 3d 837, 842 (N.D. Cal. 2018) (statements that product had “Unrivaled Quality Standards,” “Optimal Health” “with Nothing in Excess and Everything in Balance,” “natural, safe and pure,” and quality assurance representations about testing and purity of ingredients could be misleading given alleged presence of “material and significant levels of arsenic and lead” and BPA); Krystofiak v. BellRing Brands, Inc., 737 F. Supp. 3d 782, 795 (N.D. Cal. 2024) (representations that product was “a healthy snack,” “with nutrients for ENERGY & IMMUNE health support” or “with nutrients for IMMUNE HEALTH support,” “NO ARTIFICIAL GROWTH HORMONES used to produce (on some flavors)” could be misleading given undisclosed presence of lead where allegation made the lead harms immune system); see also Mattero v. Costco Wholesale Corp., 336 F. Supp. 3d 1109, 1113 (N.D. Cal. 2018) (statements that detergent was “environmentally responsible,” made from “naturally derived ingredients,” are “recognized for safer chemistry,” are “safer for the planet,” and are made with a “biodegradable formula,” made along with “imagery – icons resembling recycling symbols, water drops, leaves, and a central image of a leaf floating in pristine water” were plausible suggestive of an “environmentally responsible product” and arguably false because products “contain unnatural, harmful, and toxic chemical ingredients”); Barton v. Kimberly-Clark Corp., No. 3:24-CV-01337-GPC-KSC, 2025 WL 2345228, at *1 (S.D. Cal. Aug. 13, 2025) (“no harsh ingredients,” “elemental chlorine free rayon,” “pesticide free,” “made without fragrance,” “gynecologist tested,” “BPA free,” misleading in light of the presence of lead; “the Representations here contain a myriad of claims which, when read in context, are much more conceptually related to the idea that the Products are free from harmful substances, like lead.”).²

Not only are there very few representations that invoke health in this snack Product and none that invoke nutrition, or purity, or testing/quality, the claims that are alleged are narrow. They are expressly tied to the grains being healthy. But there is nothing in the Complaint that indicates it is the grains that contain the lead in the Product. Indeed, defendant asserts – as supported by the request for judicial notice of the Proposition 65 Consent Judgment endorsed by the California Attorney General and both sides' reliance on cases alleging the presence of lead due to chocolate content – it is the dark chocolate that might be responsible for the lead levels in the Product, not the grains.

The cases identified above are largely inapposite as they contain broader promises of a healthy product, promises related to the nutrition or quality of the products, or the testing of the products that would plausibly be contradicted by the presence of undisclosed toxins or additives in the products. At base, this is case about whether or not a snack product has “Healthy Grains.” If plaintiff wishes to proceed with the affirmative deceptive theory that the grains are not, in fact, healthy, she must plausibly allege facts supporting that the grains in the Product are not healthy either due to the presence of lead in the grains or otherwise. At present, the allegations are not plausible. The deception claims are DISMISSED with leave to amend.³

II. OMISSIONS CLAIMS

“Omissions may be the basis of claims under California consumer protection[ ] laws, but ‘to be actionable the omission must be contrary to a representation actually made by the defendant, or an omission of a fact the defendant was obliged to disclose.’ ” Hodsdon v. Mars, Inc., 891 F.3d 857, 861 (9th Cir. 2018) (quoting Daugherty v. Am. Honda Motor Co., 144 Cal. App. 4th 824, 835, 51 Cal.Rptr.3d 118 (2006)). With regards to the second theory, a “defendant only has a duty to disclose when either (1) the defect at issue relates to an unreasonable safety hazard or (2) the defect is material, ‘central to the product's function,’ and the plaintiff alleges one of the four LiMandri factors.” Hayden v. Bob's Red Mill Nat. Foods, Inc., No. 23-CV-03862-HSG, 2024 WL 1643696, at *9 (N.D. Cal. Apr. 16, 2024) (quoting Hammerling v. Google LLC, 615 F. Supp. 3d 1069, 1085 (N.D. Cal. 2022)). The LiMandri factors are “(1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts.” LiMandri v. Judkins, 52 Cal. App. 4th 326, 336, 60 Cal.Rptr.2d 539 (1997).

Defendant argues that plaintiff cannot show a duty requiring KIND to affirmatively disclose the presence of lead in the Product because that claim is foreclosed by Proposition 65 and the Consent Judgment governing chocolate. Mot. at 12-15. Plaintiff affirms in her Opposition that she is not bringing a Proposition 65 claim or claiming a duty to disclose based on the presence or absence of lead in the Product. Oppo. at 21.⁴ Instead, her omissions claim is premised on the first omission theory; the Product's label statements imply the Product is “healthy” or good for you, when it is not given the level of lead.

In order to state this type of omission claim, the representations made by KIND must be “sufficiently contradictory” to the alleged reality of the product based on the alleged presence of lead in the Product. See Jeruchim v. J.M. Smucker Co., 2026 WL 178565, at *12 (“plaintiffs' claim that the alleged presence of PFAS is not contradictory enough to the ‘nutritious’ label” but was sufficiently contradictory to “100% healthy” representation); LeGrand v. Abbott Laboratories, 655 F. Supp. 3d 871 (N.D. Cal. 2023) (product packaging noted that the products provided “Complete, Balanced Nutrition,” and were for “everyday health,” sufficiently contradictory given allegations that drinks were “harmful to overall health based on their added sugar content”); Levit, LLC, 767 F. Supp. 3d at 969 (dismissing omissions claim based as claim that sugar levels in product created an “increased risk of serious chronic disease or death” was not contrary to the representation the product was “wholesome”).

The problem here is the same as in those cases. The failure to disclose the presence of lead is not contrary to any representation made by KIND regarding its ingredients.⁵ The omissions-based claims are likewise DISMISSED with leave to amend.⁶

CONCLUSION

Defendant's motion to dismiss is GRANTED. Plaintiff may file an amended complaint within twenty (20) days of the date of this Order.

IT IS SO ORDERED.

FOOTNOTES

1.   Defendant asks me to take judicial notice as a court record of a California Attorney General-approved Consent Judgment, which set a MADL for lead in chocolate at a higher rate than the MADL relied on by plaintiff. See As You Sow v. Trader Joe's Co., No. CGC-15-548791 (Feb. 15, 2018), Declaration of Keri E. Borders, Ex. A) (“Consent Judgment”); see also Mot. at 3 n.1. Plaintiff responds that the Consent Judgment is irrelevant to this case as no Proposition 65 claim is made. Oppo. at 7. The request for judicial notice is GRANTED. However, I agree that for purposes of this case, what MADL levels were set by the Consent Judgment and why, are issues that need not be addressed or resolved.

2.   Other claims in cases concerning the presence of heavy metals in chocolate products likewise contain more express claims regarding the products' “purity” and “quality” that are not present here. See In re Theos Dark Chocolate Litig., 750 F. Supp. 3d 1069, 1088 (N.D. Cal. 2024) (label statements about chocolate bars, including “Pure,” contain “quality cacao beans,” and “pay[s] higher prices for quality cacao beans” are actionable in light of lead, cadmium and arsenic).

3.   Defendant makes a separate argument to undercut the plausibility of Burnett's reliance on the alleged health statements. KIND argues that because Burnett knows there is lead in chocolate – based on her status as a plaintiff in Burnett v. Walmart, Inc., 821 F. Supp. 3d 1036 (N.D. Cal. 2025) a case that challenged the presence of lead in hot chocolate products and affirmatively relied on the Consent Judgment adopting higher MADL standards than she pleads in this case – Burnett cannot have possibly relied on any health claims KIND made on the label of the Product and her claims must be dismissed. Mot. at 11-12. Given that the misrepresentation claims are dismissed with leave to amend, and it is unclear whether Burnett will be able to plead a misrepresentation claim based on lead from the “healthy grains,” I need not resolve this issue now.

4.   Plaintiff may rely on the Proposition 65 MADLs without turning her case into a Proposition 65 claim. See, e.g., Kimberly-Clark Corp., Rodriguez v. Mondelez Glob. LLC, 703 F. Supp. 3d 1191, 1207 (S.D. Cal. 2023 (“Defendant's argument that the complaint should be dismissed for improperly relying on an underlying Proposition 65 violation fails because Plaintiffs' claims are independent of Proposition 65.”); In re Theos Dark Chocolate Litig., 750 F. Supp. 3d 1069, 1086 (N.D. Cal. 2024 (“Since Plaintiffs' claims are independent of Proposition 65, the CJ has no preclusive effect on this matter.”).

5.   There are no allegations, for example, that the Product are “100% healthy” despite containing harmful toxins and additives. See Jeruchim v. J.M. Smucker Co., No. 22-CV-06913-WHO, 2026 WL 178565, at *12 (N.D. Cal. Jan. 22, 2026).

6.   Having dismissed plaintiff's substantive claims – based on affirmative representations and omissions – I will not separately address defendant's challenge to plaintiff's Article III standing to seek injunctive relief or her entitlement to unjust enrichment under a quasi-contract theory.

William H. Orrick United States District Judge