Class action over 'wholesome' marketing of sugar-heavy fig bars can proceed

(CN) — A federal judge on Friday allowed a class action against snack bar company Nature’s Bakery to proceed, finding consumers could plausibly be misled by the company’s claims that its fig bars are “wholesome” when they contain high levels of added sugar.

U.S. District Judge Jon Tigar largely denied Nature’s Bakery’s motion to dismiss a class action by lead plaintiff Andrew Levit, who claims in a May 2024 lawsuit the company deceptively markets its fig bars as healthy snacks despite containing 19 grams of total sugar per serving, with 14 grams being added sugars — representing 28% of the product’s total calories.

Levit challenges statements on Nature’s Bakery’s packaging proclaiming the snack bar has “Wholesome Baked In,” and is “equal parts wholesome and delicious,” and “the best fuel for active lives,” alongside a heart vignette and “Whole Grains Council” stamp. According to Levit, these elements combine to create misleading health and wellness representations.

While Tigar found some of the challenged statements constitute non-actionable puffery — including phrases like “what we bake in is as important as what we leave out” and “simple snacks made with real ingredients” — he determined the use of “wholesome” could potentially deceive reasonable consumers.

“Unlike words such as ‘unbelievably’ and ‘positively,’ the additional language is not ’exaggerated advertising, blustering [or] boasting,’” Tigar wrote. “Rather, the language merely conveys or emphasizes the ‘wholesome’ quality of defendant’s products in different ways.”

The judge rejected Nature’s Bakery’s argument that no deception occurred because the products’ sugar content is clearly disclosed on the nutrition facts panel.

Tigar noted that, “the Ninth Circuit rejected defendants’ contention that no reasonable consumer could have been misled by the product because the ingredients were specifically identified on the FDA-mandated panel.”

Levit’s claims for breach of warranty, negligent and intentional misrepresentation, and unjust enrichment also survived Nature Bakery’s motion to dismiss.

Tigar also found Levit had adequately established economic injury and standing to seek injunctive relief, noting Levit’s position that he “would not have purchased the products if he knew that the challenged labeling claims were false and misleading in that the products are detrimental rather than beneficial to health.”

However, the judge dismissed Levit’s fraudulent omission claims, finding he failed to plausibly show that eating Nature’s Bakery’s fig bars in customary amounts would cause death or serious injury, or identify any other basis for a duty to disclose by the company.

Levit, who filed suit in federal court in Oakland, seeks to represent a class of California consumers who purchased Nature’s Bakery products, which include fig bars in flavors like raspberry, blueberry, original fig, apple cinnamon, strawberry, peach apricot and pumpkin spice, along with the company’s gluten-free varieties.

Levit was granted 21 days to file an amended complaint addressing the deficiencies in his dismissed claims.

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