Nine months ago, the US Food and Drug administration accused Kind, the snack-bar maker, of breaking the law by describing its bars containing fatty nuts as “healthy”. Fighting back, Kind charged that the FDA’s rules are wrongheaded and outdated.
At the center of this battle with government regulators is Daniel Lubetzky, founder and CEO of Kind, who tries to live up to his company’s name even when he’s talking about a foe.
“The people who work at FDA are just trying to do their jobs,” Lubetzky says. He was pained, he told me, by headlines like, “The maker of Kind bars picks a fight with the FDA”. With the support of nutrition experts, Kind said last month that it is “respectfully” asking the FDA to update its rules which were introduced years ago “with the best of intentions” to be updated to reflect today’s nutrition science.
There’s a lot at stake here for Lubetzky and his New York-based company, which makes snack bars of fruits, nuts, whole grains and a drizzle of chocolate or caramel. Health is part of the company’s messaging: its packaging is transparent, and on its website Kind touts its use of “whole nuts, fruits and whole grains” that, it says, provide “essential nutrients like fiber, protein and antioxidants.”
Kind changed the labels on the four offending bars before challenging the FDA to change its labeling rules. FDA staff will now evaluate the petition, a process that the agency says may take several weeks to more than a year. Kind even faces a class-action lawsuit around its labeling.
In the meantime, Consumer Reports has weighed in on the dispute after giving favorable reviews to Kind bars. “It’s clear that the company is violating labeling laws,” the magazine said. “But in terms of the effect on your efforts to eat healthy, most of the violations are pretty minor.”
A 47-year-old New Yorker, Lubetzky grew up in Mexico, earned a law degree from Stanford and left a Wall Street law firm to start his first company, Peaceworks, bringing Arabs and Israelis together to make skincare products and sundried tomato spread. He’s also the founder of OneVoice, a grassroots movement that supports Israelis and Palestinians, especially young people, to work on public campaigns to create a Palestinian state.
Lubetzky has been shaped by his history. His father – whom he calls “my best friend, my mentor, my hero” – was liberated from a Nazi concentration camp in Dachau, Germany, at age 15. As the story goes, he survived
due to the kindness of others, among them a German prison camp guard who risked his own safety to feed him a potato.
But what does that have to do with snack bars? Everything, he argues. In his book, Do the Kind Thing: Think Boundlessly, Work Purposefully, Live Passionately, published earlier this year, Lubetzky says that his company aspires to be “not just a great brand and product, but also a movement, a community, a state of mind”. The book is organized around the principles that built Kind, devoting chapters to purpose, truth, transparency, empathy, trust and ownership.
The company raises money for charities, tweets about acts of kindness and invites people to thank one another for doing good deeds by sending them a Kind bar. If nothing else, it’s a clever way to get people to sample the product.
Privately-held Kind does not disclose revenues or profits but the company sold about 450m snack bars last year and employs about 600 people.
As a leader, Lubetzky says he tries to be a good listener by keeping quiet during meetings so that others feel free to speak. “Learning how to contract your power and personality is of incredible importance,” he writes.
But Lubetzky isn’t keeping quiet about the long-standing FDA regulation on healthy food labeling.
His disagreement with the FDA began last March. Regulators told the company to stop using the word “healthy” to describe four snack bars containing nuts, because they are high in saturated fat. Kind complied, but filed a petition last month to change the rule, noting that existing FDA guidelines unfairly penalize a variety of foods that also contain unsaturated fats, including salmon, avocado and nuts. Nuts are now widely considered to be a good source of nutrition.
“Under the current regulations, any product that has more than one gram of saturated fat or three grams of total fat per serving cannot be labeled healthy,” Lubetzky says. “That makes no sense. We now know that all fats are not created equal.”
Michele Simon, a lawyer, author and expert on food policy, says she is pleased that Kind is challenging what she calls “outdated FDA rules” but says she would have preferred to see a broader coalition of companies or trade associations petition the agency.
“FDA is unlikely to take action based on one company’s request,” Simon says. “If they had teamed up with the rest of the nut industry, or the olive oil or avocado industry, they’d have had a better chance.”
Meanwhile, a class action suit has been filed in federal court by the firm of Scott + Scott on behalf of two California plaintiffs who say they bought Kind bars “under the mistaken belief that these products were healthier” than other snack products. The lawsuit seeks at least $5m in damages on behalf of all consumers who mistakenly bought Kind bars because of the company’s “deceptive labeling, packaging and marketing”.
Kind declined to comment on the lawsuit.
For Lubetzky, the labeling fight with the government is about righting a wrong. He doesn’t mean to be unkind, but says it’s not fair that “even if your product is beneficial, it can’t be called healthy”.
