Legal Newsline

Tuesday, October 15, 2019

It's possible that 'professional plaintiff' suing over sugar in ONE protein bars never actually ate one


By Mary Ann Magnell | Sep 26, 2018

WASHINGTON (Legal Newsline) – ONE Brands, sued over the amount of sugar in its line of nutrition bars, says it has been targeted by a professional plaintiff who has never actually eaten one of its products and a law firm that failed in its first try to pursue these allegations. 

The company's motion to dismiss was filed in the U.S. District Court for the District of Columbia on Sept. 14 in response to a July lawsuit filed by plaintiff Gloria Hackman, a registered nurse who is referred to her in complaint as a “consumer, and a public health and consumer watchdog in the District.” 

“Although captioned as a consumer protection case, this case is nothing of the sort,” said the defendant in its motion to dismiss. “Plaintiff is not a consumer. She did not take a single bite of the ONE Bars that form the basis of her complaint. Instead, she purchased the bars solely to file this suit.”

Hackman, dubbed a "professional plaintiff" by ONE, filed suit against the North Carolina-based company claiming that the bars that she tested, which included ONE Brands Birthday Cake Protein Bar and ONE Brands Almond Bliss Protein Bar, were “laden with sugar despite being marketed as a low-sugar, healthy product.” 

According to the complaint, the bars contain “approximately 900 percent to 1,600 percent more sugar than the ‘1 gram of sugar’ represented” on their labels.

In the past, Hackman has sued companies like ALDI, Bayer, Save-A-Lot and Kraft.

"Plaintiff purchased ONE bars as a member of the consumer public," her complaint says.

"This purchase included the purpose of testing and evaluating whether ONE bars have been unlawfully and deceptively sold..."

Hackman's lawyers - the D.C. firm Migliaccio and Rathod - filed a similar suit in February, in which ONE Brands alleged that because the case was based on sugar testing that did not comply with federal law, the claims were preempted. 

Hackman's lawyers dropped the suit rather than respond to that claim and two months later filed Hackman's case.

"Counsel for Plaintiff Ms. Hackman venture once more unto the breach," the motion says.

In the filing to dismiss Hackman's suit, ONE Brands claims that the plaintiff has “refused to turn over her testing and does not disclose which laboratory did the test, which methodology it followed, or what type of sugar she tested for.” 

The defendant also notes that the complaint “makes clear” that she did not comply with the Federal Drug Administration’s testing protocol."

In its motion, the defendant claims that the plaintiff’s sugar-content claims are preempted by federal law. Further, it claims she lacks standing and that she has not stated a claim under the D.C. Consumer Protection Procedures Act. 

U.S. District Court for the District of Columbia case number 1:18- v-2101-CKK

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