Judge weighs in on whether ‘slightly sweet’ means low in sugar

Consumers seeking low-sugar food and beverage products need to take a close look at Nutrition Facts labels, rather than rely on brands’ descriptive language—a point reinforced by a judge’s recent ruling in a civil lawsuit.

Oregon Chai bills its Slightly Sweet Chai Tea Latte concentrate as “A Less Sweet Twist on Our Authentic Chai,” while the nutritional information provided on the back of the product shows the boxed tea concentrate contains 11 grams of added sugar per serving.

A New York woman claimed to have been duped into thinking the drink was low in sugar, and brought a lawsuit alleging false advertising. The plaintiff alleged the sweetness claim could lead reasonable consumers to believe that the product is “lower in sugar than it is,” according to the suit.

But a court in the Southern District of New York earlier this month sided with a magistrate judge overseeing the case, who recommended tossing it, and granted Oregon Chai’s motion to dismiss. In doing so, the court held that the Slightly Sweet language “provides no objective measurement or indication of the amount of sugar in the product, and refers instead to a subjective claim about the Product’s level of sweetness that cannot be proven either true or false.” In advertising law lingo, the Slightly Sweet description is considered mere “puffery.”

The overseeing judge noted that the “context of the label as a whole” suggests that “Slightly Sweet” is a representation about the product’s “taste profile, rather than the amount of sugar” it contains. He wrote that the nutritional information on the label explicitly states the amount of sugar and number of calories, and the label “dispel(s) any ambiguity or confusion regarding the Product’s sugar content.”

The Slightly Sweet version of Oregon Chai’s boxed tea is certainly less sweet than the brand’s original chai tea latte concentrate product. The latter contains 31 grams of added sugar per serving—62% of the recommended daily amount—as compared with 11 grams in the less sweet version.

Too-sweet kombucha tea?

The sweetness language debate isn’t always cut and dry, though. Advertising law attorney Jeff Greenbaum, with New York-based Frankfurt Kurnit Klein & Selz PC, noted another recent case in the Northern District of California, in which the court is allowing a suit to move forward where a plaintiff is alleging false advertising by kombucha brand Health-Ade.

The plaintiff alleged product labels for Health-Ade kombucha beverages are misleading because they imply the drinks are healthy, when the “high sugar content” actually makes them unhealthy.

In a recent decision that did not grant a motion to dismiss the case, the court held that the word “health,” along with the word “ade”—which sounds like “aid,” the court noted—made it “plausible that reasonable consumers would construe ‘Health-Ade’ to mean healthy.”

As Greenbaum described in a blog post, the court in California also rejected Health-Ade’s argument that the term “health” is non-actionable puffery as a matter of law, defining puffery as “generalized, vague and unspecific assertions.” It found that consumers may actually rely on terms like “healthy” when making product-buying decisions.

[Cases cited in this article: Brown v. Kerry, 2022 WL 669880 (S.D.N.Y. 2022); Johnson-Jack v. Health-Ade, 2022 WL 562826 (N.D. Cal. 2022)]