Today’s case involves a New York federal court dismissing a proposed class action alleging that the labeling on  “slightly sweet” chai tea lattes misleads consumers into thinking the drinks are low in sugar. Brown v. Kerry Inc., No. 1:20-cv-09730 (S.D.N.Y. 3/7/22).

Plaintiff asserted claims under the NY General Business law, and common law negligent misrepresentation, fraud, and unjust enrichment.  Relying on the analysis of the magistrate judge, the district court dismissed all claims.

The court noted that above the product’s name are the phrases “Slightly Sweet” and “A Less Sweet Twist on Our Authentic Chai.”  On the back label,
beneath the language “Slightly Sweet Chai Tea Latte,” the label states: “We get it – you have a particular palate. We’ve taken our original recipe . . . and removed some sweetness for those who know exactly what they want.”  Plaintiff claimed that she and other consumers are led to believe – based on the
“Slightly Sweet” language – that the product is low in sugar, when in fact each serving contains eleven grams of sugar, which allegedly exceeds the regulatory definition of low sugar products

Defendant argued that label was  not “materially misleading,” an element, because (1) “Slightly Sweet” describes flavor rather than its ingredients;
(2) “Slightly Sweet” is non-actionable puffery; and/or (3) the packaging – including the nutritional information printed on the side label – dispels any potential confusion regarding the Product’s sugar content. In rejecting plaintiff’s argument that the “Slightly Sweet” language is “materially
misleading,” the court was not required to accept plaintiff’s conclusory allegations that reasonable consumers would construe the allegations as misleading.

The court went on to conclude that the “Slightly Sweet” label language is “mere puffery,” because “it 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.” See Sommer v. Snapple Beverage Corp., No. 20-CV-04181-JST, 2021 WL 6754525 (N.D. Cal. Sept. 20, 2021) (tea beverage labeled as “Sorta Sweet”); Mazella v. Coca-Cola Co., 548 F. Supp. 3d 349 (S.D.N.Y. 2021) (tea beverage labeled as “Slightly Sweet”); Salazar v. Honest Tea, Inc., 74 F. Supp. 3d 1304 (E.D. Cal. 2014) (tea beverage labeled as “just a tad sweet”)).

The opinion also notes 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. In this regard, the label addresses sweetness in the context of consumers’ “palates.” And the product’s nutritional information – which is also part of the label – “explicitly states the amount of sugar and number of calories” in the product. The nutritional information “dispel[s]” “any ambiguity or confusion regarding the Product’s sugar content.”

Finally, the court found plaintiff’s proffered consumer survey data unpersuasive, noting that the surveys did not actually “demonstrate[e] that consumers understand ‘Slightly Sweet’ to mean ‘low sugar’ or ‘low calorie.’”

Another case in the tug of war between manufacturers wanting to describe their products in both an appealing and accurate way, and the plaintiff bar’s microscopic scrutiny of food and beverage labels.