Does "slightly sweet" mean low in sugar?  This is the core question at the center of a putative class action filed against Kerry Inc. recently over its Oregon Chai brand products.

In a complaint seeking both injunctive and monetary relief filed in the Southern of District of New York in November, the plaintiff alleges that claims on Kerry Inc.’s Chai Tea Latte product led her to believe the products were low in sugar.

The plaintiff asserts that the claim “Slightly Sweet,” modified by the claim “A Less Sweet Twist on our Authentic Chai” was a false and deceptive claim about the products’ sugar content. Specifically, that “’slightly sweet’ is understood by consumers to indicate that a product is ‘low sugar’ and causes them to think it has less sugar than it does.”

The complaint points to FDA regulations stating that sugar content claims such as “trivial source of sugar” must contain less than .5 grams of sugar and that “low sugar” claims have never been authorized by the FDA, arguing that because “slight” is synonymous with “low” it is also not an authorized claim.

Plaintiff acknowledges that relative claims such as “reduced sugar,“ “less sugar,” or “lower sugar,” are viewed differently than absolute claims such as “low,” but argues that “slightly sweet” is an absolute claim rather than a relative one, and that the modifying claim “a less sweet twist on our authentic chai” is an inadequate relative claim because it does not provide the percent or fraction of difference in sugar between the two in immediate proximity to the claim.

Because plaintiff claims she would not have purchased the products but for her mistaken believe that the product was "low in sugar," she asserts claims for violations of New York's General Business Law, negligent misrepresentation, breach of express warranty, implied warranty of merchantability, fraud, and unjust enrichment.

Brown et al v. Kerry Inc., Case No. 20-cv-9730, S.D.N.Y.