Oregon Chai makes a drink called "Chai Tea Latte."  On the packaging, right above the name of the product, in big letters, the drink is promoted as being "Slightly Sweet."  The front of the packaging also says that the product is, "A Less Sweet Twist on Our Authentic Chai."  Does Oregon Chai need substantiation for its "Slightly Sweet" claim?  Or is the claim simply non-actionable puffery? 

In a lawsuit brought against Oregon Chai, alleging false advertising and other claims under New York law, the plaintiff alleged that the "Slight Sweet" language is false and misleading because it leads consumers to believe that the product is low in sugar, when, in fact, it contains eleven grams of sugar per serving. In other words, the plaintiff alleges, the claim will lead reasonable consumers to believe that the product is "lower in sugar than it is." 

While this argument was successful in a case involving "lightly sweetened" kombucha that I blogged about last week, the court here came out the other way, granting Oregon Chai's motion to dismiss. 

The court adopted the findings of the magistrate judge, who held that the "Slightly Sweet" 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."  In support of his finding, the magistrate said that he believed that "Slightly Sweet" was only a representation about the product's "taste profile," rather than about the amount of sugar that it contains. 

The court also adopted the reasoning of the magistrate judge that, even if the phrase were misleading, "any ambiguity or confusion regarding the Product's sugar content" was cured by the nutritional information provided on the back of the product. 

How do you reconcile this with last week's decision involving "lightly sweetened"?  Good question! 

Brown v. Kerry, 2022 WL 669880 (S.D.N.Y. 2022).