‘Sorta sweet’ does not imply low sugar, argues Snapple Beverage Corp as it urges court to toss ‘fanciful’ lawsuit

 ‘Sorta’ serves as a “synonym of low​” and “is understood by consumers to indicate the products are low in sugar,” ​alleges a recent complaint* vs Snapple Beverage Corp, maker of Straight Up Tea​​, which markets a tea with 22g sugar per 18.5oz bottle as 'sorta sweet.'

“Far from being ‘Sorta Sweet’ and low in sugar, sugar is the second most predominant ingredient in the products by weight,” ​says the complaint, the latest in a string of lawsuits filed against brands including Gold Peak, Honest Tea, and Steaz​ ​over claims such as ‘lightly sweetened’ and ‘just a tad sweet.’

“Consumers will not expect a product represented as ‘Sorta Sweet’ to have 22 grams of added sugar ​[editor’s note: the 18.5oz bottle in question has 22g sugar, of which 21g is added sugar].”

The FDA does not define ‘low’ sugar, and there is no legal definition of ‘sorta sweet.' However, at 21g of added sugar, the 18.5oz bottle contains 42% of the 50g daily value for added sugars.

A 12oz serving (2/3 of the bottle) contains 14g of added sugar (28% of the DV), and if this were sodium or saturated fat, the products would be classified as ‘high’ in said nutrient, noted the lawsuit, which accuses Snapple of making false and misleading claims.

'Sorta Sweet means exactly what it says: the taste of the tea is somewhat sweet'​

In a motion to dismiss the complaint filed on January 14, however, Snapple Beverage Corp (part of Keurig Dr. Pepper) argues that the plaintiff’s allegations are “fanciful, not plausible.”​

For a start, says the company, while the word ‘sweet’ may suggest the tea has a sweet taste like sugar, it does not necessarily mean that the tea contains​ sugar. It points out – for example - that Snapple sells many diet teas that contain zero sugar, but still have a sweet taste.

According to Snapple, which says the term amounts to non-actionable puffery, “Sorta Sweet means exactly what it says: the taste of the tea is somewhat sweet. No regulations are violated. No reasonable consumer is misled.”​

It also notes that the phrase is “not read in a vacuum​,” and that consumers unsure of the tea’s sugar content can simply flip the pack and read the ingredients list and Nutrition Facts panel.

Moreover, given that there are also Unsweetened (0g sugar) and Sweet (45g sugar) versions of the brand, consumers might reasonably assume that the ‘Sorta Sweet’ variant contains about 22g sugar, added Snapple Beverage Corp.

A flurry of class action lawsuits​

Given that the FDA has not defined ‘low sugar,’ lawsuits addressing claims about sugar content have hinged upon subjective arguments about whether ‘reasonable consumers’ might be misled.

In 2019, Kellogg agreed to settle a class action lawsuit​​​ alleging it falsely advertised some ‘lightly sweetened’ cereals as healthy and nutritious. As part of the settlement, it agreed to remove the phrase ‘Lightly Sweetened’ from Frosted Mini-Wheats and Smart Start for at least three years.

However, a similar case against General Mills was dismissed by a different judge​​​​​, who argued that consumers “cannot plausibly claim to be misled ​​​about the sugar content of their cereal purchases because defendant provided them with all truthful and required objective facts about it​​​​s products, on both the side panel of ingredients and the front of the products’ labeling.​​​” ​​​​Meanwhile, a near identical case vs Clif Bar was allowed to proceed​.​​​​

Attorney: ​‘​There is no direct correlation between sweetness and the amount (or even the presence) of sugar in foods or beverages'​

So what do legal experts make of these lawsuits, and is this a fertile new area of opportunity for plaintiff’s attorneys given heightened scrutiny of sugar levels in foods and beverages?

Adam Fox, partner at Squire Patton Boggs, who represented much of the US sugar industry in litigation against the makers of Splenda and—in a subsequent lawsuit—high fructose corn syrup, told FoodNavigator-USA that while consumer survey data may help identify consumer perception, the "allegations of falsity regarding the marketing claims targeted in these cases appear facially implausible."​

Sweetness is an aspect of taste that can be "generated by multiple different sources"​ as well as sugar, including zero calorie non-nutritive sweeteners such as stevia, he noted: "There is no direct correlation between sweetness and the amount (or even the presence) of sugar in foods or beverages.​

"Of course, once one digs into the facts to look at the challenged marketing claims in their full context, as the law requires, the facially implausible nature of the false advertising allegations slide toward the absurd." ​

In the Straight Up Tea case, he said, "Unsurprisingly, the 'sorta sweet' version of the product contains more sweetener than the 'unsweetened' version, and less than the 'sweet' one. This reality should surprise no one. It should also certainly not trigger liability for misleading anyone."​

Attorney: ​‘​We were not surprised by this copy-cat cluster and would not be surprised if there were more [lawsuits]’​

Dale Giali, partner in the LA office of law firm Mayer Brown, added: “Those of us who focus on this space like a laser noticed this uptick and — if we’ve learned anything — we know that consumer class action lawyers are mostly followers. So, we were not surprised by this copy-cat cluster and would not be surprised if there were more.​”

But he cautioned: “Courts are getting better at looking at label statements in context and, significantly — where a label claim could lead to some ambiguity (and, at worst for defendants, that’s all that’s going on here) — holding consumers to the objective information on the label, such as the ingredient list and Nutrition Facts Panel if that information would dispel the confusion."​

George Spatz, partner at Amin Talati Wasserman, said it seemed "unlikely that consumers, given their familiarity with sugar and sugar substitutes, would believe ‘sorta sweet’ refers to the product’s relative sugar content as opposed to its flavor profile."​

What matters here, however, is who determines how a reasonable consumer might perceive the claim.

"If the court decides on its own what a reasonable consumer may believe as a matter of law, the claim likely will not survive a motion to dismiss. However, if the court decides the plaintiff should have leeway to try to prove the claim in litigation, the plaintiff’s attorneys can burden the defendant with the prospect of costly litigation.”​

Ryan Kaiser, managing partner at law firm Kaiser IP, LLC, predicted that the plaintiff would ultimately have a difficult time certifying a class of plaintiffs due to the ambiguity of the word 'sorta.'

But he added: "As we’ve seen in the past, any time there is ambiguity in an area of social interest ... there is fodder for class actions.  I do expect we’ll see more of these as marketers continue coming up with new and unique ways of saying things on labels."​

*The case is Sommer v. Snapple Beverage Corp., 4:20-cv-04181, filed in the U.S. District Court for the Northern District of California.

There is no legal definition of ‘sorta sweet,’ ‘lightly sweetened’ or ‘low sugar’​

​

While there is no legal definition* of 'low sugar,' FDA guidance​​​​ (p90) says the term ‘low sugars’ is "not defined​​​," and “may not be used.”​​​

And as terms such as 'sorta sweet' and ‘lightly sweetened’ are arguably synonyms of the prohibited term 'low sugars,' they should not be permitted either, claims health advocacy group the Center for Science in the Public Interest (CSPI).

In a letter​​​ to the FDA sent in 2020, the CSPI highlighted 19 products from five brands using terms such as ‘lightly sweetened’ and ‘less sweet,’ to describe products that contain 14-25g added sugar (up to half of the 50g daily value).

These products – according to the CSPI – violate FDA’s regulation of nutrient content claims, and its general prohibition against labeling that is false or misleading.

CSPI: FDA should define low sugar as 3g or less sugar per serving

"FDA hasn’t defined 'low sugar' and that means companies can’t make 'low sugar' claims," ​​​Sarah Sorscher, deputy director of regulatory affairs at the CSPI, told FoodNavigator-USA last year.​ ​"They also can’t make implied low sugar claims like 'lightly sweetened.' These claims are not authorized and they can be misleading, especially when they’re used on sugary products."​

Meanwhile, terms such as ‘less sweet’ are implied nutrient content claims because they are synonyms of ‘reduced sugar,’ and should not be permitted unless the products meet the criteria for a reduced sugar product, she argued.

The CSPI has urged the FDA to issue regulations authorizing ‘low added sugar’ claims on products with 3g or less per serving. ​

*The FDA only sets conditions of use for ‘reduced/less/lower sugar’ nutrient content claims​​​​​​​, which are permitted on products containing at least 25% less sugar per reference amount customarily consumed than an appropriate reference food.