On January 9, the Center for Science in the Public Interest (CSPI) sent a letter to Dr. Susan T. Mayne, Director of the Center for Food Safety and Applied Nutrition (CFSAN) at FDA, urging the Agency to “take immediate enforcement action to prevent unauthorized implied ‘low sugar’ and ‘reduced sugar’ claims, such as ‘lightly sweetened’ and ‘less sweet’ on beverage products that are high in sugar.”  CSPI argues that these claims mislead consumers and are in violation of the federal Food, Drug, and Cosmetic Act (FDCA).

In the letter, CSPI identified 19 products from 5 brands that they allege make unauthorized implied “low sugar” or “reduced sugar” claims. “Low sugar” and “reduced sugar” claims are nutrient content claims (NCCs), which are claims that expressly or implicitly characterize the level of a nutrient of the type required to be in nutrition labeling.  NCCs may not be made on labels or in labeling unless the claim is made in accordance with the regulations authorizing the use of that claim. CSPI argues that claims such as “lightly sweetened,” “sorta sweet,” “slightly sweet,” and “just a tab sweet” are synonyms for “low sugar” and are therefore prohibited under federal law because “low sugar” is not a defined or permitted NCC. Similarly, CSPI alleges that some products make “less sweet” claims but do not meet the requirements to make a “reduced sugar” NCC.

In addition to urging the FDA to take enforcement action against the manufacturers identified in the letter for making implied “low sugar” and “reduced sugar” claims, CSPI encourages the Agency to issue regulations authorizing a “low added sugar” NCC to allow the claim to be made on products that are low in added sugars. CSPI recommends the NCC be based on a per-reference amount customarily consumed (RACC) threshold, similar to the requirements for other “low” NCCs.

Notably, Kellogg recently settled a class action lawsuit over use of the label claims “lightly sweetened,” “healthy,” “nutritious,” and “wholesome,” on select cereals, including Krave S’Mores and Cinnamon Roll Frosted Mini Wheats. Plaintiffs argued the claims implied that the cereals were low in sugar when they actually contained 18 – 40% added sugar. In response, Kellogg stated that it had never advertised the cereals as “low sugar” or “reduced sugar,” and that the sugar content was clearly listed on each product’s Nutrition Facts Panel. The class action lawsuit settled for $20 million.