The Supreme Court has agreed to hear an appeal by POM Wonderful LLC in its suit against Coca-Cola regarding allegedly misleading labels. The case was originally filed by POM in 2008 when it alleged that Coca-Cola misled consumers about the contents of its Minute Maid “Pomegranate Blueberry” juice (with “flavored blend of 5 juices” in smaller type below). The claims were brought under the false advertising provision of Lanham Act as well as under California’s Unfair Competition Law and False Advertising Law. POM claimed the label is misleading to consumers because, despite the name, the product contains very little pomegranate or blueberry juice and consists of, instead, approximately 99% apple and grape juice, which is less-expensive (specifically, 99.4% apple and grape juices, 0.3% pomegranate juice, 0.2% blueberry juice, and 0.1% raspberry juice).
But Coca-Cola said the images on the product correctly identify the five fruits in the juice blend and that the name — “Pomegranate Blueberry – flavored blend of 5 juices” — informed consumers as much while describing that the blend tastes like pomegranate and blueberry.
The 9th Circuit affirmed the district court’s grant of summary judgment to Coca-Cola because POM was impermissibly challenging FDA regulations permitting the name and labeling that Coca-Cola used. It reasoned that the Food, Drug and Cosmetic Act (“FDCA”) comprehensively regulates food and beverage labeling which, in turn, means that a plaintiff cannot sue under the Lanham Act (1) to enforce the FDCA or its regulations; (2) to interpret ambiguous FDA regulations; or (3) even to decide whether conduct violates the FDCA. Accordingly, express preemption existed.
As best we can tell, Coca–Cola’s label abides by the requirements the FDA has established. We therefore accept that Coca–Cola’s label presumptively complies with the relevant FDA regulations and thus accords with the judgments the FDA has so far made. Out of respect for the statutory and regulatory scheme before us, we decline to allow the FDA’s judgments to be disturbed.
The 9th Circuit thus did not reach the question of whether the label was, in the context of a Lanham Act claim, deceptive and/or misleading.
On appeal to the Supreme Court, the question presented as stated by POM is:
Whether the court of appeals erred in holding that a private party cannot bring a Lanham Act claim challenging a product label regulated under the Food, Drug, and Cosmetic Act.
Coke frames the question differently:
Whether the Ninth Circuit correctly held that a private litigant cannot use the Lanham Act’s general prohibition against “misleading” statements to challenge a product name and label specifically authorized, and deemed “not misleading,” by regulations duly issued by the [FDA] pursuant to the [FDCA].
The subtext of the case is that POM was losing sales to Minute Made in the face of POM’s extensive advertising and promotion of its pomegranate juice products as having particular health benefits (for which it has received attention from FTC as noted in my prior posts here). The case will likely be argued before the Supreme Court in April with a ruling expected by June.