POM Wonderful’s battle with Coca-Cola is nearing an end as a federal jury trial starts today in the long-running dispute. The case involves a now discontinued Coca-Cola product called “Minute Maid Enhanced Pomegranate Blueberry Flavored 100% Blend,” which both parties agree contained 99.4% apple and grape juices, with very little pomegranate or blueberry juice. In June 2014, the Supreme Court rejected Coca-Cola’s argument that labels specifically authorized and deemed “not misleading” by regulations issued by the FDA pursuant to the Federal Food Drug and Cosmetic Act precludes any claim brought under the Lanham Act’s general prohibition against “misleading” statements.
Notably, Coca-Cola is seeking to argue that POM’s “unclean hands” precludes any award of damages. This affirmative defense relates to POM’s allegedly deceptive advertising practices that were the subject of an FTC Commission opinion. The trial judge has ruled, however, that the FTC ruling cannot be considered as evidence in this regard.
In 2010, another federal jury found that Welch Foods, Inc. deceptively marketed a “100% Juice White-Grape and Pomegranate” product that contained little pomegranate juice, but also found that POM did not prove that it had suffered any damages as a result. If POM again fails to show that it suffered damages then it might undermine future efforts by companies to file suit over questionable marketing practices by competitors. Generally, obtaining an order requiring a competitor to stop such marketing practices is sufficient motivation but here, of course, the product at issue has already been discontinued.