Category Archives: Front-of-Package Litigation

Supreme Court Rules 8-0 In Favor of POM Wonderful

The Supreme Court has ruled 8-0 in favor of POM Wonderful in its lawsuit against Coca-Cola with respect to its Minute Maid “Pomegranate Blueberry” juice blend.   I am fortunate to have been quoted in numerous articles discussing today’s ruling.

USA Today – “Justices: Coke’s Pomegranate Juice Not the Real Thing.”

CBS News Moneywatch – “In Juicy Battle with Coke, Supreme Court Sides with POM.”

Washington Post – “Supreme Court says Coca-Cola can be sued over Juice Drink Label.”

Food Navigator – “POM Wonderful scores ‘resounding victory’ at Supreme Court, But What Does it Mean for Your Label?”

National Law Journal – “Supreme Court Closes Safe Harbor in False Advertising Wars.”


Update: Supreme Court Appears Skeptical of Coca-Cola’s Arguments


From Reuters:

In arguments this morning before the Supreme Court, Coca-Cola said that the label for its Minute Maid “Pomegranate Blueberry” juice (with “flavored blend of 5 juices” in smaller type below) complied with rules laid down by the FDA.  Thus, Coca-Cola argued, the company could not be sued by POM for being “misleading” under the Lanham Act, which is designed to protect trademarks.

Chief Justice John Roberts appeared to disagree: “I don’t know why it’s impossible to have a label that fully complies with the FDA regulations and also happens to be misleading on the entirely different question of commercial competition, consumer confusion that has nothing to do with health.”

Justice Anthony Kennedy also disagreed with Coca-Cola’s assertion that consumers were sophisticated enough to know that other juices would be in the bottle because the food label contained the word “flavored” (a term of significance under FDA regulations): “Don’t make me feel bad because I thought that was pomegranate juice.”

Kennedy said pointedly at another instance: “I think it’s relevant for us to ask whether people are cheated in buying this product.”

And when Coca-Cola’s attorney disputed that the label was misleading, Justice Ruth Bader Ginsburg asserted, “Suppose that the reality is that consumers are misled.”

Please also see the Washington Post’s excellent article on the oral argument.

Supreme Court to Hear Arguments Monday in POM Wonderful v. Coca-Cola

On Monday, April 21st, the Supreme Court will hear argument in POM Wonderful v. Coca-Cola, which I recently wrote about here.  The question before the high court is whether a company may bring deceptive advertising claims under Federal Law with respect to a statement specifically allowed under FDA regulations.  In this case, POM alleged that Coke’s marketing of its Minute Maid “Pomegranate Blueberry” juice violated the Lanham Act because consumers are misled to believe that the drink consists primarily of pomegranate and blueberry juices.  The lower courts resolved case in Coke’s favor on preemption grounds because the product’s label was in full compliance with FDA guidelines.

If the Supreme Court sides with POM, it will significantly alter the existing legal landscape.  Presently, the Lanham Act yields to FDA regulations on preemption grounds when the two are in conflict.  In other words, potentially deceptive labels are allowed if the relevant statements have been specifically approved by the FDA.  A ruling in POM’s favor would effectively nullify this safe harbor with the result that anything on a label could be a potential target in litigation.


ILR: Unprecedented Surge in Consumer Class Action Suits Against Food Manufacturers

The U.S. Chamber Institute for Legal Reform (“ILR,” an affiliate of the U.S. Chamber of Commerce) has released a new report called The New Lawsuit Ecosystem: Trends, Targets and Players that includes a section devoted to “Food Class Action Litigation.”  ILR’s stated mission is to  “restore balance, ensure justice, and maintain integrity within the civil legal system.”  And ILR pulls no punches in asserting that the recent surge in food class action litigation is “lawyer driven” and generally involves questionable accusations.

Some groups use these lawsuits to pursue their own political agendas when they cannot achieve their goals by legitimate means through elected officials or regulatory agencies.  Others are just looking for the next “deep pocket.” While some plaintiffs’ lawyers win lucrative fees, consumers are saddled with higher prices and fewer choices as a result of litigation by the self-anointed food police

Putting aside the strong viewpoint, the report is an excellent summary of the “unprecedented surge in consumer class actions against food  manufacturers.”  Please see the complete report here.

Update: General Mills Settles Fruit Roll-Ups Lawsuit with CSPI

I’ve written several posts regarding the class action lawsuit targeting General Mills’ marketing of its Fruit Roll-Ups — see here and here.

The named plaintiff was substantially represented by the Center for Science in the Public Interest (“CSPI”) CSPI complained that General Mills’ Strawberry Fruit Roll-Ups featured pictures of strawberries on the front packaging but that the product does not contain strawberries.  Rather, they are are made from pears from concentrate, corn syrup, dried corn syrup, sugar, partially hydrogenated cottonseed oil, citric acid, acetylated monoglycerides, fruit pectin, dextrose, malic acid, Vitamin C (ascorbic acid), unspecified “natural flavor,” and Red 40, Yellow 5, Yellow 6, and Blue 1.

Last May, the court granted, in part, General Mills’ Motion to Dismiss that lawsuit and dismissed with prejudice plaintiff’s claims to the extent they are based on statements that Fruit Snacks are “fruit flavored,” “naturally flavored,” and “gluten free.”  The Court let the lawsuit proceed, however, with regard to the statement “Made with Real Fruit.”

In late December 2012, General Mills and CSPI resolved the lawsuit.  According to CSPI, General Mills agreed that, so long as strawberry Fruit Roll-Ups contain no actual strawberries, it would refrain from depicting strawberries on the label.  Further, so long as that product’s label contains the “made with real fruit claim,” it will include the percentage of fruit in the product.

For its part, General Mills said “we disagree with CSPI on the merit and substance of the case, but we both agreed to resolve the matter to avoid further litigation.”

Court Dismisses Suit Questioning Identity of Yoplait Greek Yogurt on Primary Jurisdiction Grounds


On December 10th, Judge Susan Richard Nelson of the U.S. District Court in Minnesota dismissed a putative class action regarding the alleged mislabeling of “Yoplait Greek” products marketed by Defendants General Mills and Yoplait.   The ruling was based on the doctrine of primary jurisdiction which is distinct from preemption and amounts to the  proposition that an issue within the substantive jurisdiction of an administrative agency should first be heard by that agency even if the alleged facts may give rise to a claim in court.

In this case, Plaintiff alleged that “Yoplait Greek yogurt is neither yogurt nor Greek, as those terms are used in the industry and as defined by regulation … because it contains significant amounts of Milk Protein Concentrate (‘MPC’).”   According to the Plaintiff, because MPC is not an ingredient expressly listed or described within the applicable standards of identity for yogurt, use of that ingredient is not permitted in yogurt.   Consequently, Plaintiff alleged that Defendants’ actions in marketing this product as “yogurt” violated several of Minnesota’s consumer protection statutes.

Although various grounds were asserted by Defendants for dismissal, the court found application of this doctrine persuasive, especially in light of a 2009 Proposed Rule issued by the FDA that would allow for certain modifications to the standards of identity for yogurt, including “the use of reconstituted milk and whey protein concentrate as standard dairy ingredients.”

[T]he Court finds that the reasons for applying the primary jurisdiction doctrine are present in this case.  The underlying issue here is whether MPC is a proper, permitted ingredient in yogurt.  The resolution of this question falls squarely within the competence and expertise of the FDA, pursuant to the authority granted to the Agency by Congress.

…. The FDA is in the best position to resolve any ambiguity about the standard of identity for yogurt – a matter requiring scientific and nutritional expertise.  Moreover, given that the FDA has issued its 2009 Proposed Rule on the standard of identity for yogurt, it would be imprudent for the Court, at this juncture, to substitute its judgment for that of the Agency’s while revision of the standard of identity is pending.

Moreover, the FDA’s ultimate decision on the permitted ingredients in yogurt will ensure national uniformity in labeling, utilizing the Agency’s special expertise in this regard.  The Agency’s unique role in ensuring such consistency and uniformity is particularly significant here, as several recently-filed yogurt lawsuits throughout the country involve the same or similar issues as found in the instant suit.   The increasing volume of this litigation creates the potential for inconsistent judicial rulings. This underscores the importance of promoting uniformity by referral of this matter to the FDA.

In other words, the Court found that the increasing flood of class action lawsuits on issues within the substantive jurisdiction of the FDA provided solid grounds for deferring such litigation.  Notably, the Court made this ruling knowing that the FDA’s prior pronouncements on this issue “do not constitute a model of clarity.”  Class action defendants should view this ruling very favorably given its potential applicability to other matters such as “all natural” and GMO claims.  Please see the complete ruling here.

“GMO Inside” Campaign Launched As Flow of “Natural” Class Action Lawsuits Continues

Voters may have defeated Prop 37, which would have required the labeling of foods with GMO ingredients, but the issue of GMO ingredients is definitely not going away.  Two days after the election, supporters of Prop 37 launched GMO Inside, a coalition dedicated to help consumers identify GMO ingredients in their foods.  Members of GMO Inside’s steering committee include Food Democracy Now!, Green America, Institute for Responsible Technology, Foodbabe, Nature’s Path and Nutiva.  The press release announcing the coalition included the following statement:

“Corporations may have misled voters in California about GMOs, but they can’t change the fact that over 90 percent of Americans support the labeling of foods with genetically engineered ingredients,” said Alisa Gravitz, CEO of Green America.  “The GMO Inside campaign will make it possible for all Americans to find GMOs in the food products in their homes and communities, label them, and switch to non-GMO foods instead.  The campaign will show corporations that people will not complacently serve as lab rats for the testing of genetically engineered foods.”

Food companies were also reminded last week that litigation is a key tool of anti-GMO advocates by the filing of yet another class action complaint alleging that a product touted as “natural” is deceptively labeled because it is made with GMO ingredients.  This time, Pepperidge Farm, Inc. (owned by Campbell Soup, Co.) is the target of a putative class action suit filed in federal court in Colorado alleging that Pepperidge Farm “has mistakenly or misleadingly represented that its Cheddar Goldfish crackers … are ‘Natural,’ when in fact, they are not, because they contain Genetically Modified Organisms … in the form of soy and/or soy derivatives.”   See the entire complaint here.

As the above image shows, however, the product is not described as “All Natural” or “100% Natural” and its “Natural” claim is somewhat qualified by the “No Artificial Preservatives” statement.  A key issue will thus be whether a reasonable consumer perceives this language as a qualification or instead views “Natural” in this context as synonymous with “100% Natural.”