On Monday April 21, Pom Wonderful LLC, the maker of a line of POM WONDERFUL® pomegranate juice products, www.pomwonderful.com, and The Coca-Cola Company, which sells MINUTE MAID® juice products, www.minutemaid.com, battled it out before the U.S. Supreme Court on the issue of whether a private party can bring a claim under Section 43(a) of the Lanham Act challenging a product label that is regulated under the Food, Drug, and Cosmetic Act. US Supreme Court Case No. 12-761. In the proceedings below, the Ninth Circuit unanimously affirmed the district court’s grant of partial summary judgment to Coca-Cola ruling that Pom’s Lanham Act claim was barred by FDA regulations to the extent it challenged Coca-Cola’s label on its MINUTE MAID® Pomegranate Blueberry Flavored Blend of 5 Juices beverage product.
The Lanham Act allows a private remedy to a commercial plaintiff whose commercial interests have been harmed by false or misleading representations. After concluding it was losing sales of its pomegranate juice products to Coca-Cola’s pomegranate juice blend product, Pom Wonderful sued Coke alleging that the labeling on the Coke product misled consumers into thinking that it contained significant amount of pomegranate and blueberry juice when those only constituted 0.3% and 0.2% of the juice blend product respectively. (Apple and grape juice constituted 99% of the product.) The words “pomegranate” and blueberry” appeared prominently on the front of the bottle, directly below which appeared “Flavored Blend of 5 Juices” in a font size approximately 50% smaller than the two words above it. The label also displayed images of a pomegranate and blueberries in front of images of an apple and grapes. Coke defended by arguing that the Lanham Act claim was barred since Coke’s label complied with all FDA juice-naming regulations, and that since its label met the nationally-uniform standard under the relevant FDA regulations, it should not be subject to claims brought under an unrelated statute that imposed standards different from the FDA standards.
Some of the questions and comments by the Justices during oral argument on Monday suggest that some might disagree with the Ninth Circuits’ decision. When the attorney for Coca-Cola, argued that her client’s label met all FDA regulations and that “we don’t think that consumers are quite as unintelligent as Pom must think they are,” Justice Kennedy responded “don’t make me feel bad because I thought this was pomegranate juice.” In later comments, Kennedy further commented that labels like the MINUTE MAID label at issue “cheat consumers.”
Moreover, Chief Justice Roberts stated “I don’t know why it’s impossible to have a label that fully complies with FDA regulations and also happens to be misleading on the entirely different question of commercial competition, commercial confusion that has nothing to do with health.” Justice Ginsberg stated that although the label may meet FDA standards, the FDA was not approving the drink’s “name,” and that “in the real world, the FDA has a tremendous amount of things on its plate, and labels for juices are not really high on its list.”
It will be interesting to see how this case is decided. The practical and procedural implications of the decision may reach far beyond the issue of whether a Lanham Act claim can be brought under these circumstances. Stay tuned.