Antitrust Law Daily Wrap Up, ADVERTISING NEWS: High court to review Pom Wonderful’s Lanham Act claims against Coca-Cola juice product, (Jan 10, 2014)

By John W. Arden, J.D., LL.M.

The U.S. Supreme Court today agreed to review the Ninth Circuit’s rejection of Pom Wonderful’s Lanham Act false advertising claims regarding the naming and labeling of Coca-Cola’s “Pomegranate Blueberry” juice product on the ground that a private party may not challenge a product label regulated under the Food, Drug, and Cosmetic Act. Justices Breyer and Alito took no part in the consideration of the petition.

In its petition for certiorari, Pom asked whether the appellate court 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 (FDCA) (Pom Wonderful LLC v. Coca-Cola Co., Dkt. 12-761, filed December 21, 2012).

The Ninth Circuit had ruled that Pom was precluded from asserting Lanham Act false advertising claims based on Coca Cola’s naming of “Pomegranate Blueberry Flavored Blend of 5 Juices” (679 F.3d 1170, 2012-1 Trade Cases ¶77,892) because the challenge would create a conflict with Food and Drug Administration (FDA) regulations and would undermine the FDA’s apparent determination that so naming the product is not misleading, the appellate court determined. As to labeling, Pom apparently wanted to force Coca-Cola to alter the size of the words on its label so the words “Pomegranate Blueberry” would no longer appear in larger, more conspicuous type on Coca-Cola’s label than did the words “Flavored Blend of 5 Juices.”

Congress and the FDA had considered and spoken to what content a label must bear, and the relative sizes in which the label must bear it, so as not to deceive, the appellate court observed. Coca-Cola’s label presumptively complied with the relevant FDA regulations and thus accorded with the judgments the FDA had so far made, it held.

According to Pom, the Ninth Circuit disregarded the Supreme Court’s instruction that courts give full effect to allegedly competing federal statutes unless they are in “irreconcilable conflict.” Since the Lanham Act and the FDCA are not in irreconcilable conflict, they both can be given full effect, according to the petition.

Pom further contended that there was a split among the federal circuit courts on this issue. The Ninth Circuit’s decision purportedly conflicted with the decisions of the Third, Eighth, and Tenth Circuits. Those courts have held that false labeling or advertising claims are actionable under the Lanham Act notwithstanding federal regulation of the labeling or advertising, Pom argued.

Attorneys: Seth P. Waxman (Wilmer Cutler Pickering Hale and Dorr LLP) for POM Wonderful LLC.

Companies: Pom Wonderful LLC; The Coca-Cola Company

News: Advertising