Antitrust Law Daily Wrap Up, ADVERTISING NEWS: Pom Wonderful Asks High Court to Consider Lanham Act Challenge to Competitor's Naming, Labeling of Juice Product, (Dec 28, 2012)

By Jeffrey May, J.D.

Pomegranate juice seller Pom Wonderful LLC has asked the U.S. Supreme Court to review a decision of the U.S. Court of Appeals in San Francisco, rejecting its Lanham Act false advertising claims against the Coca Cola Company over the naming and labeling of Coca-Cola's “Pomegranate Blueberry" juice product. In its petition for certiorari, Pom asks 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 appellate court ruled that Pom was precluded from asserting Lanham Act false advertising claims based on Coca Cola's naming and labeling of “Pomegranate Blueberry Flavored Blend of 5 Juices” (679 F.3d 1170, 2012-1 Trade Cases ¶77,892). Pom's challenge to the name “Pomegranate Blueberry Flavored Blend of 5 Juices” 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 that 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. Coca-Cola’s label presumptively complied with the relevant FDA regulations and thus accorded with the judgments the FDA had so far made, the appellate court held.

According to Pom, the appellate court disregarded the Supreme Court's instruction that courts give full effect to allegedly competing federal statutes unless they are in “irreconcilable conflict.” The Lanham Act and the FDCA are not in irreconcilable conflict, and, as a result, can both be given full effect, according to the petition.

Pom also contends that there is a split among the federal circuit courts on this issue. The Ninth Circuit's decision purportedly conflicts 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 argues.

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

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