Pom Wonderful LLC (“Pom”), makes, markets, and sells POM WONDERFUL® an upscale pomegranate juice. Pom brought suit against Coca-Cola in 2008 stemming from its Minute Maid product -- Enhanced Pomegranate Blueberry Flavored 100% Juice Blend -- a mix of five juices. Pomegranate and blueberry, however, comprise less than .5% each of the overall blend of juices in this Minute Maid Product. In the lawsuit, Pom claimed false advertising under the Lanham Act, 15 U.S.C. §1125(a) as well as false advertising and unfair competition under California’s Business and Professions Code §§17200 and 17500.We have blogged about previous developments in this case, here and here.
To support its claims, Pom has provided consumer complaint evidence bemoaning the product as “nothing but fancy apple grape juice” and a waste of customers’ “time and money.” Pom also presented evidence from a Coca-Cola employee who stated that in her experience, the Juice has received “more complaints than any other Minute Maid Product.” Pom further produced a consumer survey which illustrated that more than a third of participants thought the juice contained only pomegranate and blueberry juices, with nearly all of those participants forming that belief from Minute Maid’s use of ‘pomegranate blueberry’ on the label.
Coke’s counterargument centered on its compliance with FDA labeling requirements, which permit companies to name a multiple-juice beverage with names that do not include all the juices contained in the drink, provided that the represented juice used for labeling the product is used as a flavor (e.g. raspberry-flavored apple and pear juice drink). “Blend” is also contemplated in the labeling requirements as a way to indicate non-represented juices are present (e.g., apple blend; apple juice in a blend of two other fruit juices). See 21 C.F.R § 102.33. Coke asserted that its compliance with the FDA labeling laws preempts any Lanham Act Claim.
Based on this defense, the Court sided with Coca-Cola and determined that Pom may not challenge the naming of the Minute Maid beverage or Minute Maid’s use of a fruit vignette (image of fruits contained in the juice blend product) on its label, both of which comply with FDA labeling requirements. The Court found both items to be clearly within the purview of the FDA and held that, “[a]s a private litigant, Pom cannot seek to have this Court indirectly attack FDA regulations as courts may not be used to second-guess the considered judgments of the FDA.”
Pom remains free to pursue its false advertising claim insofar as it alleges that Minute Maid’s advertising of the juice blend product deceived customers, but how much weight will be afforded to the survey demonstrating such confusion remains in question. Regardless of the survey, if Pom can produce evidence showing that Coca Cola willingly deceived its customers, the court suggested that the burden may then shift to Coca-Cola to prove otherwise.