Consumer Advertising Law Blog

Bitter Juice To Swallow - Court Strikes Claims In Pom False Advertising Suit Against Coca Cola

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.

- Randy Shaheen and Jessica Halbert

If State Law Preemption Is the Best Stuff On Earth, It Is Now Endangered

In a much anticipated ruling (opinion found here), yesterday the Third Circuit revived a consumer class action against the maker of Snapple, holding that FDA did not preempt a review under state law of whether Snapple’s claims that its drinks are “all natural” was misleading because they (used to) contain corn syrup.

The New Jersey trial court dismissed the case (opinion found here) because of implied preemption or that “FDA regulations so thoroughly occupy the field of beverage labeling at issue in this case that it would be unreasonable to infer that Congress intended states to supplement this area.” The law of field preemption took multiple hits after the dismissal, including the Third Circuit’s decision on Fellner v. Tri-Union Seafoods allowing a class action regarding failure to warn over mercury in tuna, the Supreme Court’s Wyeth v. Levine decision involving field preemption in failure-to-warn cases involving pharmaceuticals, and Obama’s May memo urging restraint by feds in preempting state law. The panel first noted there was a strong presumption against preemption that Snapple had to overcome and that states had been regulating in the area of food and beverage labeling and branding long before the FDA ever got into the game. The Court did not expressly decide whether the Nutrition Labeling and Education Act (NLEA) expressly preempted the state claim challenge, concluding the issue was not properly before it. It did note, however, that the NLEA “regulated only what a company must place on a label, [Plaintiff’s] claims go to what a company cannot put on a label for the purposes of commercial marketing, an important distinction.” It next concluded that there was no implied preemption or field preemption at issue because Congress had not clearly and manifestly concluded that this is an area that leaves no room for state law and they were “reluctant to find field preemption predicated solely on the comprehensiveness of federal regulations.” Finally, the court did not find implied conflict preemption based on the FDA’s policy statement regarding “natural” or based on its opinion letter that high fructose corn syrup could be termed “natural,” concluding that these determinations were not the result of “formal, deliberative process.” The weight the trial court gives to this evidence on remand as the case moves forward will be of considerable interest to all food and beverage marketers.

The class rep initially alleged the tagline “Made from the Best Stuff on Earth” was false and misleading as well, but amended the complaint to remove these allegations. It is almost as refreshing as a glass of Snapple Pink Lemonade that she recognized puffery when she saw it!