Why Food and Beverage Advertisers Should Be Worried About Pom v. Coca-Cola

Supreme Court to decide if juice label was misleading

The Supreme Court will hear arguments on Monday on a case that could significantly change the legal landscape for what name food makers give their products and how they market the product on the food label.

The case is Pom Wonderful v. Coca-Cola, a case that dates back to 2008, when Pom sued Coca-Cola for misleading consumers on the label for its pomegranate blueberry flavored blend of five juices beverage, which consists of 99 percent apple and grape juice and only 0.3 percent of pomegranate and 0.2 percent of blueberry juice.

Coca-Cola wasn't the only juice maker that Pom sued under the Lanham Act, which prohibits false and misleading statements about a product. It also sued Ocean Spray, Welch’s and Tropicana. But only Coca-Cola prevailed against Pom, a decision that was affirmed by the Ninth Circuit.

The legal questions before the Supreme Court are discrete, but boil down to whether a company like Pom can sue another company (Coca-Cola) for a misleading label that has been interpreted as permissible by the Food and Drug Administration.

"Depending on how the Supreme Court rules, the ramifications could be broad. This is a huge case for the food and beverage industry," said Linda Goldstein, a partner with Manatt, Phelps and Phillips. "No one has asserted that Coca-Cola violated FDA rules and law. The issue is whether the FDA regulations are the floor or the ceiling. Pom says it's the floor and that the label can still be misleading."

Pom has called out just about everything on the juice label, including the graphic design of the label showing an image of fruit, the name of the product, even the way the name was treated in type by putting "pomegranate blueberry" in larger type and on the next line in tiny type, "flavored blend of five juices."

"If Pom wins, then anything on a food label could be fair game for litigation. Pom's longest reach is for the actual name of the beverage," said August Horvath, a partner with Kelley Drye that represented Ocean Spray against Pom. "Coca-Cola named the juice by the taste, which is OK under the FDA rules."

Goldstein posits that a win for Pom could create a chaotic legal environment for food and beverage companies. "It will cause uncertainty and confusion and open the flood gates even further to class action litigation," Goldstein said.

A ruling is expected this summer.

Ironically, Pom is still in litigation with the Federal Trade Commission, which has charged the juice maker with false and deceptive advertising. That case is on appeal with the D.C. Circuit Court of Appeals.