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Apr 16 2014

Great moments in marketing

If you are marketing a juice that consists of 99% apple and grape juice, 0.3% pomegranate juice, and 0.2% blueberry juice, what would you put on the label? If you are Coca-Cola, you call it “Pomegranate Blueberry” of course, because then you can take advantage of the fact that currently pomegranate juice is being marketed as the hot new healthy item, whether that is true or not.

The company POM Wonderful that grows pomegranates and markets products that are primarily made from that fruit is annoyed by this and because the FDA has not intervened to make Coca-Cola be more truthful in its marketing, they have taken their rival to court and the Supreme Court has agreed to hear the case.

Ronald Mann has an interesting synopsis of the issues behind this case.

As it happens, the federal Food, Drug, and Cosmetic Act (“FDCA”) regulates many aspects of food sales and marketing, including product labels. Because the Food and Drug Administration (“FDA”) has not taken any action against Coca-Cola based on this label, Coca-Cola is in a position to argue that the FDCA regulatory scheme precludes POM’s suit under the Lanham Act, on the theory that the FDA has the exclusive authority to regulate food labels. A district court in California accepted Coca-Cola’s argument, and the Ninth Circuit affirmed. When POM sought Supreme Court review, the Court called for the views of the Solicitor General. The federal government responded that, although it did not agree with all aspects of the decision, it thought review unwarranted. The Court nevertheless granted certiorari.

Mann thinks that Coca-Cola will have a tough time defending its outrageously misleading labeling but these types of cases are notoriously hard to predict.

10 comments

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  1. 1
    baldape

    Sadly, the merits of calling something with only traces of pomegranate or blueberry “Pomegranate Blueberry” won’t be the issue. It will be whether a company has the right to sue on the issue if the FDA doesn’t seem to care.

  2. 2
    Abby Normal

    The name of the product describes its flavor. If one wants to know its content, that’s what the ingredients section is for. This is common practice for a wide range food of products. Read the labels at a grocery store. You’ll probably be shocked by how often the thing for which the product is named is low on the ingredient list, or even absent entirely.

    One may speculate that Coca-Cola’s motive is to capitalize on media hype about the health benefits of pomegranate juice. But I’d be surprised if such speculation turns out to be relevant. I don’t think Coke has much to worry about.

  3. 3
    colnago80

    It is my information that the FDA has the power to regulate the percentage of a liquid product that can be labeled as a fruit drink (e.g. orange juice). Apparently, they haven’t seen fit to do so in this particular case.

  4. 4
    machintelligence

    Indeed. There is now “orange juice light” on the market with one half the calories. It also has one half the juice. as it is 50% added water (at the same price as 100% juice.)

  5. 5
    A. Noyd

    a juice that consists of 99% apple and grape juice, 0.3% pomegranate juice, and 0.2% blueberry juice

    Holy shit, that’s ridiculous. POM’s version is 85% pomegranate and 15% blueberry. And 100% delicious. (Too bad it’s expensive as hell and plays into bogus health claims.)

    ~*~*~*~*~*~

    Abby Normal (#2)

    The name of the product describes its flavor. If one wants to know its content, that’s what the ingredients section is for.

    The ingredients section makes it sound like there’s as much pomegranate juice as apple and grape. (Click “view nutritional information” here.)

  6. 6
    Pierce R. Butler

    Dare I ask, what’s the remaining 0.5%?

  7. 7
    DsylexicHippo

    @ #6, Pierce Butler:

    “Micronutrients” for cancer. Just like the yoga-mat chemicals in “eat fresh” subway sandwiches.

  8. 8
    Suido

    I’m looking forward to the yoga-mat diet craze.

  9. 9
    Konradius

    > The ingredients section makes it sound like there’s as much pomegranate juice as apple and grape.

    Actually, the labelling clearly lists the ingredients by largest amount first (so apple, grape, pomegranate, blueberry and apparently raspberry in not yet homeopathic concentrations).

    I’d love to see clearer ingredients lists with mandatory percentages, but you can hardly blame corporations from following laws to the letter.
    I’d also love to see ridiculous words like ‘natural’ and ‘biological’ disappear from labelling, but all these changes need real laws to get changed (or if we’re really dreaming, an informed populace)…

  10. 10
    A. Noyd

    Konradius (#9)

    Actually, the labelling clearly lists the ingredients by largest amount first

    Yes, I understand how ingredient listing conventions work, but they list the first three together as “apple, grape and pomegranate juices” instead of listing them separately. With other products, they’re more honest about how little of a certain juice the product contains.

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