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.