23 Apr 2014 Coke vs POM in US Supreme Court
Several legal experts interviewed by Ad Age said they expect the Supreme Court will rule in favor of POM, which is seeking approval to challenge Coca-Cola’s labelling using the Lanham Act, a federal law businesses use when suing each other over false ad claims.
If POM wins, the pomegranate juice brand will have the opportunity to argue that Coca-Cola has misled consumers with a “pomegranate blueberry” product that contains 0.3% pomegranate juice and 0.2% blueberry juice. A decision is expected in June.
“It seems quite obvious that the court is highly skeptical of Coca-Cola’s arguments,” said Robert Bader, an attorney with Goodwin Procter. “There’s an overriding distaste for the fact that, at least from their perspective, the label on the juice is false, misleading. … It would be hard for them to say, ‘POM, your claims can not go forward,’ when the label is in their eyes, and in the eyes of most in the public, misleading.”
The justices questioned Coca-Cola closely on the label of its Minute Maid product. “I think it’s relevant for us to ask whether people are cheated in buying this product, ” said Justice Anthony Kennedy.
Kathleen Sullivan, who argued on behalf of Coca-Cola, said the company doesn’t believe “consumers are quite as unintelligent as Pom must think they are.”
In response, Justice Kennedy said, “don’t make me feel bad because I thought that this was pomegranate juice.”
A POM spokeswoman said the company was “pleased” with today’s hearing.
“A majority of the justices, including Chief Justice John Roberts, sharply questioned Coke’s lawyers about why their so-called ‘Pomegranate-Blueberry Juice’ label should not be considered misleading when the product itself contains trivial amounts of either of those juices,” the spokeswoman said.
“We brought this case because we strongly believe that no food producer should be immune from suits for false statements on its product label. The only point of including these two juices is so Coca-Cola can use a name that has the obvious purpose to mislead consumers about what they are buying.”
Coca-Cola continued to defend its labeling, pointing out that it is in compliance with FDA regulations, even as Justice Kennedy said it is “doubtful that the FDA has sufficient resources to police food and beverage labelling.”
Added Chief Justice John Roberts, “I don’t know that the FDA has any expertise in terms of consumer confusion, apart from any health issues.”
A Coca-Cola spokesman said, “We are committed to clear and accurate labelling of our products in accordance with all applicable FDA regulations, and we are confident that our labelling fully complies with those regulations.”
If the Supreme Court rules in favour of PoOM, it could open the door to more competitive lawsuits under the Lanham Act….
AdAge: Read the full article
COMMENT: By Bob Messenger, foremost US food industry observer
“Justices sure sound sympathetic to complaints of POM Wonderful vs Coca-Cola”
When POM Wonderful first sued Coca-Cola Co for what it said were false advertising claims behind Coke’s “Pomegranate Blueberry Flavored Blend of 5 Juices,” I thought, buckle up, POM, you’re about to have your little beverage butt handed to you by a giant with a bevy of talented lawyers ready to defend it.
And when the 9th US Circuit Court of Appeals ruled for Coke, I felt the gig was up. But here POM is, arguing before the Supreme Court that Coke ‘misled’ consumers by highlighting pomegranate and blueberry on its label when pomegranate and blueberry were just bit players in the total mixture of five juice blends.
Coke, of course, argues that its label is perfectly legal, and it is. But to hear the comments of the justices Monday, you’d walk away thinking, oh-oh, Coca-Cola may be in trouble. In fact, Justice Anthony Kennedy told the Coca-Cola lawyer: “Don’t make me feel bad because I thought this was pomegranate juice.”
Look, it’s true, there’s not much pomegranate juice in Coke’s blend of five juices, but it’s also true that Coca-Cola’s label is in compliance with FDA requirements. Yet from the tone of Monday’s debate, POM Wonderful must be feeling pretty good.
But remember, it’s the Supreme Court, and what the justices say during arguments is not a trustworthy reflection of how they will rule.