Pom Wonderful And Consumer Class Actions Under State Law

The newest wave of false advertising consumer class actions asserts that consumer labeling or marketing violates state unfair competition laws by confusing (or potentially confusing) consumers. While brought under state consumer protection laws, many are sparked by some sort of Food and Drug Administration or other agency action, or involve products or labeling regulated by the FDA. The result is a delicate interplay between, on the one hand, what is allowed, what is required and what is prohibited under federal law; and on the other hand, what is required under a given state's consumer protection law. This interplay, however, does not always provide straightforward guidance to manufacturers marketing their wares.

Additional guidance may soon arrive from the U.S. Supreme Court. On April 21, the court is scheduled to hear oral argument on whether a private action may be brought by a competitor under the Lanham Act for deceptive labeling and marketing that allegedly creates a likelihood of confusion even when the product's labeling complies with FDA regulations that govern deception and confusion in food labeling. The case before the court, Pom Wonderful LLC v. Coca-Cola Co., will require the justices to weigh a competitor's private action under the federal Lanham Act against the regulatory structure of the federal Food, Drug and Cosmetics Act (FDCA). Since many state consumer protection statutes contain Lanham Act "likelihood of confusion" prohibitions, the court's decision also may inform consumer protection actions brought under state law.

The Pom Wonderful case began as a claim in a California district court involving Coca-Cola's Minute Maid Pomegranate Blueberry juice blend. Although labeled as a pomegranate blueberry juice blend, the drink actually was 99.4 percent apple and grape juices, 0.3 percent pomegranate, 0.2 blueberry juice and 0.1 percent raspberry juice. Pom Wonderful—Coca-Cola's competitor—claimed that the font size of the words "Pomegranate Blueberry" was larger than "Flavored Blend of 5 juices," thereby deceiving consumers about the predominance of pomegranate and blueberry in the juice blend. The district court granted summary judgment to Coca-Cola based on FDA regulations to the extent the claim challenged the name and labeling of the product, but denied summary judgment on marketing beyond the name and label. The district court concluded that the FDA had spoken directly through its regulations to allow juice...