Ninth Circuit: FDA Regulations Broadly Preempt Food Labeling Claims

Last week, the Ninth Circuit issued a broad FDA preemption ruling that elbows aside federal deceptive-labeling claims in the latest slugfest between Pom Wonderful and Coca-Cola that has been going on for almost five years. The decision is important because it finds preemption against a backdrop in which the FDA had not acted, and finds a competitor's Lanham Act claims preempted simply because the FDA "can act." This was a competitor-versus-competitor Lanham Act case, but the breadth of the holding should spill over into consumer cases brought under state false advertising laws. That Pom Wonderful emerged from the Ninth Circuit—a circuit notoriously unfriendly to FDA preemption arguments—makes this ruling all the more remarkable.

FACTS

Pom Wonderful ("Pom") produces, markets, and sells bottled pomegranate juice and pomegranate juice blends. In 2007, Coca-Cola, under its Minute Maid brand, announced a new product called, "Pomegranate Blueberry Flavored Blend of 5 Juices." Pom sued, alleging that by using the product's name ("Pomegranate") and its labeling, Coca-Cola misled consumers into thinking that the product consisted primarily of pomegranate and blueberry juices when, in fact, it was consisted of over 99% apple and grape juices. Pom brought claims under the false-advertising provision of the federal Lanham Act, as well as state law claims under California's Unfair Competition Law ("UCL") and False Advertising Law ("FAL").

THE NINTH CIRCUIT'S DEFERENCE TO THE FDA

The Central District granted summary judgment to Coca-Cola. On appeal, the Ninth Circuit affirmed the dismissal of the federal claim and remanded the state law claims back to the district court for reconsideration of standing issues.

Lanham Act. The Ninth Circuit noted the potential conflict between the Lanham Act and the FDCA, stating that the Lanham Act "broadly prohibits false advertising," while the FDCA "comprehensively regulates food and beverage labeling." However, the Court ruled that the FDCA trumps and can limit Lanham Act claims. The Ninth Circuit acknowledged "Congress's decision to entrust to the FDA the task of interpreting and enforcing the FDCA." Citing its own precedent in PhotoMedex1, the Ninth Circuit gave considerable deference to the FDA in stating that where "the FDA has not concluded that particular conduct violates the FDCA ... a Lanham Act claim may not be pursued if the claim would require litigating whether that conduct violates the FDCA." The Court...