Seattle Trademark Lawyer

The Lanham Act governs false advertising, including information contained on a product’s label.

The Food, Drug, and Cosmetic Act governs governs information contained on a product’s label when the product involves food, drugs, or cosmetics.

So which statute applies when they overlap and the standards conflict?

The Ninth Circuit addressed that question on May 17, when it decided Pom Wonderful LLC’s claim that Coca-Cola Co.’s “Pomegranate Blueberry” drink was deceptively named and labeled when the product consists of 99.4% apple and grape juices, and only 0.3% pomegranate juice and 0.2% blueberry juice.  (The remaining 0.1% consists of raspberry juice.)

Pom asserted a claim under the Lanham Act. Coca-Cola responded that the FDCA preempts the Lanham Act because it comprehensively regulates the labeling of food.

The Ninth Circuit agreed with Coca-Cola.

“In concluding that Pom’s claim is barred, we do not hold that Coca-Cola’s label is non-deceptive,” the court found. “Pom contends that the words ‘Pomegranate Blueberry’ appear in larger, more conspicuous type on Coca-Cola’s label than do the words ‘Flavored Blend of 5 Juices.’ If the FDA believes that this context misleads consumers, it can act. But the FDA has apparently not taken a view on whether Coca-Cola’s labeling misleads consumers — even though it has acted extensively and carefully in this field. (The FDA has not established a general mechanism to review juice beverage labels before they reach consumers, but the agency may act if it believes that a label in the market is deceptive.) As best we can tell, Coca-Cola’s label abides by the requirements the FDA has established. We therefore accept that Coca-Cola’s label presumptively complies with the relevant FDA regulations and thus accords with the judgments the FDA has so far made. Out of respect for the statutory and regulatory scheme before us, we decline to allow the FDA’s judgments to be disturbed.

“We do not suggest that mere compliance with the FDCA or with FDA regulations will always (or will even generally) insulate a defendant from Lanham Act liability. We are primarily guided in our decision not by Coca-Cola’s apparent compliance with FDA regulations but by Congress’s decision to entrust matters of juice beverage labeling to the FDA and by the FDA’s comprehensive regulation of that labeling. To give as much effect to Congress’s will as possible, we must respect the FDA’s apparent decision not to impose the requirements urged by Pom. And we must keep in mind that we lack the FDA’s expertise in guarding against deception in the context of juice beverage labeling. In the circumstances here, ‘the appropriate forum for [Pom’s] complaints is the [FDA].’”

The case cite is Pom Wonderful LLC v. Coca-Cola Co., __ F.3d. __, 2012 WL 1739704, No. 10-55861 (9th Cir. May 17, 2012).