POM No-so-wonderful?

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January 10, 2014 by Tamara Piety

POM Wonderful’s suit against Coca Cola for false advertising under the Lanham Act over Coca Cola’s pomegranate-blueberry juice drink, which POM Wonderful says has very little of either fruit in it, got new life today when the Supreme Court granted cert (review) of the 9th Circuit Court of Appeals’ ruling that a private party, to wit, POM Wonderful, cannot bring a lawsuit under the Lanham Act because that law only allows the government to sue for violations. Now the Supreme Court may decide otherwise, allowing POM Wonderful’s suit to proceed. The petition for cert and the decisions below are available over at SCOTUSblog here.

This is ironic given POM Wonderful’s own troubled history regarding what the Federal Trade Commission deemed misleading health claims about the wonders of drinking the company’s pomegranate juice. The FTC said those claims were “unsupported.”  POM Wonderful has, not surprisingly, appealed. Naturally, the company is arguing that it has a First Amendment right to make its health claims, that such claims are constitutionally protected.

Perhaps like POM’s health claims, Coca Cola’s name for its fruit drink is only “potentially misleading.” Still, it is a neat trick to sue others for false claims while fending off similar charges about your own product. One could conclude that contents are readily ascertainable and that the contents and ingredients are the sort of thing that ought to be truthful whereas more generalized claims about the health benefits of anti-oxidants might be seen to be subject to dispute. But I am not sure that makes it better.

On the First Amendment front I would think that even private enforcement might, these days, be challenged with a First Amendment claim relying on the precedent in New York Times v. Sullivan which was a private libel suit but to which the Supreme Court nevertheless applied stringent First Amendment standards. Perhaps Coca Cola could say that in naming the juice it is exercising artistic license and the courts ought to give manufacturers a certain amount of “breathing room” with respect to contents, after all, how much real fruit is in Fruit Loops?

Update: Indeed in its response to POM’s petition for cert it calls the label as displaying a “vingette” of the various fruits used in the juice. See here

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