Ninth Circuit Concludes That Food, Drug, and Cosmetic Act Trumps False Advertising Lanham Act Claim

Both Pom Wonderful and Coca-Cola apparently sell pomegranate juice blends.  Coca-Cola's is named either (the parties apparently disputed what the actual name was) "Pomegranate Blueberry" or "Pomegranate Blueberry Flavored Blend of 5 Juices."  Coca-Cola's juice contained only 0.3% pomegranate juice and 0.2% blueberry juice; the juice was primarily comprised of apple and grape juices.

Pom sued alleging, in part, that the name, labeling, marketing, and advertising of Coca-Cola's juice violated the Lanham Act's false advertising provision.  On Coca-Cola's motion to dismiss and later on summary judgment, the district court concluded that Pom's Lanham Act challenge to the name and labeling of Coca-Cola's juice was barred because it could be construed as an impermissible challenge to the FDA regulations permitting the name and labeling and could improperly require the court to interpret and apply the FDA's labeling regulations under the Food, Drug, and Cosmetic Act ("FDCA").

Faced with a potential conflict between the Lanham Act and the FDCA, the Ninth Circuit tries to give as much effect as possible to both statutes.  But the FDCA did limit claims under the Lanham Act, even in cases where the FDA had not concluded that particular conduct violated the FDCA where the claim would require litigating the question of whether the conduct did violate the FDCA.  In short, "the Lanham Act may not be used as a vehicle to usurp, preempt, or undermine FDA authority."

The Ninth Circuit agreed with the district court that this presented a case where Pom's Lanham Act claim regarding the name and labeling of Coca-Cola's juice was barred by the FDCA and its regulations.

As to the naming portion of Pom's claim, the Ninth Circuit found that FDA regulations appeared to authorize Coca-Cola's name.  Therefore, allowing Pom's challenge would create a conflict with the regulations and undermine the FDA's determination that naming the product like Coca-Cola did is not misleading.  The Ninth Circuit reached the same conclusion with respect to Pom's labeling claim.

But the Ninth Circuit vacated the summary judgment with respect to the district court's conclusion that Pom lacked standing under California's Unfair Competition Law and False Advertising Law.  It also remanded for the court to address standing, preemption and similar issues with respect to Pom's state law claims.

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

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