Supreme Court Upholds Lanham Act Claim in Juice Wars

Pomegranate juice is the subject of an intense legal battle between POM Wonderful, LLC (POM) and Coca-Cola Company (Coke). In its Lanham Act challenge, POM alleges that Coke's juice product's name, label, marketing and advertising mislead consumers into thinking the product is mostly a pomegranate and blueberry juice when it in fact is mostly apple and grape juice. POM further alleges that Coke's tactics have caused POM to lose sales. Coke counters that it meets Federal Drug and Cosmetics Act (FDCA) requirements for its juice name and label, and that the FDCA's regulations preclude any Lanham Act claim. The viability of the Lanham Act challenge traveled all the way to the U.S. Supreme Court, and in April 2014, the Court issued its ruling on “the intersection and complementarity of two federal laws” and “whether a private party may bring a Lanham Act claim challenging a food label that is regulated by the [FDCA].” Ultimately, the Supreme Court supported POM's ability to bring its Lanham Act claims, despite the fact that Coke's product complied with the FDCA's requirements.

Factual Background

On its website, POM calls itself the “largest grower of pomegranates in the United States.” Among its offerings, the company sells “POM WONDERFUL” brand bottled pomegranate juice and a pomegranate blueberry juice blend. Its competitor, Coke, markets a “pomegranate blueberry flavored” juice. Coke's product is 99.4% apple and grape juice, 0.3% pomegranate juice, 0.2% blueberry juice, and .1% raspberry juice. The parties could not agree on the name of the product, with POM saying it is called “Pomegranate Blueberry” and Coke retorting that the full name is “Pomegranate Blueberry Flavored Blend of 5 Juices.”

Coke's product label includes the disclaimer in small script print “enhanced juice” above the Minute Maid trademark. Directly below the trademark, the label refers to “100% fruit juice blend.” Next, the label contains a boxed claim that the Omega'3/DHA contained in the product will “help nourish your brain” with “5 nutrients to support brain and body.” Directly below that box is an artist's rendering showing half a pomegranate, half an apple, and three blueberries, three grapes and two raspberries. Finally, on the bottom of the label, the words “pomegranate blueberry” are portrayed in all capitals, and in smaller capital letters directly below, the label reads “flavored blend of 5 juices.” The largest fonts are dedicated to the trademark Minute Maid and the boxed claims about nutrition.

In September 2008, POM sued for misleading labeling and advertising under the Lanham Act. POM's lawsuit claims that Coke violated the Lanham Act's false advertising section (15 U.S.C. '1125(a)), as well as California's unfair competition and false advertising laws. (Cal. Bus. & Prof'l Code '18200 et seq; id. Section 17500 et. seq.)

POM alleged that Coke's Minute Maid product of pomegranate and blueberry flavored juice blend, made up of primarily apple and grape juice, bears a deceptive label and “many misleading elements not required by federal or state requirements.” POM argues that the label misleads consumers into thinking the product is mostly pomegranate and blueberry juices, when in fact, it only contains “trivial amounts.” POM's complaint asserts that these misleading characteristics have injured its “business, reputation, and goodwill,” and POM sought damages, profits, and an injunction.

POM introduced survey evidence showing 36% of consumers believed that the juice contains mostly pomegranate and blueberry juice. In addition, through discovery, POM found evidence that Coke “received a record number of complaints” about this product. In fact, one internal Coke e-mail before the product launch conceded the possibility of consumer confusion but said that the President and General Manager of Minute Maid is “willing to assume the risk.”

In rebutting this evidence, Coke, cited the art on the label that shows all the fruits used in the product, as well as all the other disclaimers on the label. It also argued that the product name and label meet federal labeling standards.

Regulatory Background

The Lanham Act has trademark provisions to stave off unfair competition, but it also prohibits false advertising and authorizes private suits against those who use a false or misleading description or representation of the “nature, characteristics, [or] qualities” of their goods. The statute is designed to protect and compensate a private party for the damages that flow from such deceptive statements. The Supreme Court noted: “Though in the end, consumers also benefit from the Act's proper enforcement, the cause of action is for competitors, not consumers.”

At first, POM's cause of action appears to be a “straightforward” claim under the Lanham Act, but Coke argued that the FDCA precluded POM's Lanham Act claim. The FDCA regulates food and beverage labeling and only permits enforcement by the FDA or Department of Justice. The relevant section of the FDCA, 21 U.S.C. '343, defines misbranding of food. If the label is false or misleading or if disclosures on the label are “not prominently placed thereon with such conspicuousness ' and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use.”

The FDA has issued regulations to interpret the statute that address specifically naming and labeling juice beverages. See, 21 C.F.R '102.33. The FDA regulations require that juice labels that include the names of the juices “must be [named] in descending order of predominance by volume unless the name specifically shows that [a non-predominant] juice [supplying a] represented flavor is used as a flavor (e.g., raspberry-flavored apple and pear juice drink).” The regulations also require that if multiple juices are in the product, then the name must indicate that it is a blend and that the non-predominant juice is used as a flavor. It is undisputed that Coke's label meets the FDA's requirements.

The Supreme Court noted: “[T]he FDCA and its regulations provide the United States with nearly exclusive enforcement authority'. Private parties may not bring enforcement suits.” On the other hand, the Lanham Act “relies in substantial part for its enforcement on private suits brought by injured competitors.”

The issue in this case was whether a false advertising case under the Lanham Act can proceed, even if a product's name and label meet the minimum standards established by the FDA's regulations.

Petition Before Supreme Court

The Supreme Court granted certiorari after the District Court and the Ninth Circuit barred POM's Lanham Act claim. The Ninth Circuit ruled that a plaintiff could not bring suit under the Lanham Act in an area where the FDCA governs, since Congress intended the federal authorities to enforce the FDCA, not private parties. (For a more detailed discussion of the Ninth Circuit opinion, see this author's previous article in the March 2014 edition of this publication, “Pom v. Coke Could Create a Juicy Precedent on Food Labels.”)

Following the Ninth Circuit decision, POM entered a petition for a writ of certiorari before the United States Supreme Court. After arguing that the Court of Appeal's decision created a conflict among the circuits about reconciling potentially overlapping federal statutes, POM focused its arguments on alleged fallacies in the court's reasoning. It noted that: “[T]he Court of Appeals reached its conclusion that the FDCA barred POM's Lanham Act claim without identifying a single provision of the FDCA that purports to displace the Lanham Act or even conflicts with it.” In addition, POM pointed out a scenario under which Coke could have complied with the FDA regulations “and marketed a product that was not misleading under the Lanham Act.”

POM further argued that the Lanham Act's purpose “is not just [to protect] consumers from being misled; it is intended to protect businesses from unfair competitive acts by providing a private cause of action to a commercial plaintiff that has been harmed by a competitor's false advertising.” The FDCA, on the other hand, protects consumers, but does not provide any redress to a competitor who has been harmed. Consequently, POM argued that its suit does not create an “irreconcilable conflict” with the FDCA, the standard enunciated by the U.S. Supreme Court repeatedly. POM also cited to the Supreme Court case Wyeth v. Levine, 555 U.S. 555 (2009) which established that “the FDCA sets a floor for regulation upon which other laws can build, not a ceiling.” POM finally argued that “[t]he Ninth Circuit made no effort to reconcile the Lanham Act with the FDCA.”

Coke responded by reminding the Supreme Court that the product's name and label had been specifically authorized by the FDA's regulations and deemed “not misleading,” thereby prohibiting a private cause of action under the Lanham Act. Coke pointed out a line of precedents that deferred to the FDA and its “mandatory regulatory scheme,” and argued that “manufacturers should not be exposed to lawsuits by competitors under the Lanham Act simply because they have adhered to these FDA prescriptions.”

Coke also distinguished the Supreme Court's precedent in Wyeth, arguing that it was a preemption case concerning the state's ability to regulate drug labeling. It also argued that the FDA enacted its regulations based on its considerable expertise and to create standards for beverage manufacturers. If the Supreme Court allowed POM's case to proceed, it would pave the way for confusion in the marketplace, as uninformed judges and juries establish a maze of requirements for juice labels. In a final jab at POM, Coke reminded the Supreme Court that the federal government has the ability to regulate the juice industry and in fact had chosen to do so several times by investigating POM for false and deceptive marketing practices. Coke stated “the Government does not need allies like POM to help it fight deception in the realm of juice labeling.”

The United States Amicus Brief

The United States government filed an amicus curiae brief arguing that while the court of appeals reached an incorrect holding, the Supreme Court should not grant certiorari. The Solicitor General took issue with the Court of Appeals reasoning that the FDA's failure to regulate certain features of Coke's labeling precludes a Lanham Act claim. The brief complained that the Ninth Circuit's “reasoning endowed the FDCA's food labeling provisions with too broad a preclusive reach.”

The brief also noted that the preamble to the FDA's juice labeling rule leaves room for particular labels to be misleading even if they complied with the provisions. Consequently, if the FDA's lack of action preempted all Lanham Act claims, then it would do so for foods that the FDA does not regulate at all. The Solicitor General also noted that previous precedents exist for challenging food labels with the Lanham Act, and Congress has had an opportunity and yet failed to “[address] the application of section 43a of the Lanham Act to food labels.”

Finally, the United States brief argued that the FDA “has no authority to resolve the competitor's claim of competitive injury due to a misleading label.” Even if the FDA were to promulgate new regulations, it could not address competitive injury, meaning that there still would be room for a Lanham Act claim. Therefore, the United States concluded that the court of appeals ruled in error.

Nonetheless, the United States amicus brief argued against granting certiorari. It asserted that there is no circuit court confusion and the factual record in the case is sufficiently unclear as to the “product-name/product-label dichotomy necessary for a sound treatment of the question presented.”

The Supreme Court Decision

The Supreme Court ruled in POM's favor. Noting that this case was a preclusion case, rather than a preemption case, because it did not concern state law, the Supreme Court gave no weight to preemption precedent. In addition, as a statutory interpretation case, the Supreme Court relied on “traditional rules of statutory interpretation,” regardless of the fact that multiple federal statutes were involved. In ruling for POM, the Supreme Court cited several factors:

First, if Congress had wanted to bar unfair competition claims like POM's, it would have done so in the 70 years that the statutes have coexisted. In fact, nothing in either statute expressly bars “Lanham Act claims challenging labels that are regulated by the FDCA.” The Supreme Court cited language from Wyeth that Congress' failure to act is “'powerful evidence that Congress did not intend FDA oversight to be the exclusive means of ensuring proper food and beverage labeling.”

Second, regarding the argument that the FDCA precludes a Lanham Act claim, the Supreme Court examined the preemption provision added to the FDCA in 1990 with the Nutrition Labeling and Education Act (NLEA). This clause had narrow preemption implications and did not refer to federal statutes. In fact, the Court concluded, “pre-emption of some state requirements does not suggest an intent to preclude federal claims.” The Court also ruled against preclusion because the Lanham Act and the FDCA complement each other, with the Lanham Act protecting commercial interests and the FDCA targeting public health. In addition, the Lanham Act remedies are important for ensuring that “manufacturers ' behave well.” Noting that competitors know more about the marketplace than the FDA, the Court concluded that the Lanham Act also embodies an important remedy that Congress intended to be distinct from the FDCA's and outside FDCA jurisdiction. In short, “it is unlikely that Congress intended the FDCA's protection of health and safety to result in less policing of misleading food and beverage labels that in competitive markets for other products.”

Coke had also argued that “Congress had intended national uniformity in food and beverage labeling.” The Court's opinion debunks Coke's arguments. Despite the centralization of FDCA enforcement, Congress did not intend “to foreclose private enforcement of other federal statutes.” Coke argued that allowing POM to proceed would create variable requirements regarding food and beverage labeling in contravention of the preemption provision added to the FTCA in 1990. Again, however, the Court found this provision applied only to the states. Finally, the Court ruled that Congress did not intend to eliminate all variability: “The variability about which [Coke] complains is no different than the variability that any industry covered by the Lanham Act faces. And, as noted, Lanham Act actions are a means to implement the uniform policy to prohibit unfair competition in all covered markets.” Regardless of the additional specificity in the FTCA's regulations, these regulations serve a completely different purpose from the Lanham Act's goals.

Finally, the Court examined the arguments made in the United States government's amicus brief, which had argued that POM's Lanham Act challenge could target all aspects of the Coke label except the product name, since the FDA regulates the names of juice blends. The Supreme Court disagreed because the FDCA and its regulations are not a “ceiling on the regulation of food and beverage labeling.” The Supreme Court did not believe that POM's challenge to the product name “undermin[es] an agency judgment, and in any event the FDA does not have authority to enforce the Lanham Act.”

Conclusion

The Supreme Court did not rule on the merits of the case, instead remanding it back to the Ninth Circuit. At the same time, the court's opinion makes it clear that there can be Lanham Act liability for food and beverage labeling practices that “mislead and trick consumers, all to the injury of competitors.” While this precedent could keep food and beverage manufacturers in the line of fire for private lawsuits, it also secures the Lanham Act claim as a powerful tool to combat unfair competition.

Kyle-Beth Hilfer, Esq., specializes in advertising, marketing, promotions, intellectual property and new media law. A member of this newsletter's Board of Editors, she is Of Counsel to the law firm Collen IP. She advises clients regularly on their advertising strategies and campaigns to ensure compliance with the Lanham Act and other related statutes. For more information about her law practice, please visit www.kbhilferlaw.com. ' Kyle-Beth Hilfer, P.C. 2014.

Pomegranate juice is the subject of an intense legal battle between POM Wonderful, LLC (POM) and Coca-Cola Company (Coke). In its Lanham Act challenge, POM alleges that Coke's juice product's name, label, marketing and advertising mislead consumers into thinking the product is mostly a pomegranate and blueberry juice when it in fact is mostly apple and grape juice. POM further alleges that Coke's tactics have caused POM to lose sales. Coke counters that it meets Federal Drug and Cosmetics Act (FDCA) requirements for its juice name and label, and that the FDCA's regulations preclude any Lanham Act claim. The viability of the Lanham Act challenge traveled all the way to the U.S. Supreme Court, and in April 2014, the Court issued its ruling on “the intersection and complementarity of two federal laws” and “whether a private party may bring a Lanham Act claim challenging a food label that is regulated by the [FDCA].” Ultimately, the Supreme Court supported POM's ability to bring its Lanham Act claims, despite the fact that Coke's product complied with the FDCA's requirements.

Factual Background

On its website, POM calls itself the “largest grower of pomegranates in the United States.” Among its offerings, the company sells “POM WONDERFUL” brand bottled pomegranate juice and a pomegranate blueberry juice blend. Its competitor, Coke, markets a “pomegranate blueberry flavored” juice. Coke's product is 99.4% apple and grape juice, 0.3% pomegranate juice, 0.2% blueberry juice, and .1% raspberry juice. The parties could not agree on the name of the product, with POM saying it is called “Pomegranate Blueberry” and Coke retorting that the full name is “Pomegranate Blueberry Flavored Blend of 5 Juices.”

Coke's product label includes the disclaimer in small script print “enhanced juice” above the Minute Maid trademark. Directly below the trademark, the label refers to “100% fruit juice blend.” Next, the label contains a boxed claim that the Omega'3/DHA contained in the product will “help nourish your brain” with “5 nutrients to support brain and body.” Directly below that box is an artist's rendering showing half a pomegranate, half an apple, and three blueberries, three grapes and two raspberries. Finally, on the bottom of the label, the words “pomegranate blueberry” are portrayed in all capitals, and in smaller capital letters directly below, the label reads “flavored blend of 5 juices.” The largest fonts are dedicated to the trademark Minute Maid and the boxed claims about nutrition.

In September 2008, POM sued for misleading labeling and advertising under the Lanham Act. POM's lawsuit claims that Coke violated the Lanham Act's false advertising section (15 U.S.C. '1125(a)), as well as California's unfair competition and false advertising laws. (Cal. Bus. & Prof'l Code '18200 et seq; id. Section 17500 et. seq.)

POM alleged that Coke's Minute Maid product of pomegranate and blueberry flavored juice blend, made up of primarily apple and grape juice, bears a deceptive label and “many misleading elements not required by federal or state requirements.” POM argues that the label misleads consumers into thinking the product is mostly pomegranate and blueberry juices, when in fact, it only contains “trivial amounts.” POM's complaint asserts that these misleading characteristics have injured its “business, reputation, and goodwill,” and POM sought damages, profits, and an injunction.

POM introduced survey evidence showing 36% of consumers believed that the juice contains mostly pomegranate and blueberry juice. In addition, through discovery, POM found evidence that Coke “received a record number of complaints” about this product. In fact, one internal Coke e-mail before the product launch conceded the possibility of consumer confusion but said that the President and General Manager of Minute Maid is “willing to assume the risk.”

In rebutting this evidence, Coke, cited the art on the label that shows all the fruits used in the product, as well as all the other disclaimers on the label. It also argued that the product name and label meet federal labeling standards.

Regulatory Background

The Lanham Act has trademark provisions to stave off unfair competition, but it also prohibits false advertising and authorizes private suits against those who use a false or misleading description or representation of the “nature, characteristics, [or] qualities” of their goods. The statute is designed to protect and compensate a private party for the damages that flow from such deceptive statements. The Supreme Court noted: “Though in the end, consumers also benefit from the Act's proper enforcement, the cause of action is for competitors, not consumers.”

At first, POM's cause of action appears to be a “straightforward” claim under the Lanham Act, but Coke argued that the FDCA precluded POM's Lanham Act claim. The FDCA regulates food and beverage labeling and only permits enforcement by the FDA or Department of Justice. The relevant section of the FDCA, 21 U.S.C. '343, defines misbranding of food. If the label is false or misleading or if disclosures on the label are “not prominently placed thereon with such conspicuousness ' and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use.”

The FDA has issued regulations to interpret the statute that address specifically naming and labeling juice beverages. See, 21 C.F.R '102.33. The FDA regulations require that juice labels that include the names of the juices “must be [named] in descending order of predominance by volume unless the name specifically shows that [a non-predominant] juice [supplying a] represented flavor is used as a flavor (e.g., raspberry-flavored apple and pear juice drink).” The regulations also require that if multiple juices are in the product, then the name must indicate that it is a blend and that the non-predominant juice is used as a flavor. It is undisputed that Coke's label meets the FDA's requirements.

The Supreme Court noted: “[T]he FDCA and its regulations provide the United States with nearly exclusive enforcement authority'. Private parties may not bring enforcement suits.” On the other hand, the Lanham Act “relies in substantial part for its enforcement on private suits brought by injured competitors.”

The issue in this case was whether a false advertising case under the Lanham Act can proceed, even if a product's name and label meet the minimum standards established by the FDA's regulations.

Petition Before Supreme Court

The Supreme Court granted certiorari after the District Court and the Ninth Circuit barred POM's Lanham Act claim. The Ninth Circuit ruled that a plaintiff could not bring suit under the Lanham Act in an area where the FDCA governs, since Congress intended the federal authorities to enforce the FDCA, not private parties. (For a more detailed discussion of the Ninth Circuit opinion, see this author's previous article in the March 2014 edition of this publication, “Pom v. Coke Could Create a Juicy Precedent on Food Labels.”)

Following the Ninth Circuit decision, POM entered a petition for a writ of certiorari before the United States Supreme Court. After arguing that the Court of Appeal's decision created a conflict among the circuits about reconciling potentially overlapping federal statutes, POM focused its arguments on alleged fallacies in the court's reasoning. It noted that: “[T]he Court of Appeals reached its conclusion that the FDCA barred POM's Lanham Act claim without identifying a single provision of the FDCA that purports to displace the Lanham Act or even conflicts with it.” In addition, POM pointed out a scenario under which Coke could have complied with the FDA regulations “and marketed a product that was not misleading under the Lanham Act.”

POM further argued that the Lanham Act's purpose “is not just [to protect] consumers from being misled; it is intended to protect businesses from unfair competitive acts by providing a private cause of action to a commercial plaintiff that has been harmed by a competitor's false advertising.” The FDCA, on the other hand, protects consumers, but does not provide any redress to a competitor who has been harmed. Consequently, POM argued that its suit does not create an “irreconcilable conflict” with the FDCA, the standard enunciated by the U.S. Supreme Court repeatedly. POM also cited to the Supreme Court case Wyeth v. Levine, 555 U.S. 555 (2009) which established that “the FDCA sets a floor for regulation upon which other laws can build, not a ceiling.” POM finally argued that “[t]he Ninth Circuit made no effort to reconcile the Lanham Act with the FDCA.”

Coke responded by reminding the Supreme Court that the product's name and label had been specifically authorized by the FDA's regulations and deemed “not misleading,” thereby prohibiting a private cause of action under the Lanham Act. Coke pointed out a line of precedents that deferred to the FDA and its “mandatory regulatory scheme,” and argued that “manufacturers should not be exposed to lawsuits by competitors under the Lanham Act simply because they have adhered to these FDA prescriptions.”

Coke also distinguished the Supreme Court's precedent in Wyeth, arguing that it was a preemption case concerning the state's ability to regulate drug labeling. It also argued that the FDA enacted its regulations based on its considerable expertise and to create standards for beverage manufacturers. If the Supreme Court allowed POM's case to proceed, it would pave the way for confusion in the marketplace, as uninformed judges and juries establish a maze of requirements for juice labels. In a final jab at POM, Coke reminded the Supreme Court that the federal government has the ability to regulate the juice industry and in fact had chosen to do so several times by investigating POM for false and deceptive marketing practices. Coke stated “the Government does not need allies like POM to help it fight deception in the realm of juice labeling.”

The United States Amicus Brief

The United States government filed an amicus curiae brief arguing that while the court of appeals reached an incorrect holding, the Supreme Court should not grant certiorari. The Solicitor General took issue with the Court of Appeals reasoning that the FDA's failure to regulate certain features of Coke's labeling precludes a Lanham Act claim. The brief complained that the Ninth Circuit's “reasoning endowed the FDCA's food labeling provisions with too broad a preclusive reach.”

The brief also noted that the preamble to the FDA's juice labeling rule leaves room for particular labels to be misleading even if they complied with the provisions. Consequently, if the FDA's lack of action preempted all Lanham Act claims, then it would do so for foods that the FDA does not regulate at all. The Solicitor General also noted that previous precedents exist for challenging food labels with the Lanham Act, and Congress has had an opportunity and yet failed to “[address] the application of section 43a of the Lanham Act to food labels.”

Finally, the United States brief argued that the FDA “has no authority to resolve the competitor's claim of competitive injury due to a misleading label.” Even if the FDA were to promulgate new regulations, it could not address competitive injury, meaning that there still would be room for a Lanham Act claim. Therefore, the United States concluded that the court of appeals ruled in error.

Nonetheless, the United States amicus brief argued against granting certiorari. It asserted that there is no circuit court confusion and the factual record in the case is sufficiently unclear as to the “product-name/product-label dichotomy necessary for a sound treatment of the question presented.”

The Supreme Court Decision

The Supreme Court ruled in POM's favor. Noting that this case was a preclusion case, rather than a preemption case, because it did not concern state law, the Supreme Court gave no weight to preemption precedent. In addition, as a statutory interpretation case, the Supreme Court relied on “traditional rules of statutory interpretation,” regardless of the fact that multiple federal statutes were involved. In ruling for POM, the Supreme Court cited several factors:

First, if Congress had wanted to bar unfair competition claims like POM's, it would have done so in the 70 years that the statutes have coexisted. In fact, nothing in either statute expressly bars “Lanham Act claims challenging labels that are regulated by the FDCA.” The Supreme Court cited language from Wyeth that Congress' failure to act is “'powerful evidence that Congress did not intend FDA oversight to be the exclusive means of ensuring proper food and beverage labeling.”

Second, regarding the argument that the FDCA precludes a Lanham Act claim, the Supreme Court examined the preemption provision added to the FDCA in 1990 with the Nutrition Labeling and Education Act (NLEA). This clause had narrow preemption implications and did not refer to federal statutes. In fact, the Court concluded, “pre-emption of some state requirements does not suggest an intent to preclude federal claims.” The Court also ruled against preclusion because the Lanham Act and the FDCA complement each other, with the Lanham Act protecting commercial interests and the FDCA targeting public health. In addition, the Lanham Act remedies are important for ensuring that “manufacturers ' behave well.” Noting that competitors know more about the marketplace than the FDA, the Court concluded that the Lanham Act also embodies an important remedy that Congress intended to be distinct from the FDCA's and outside FDCA jurisdiction. In short, “it is unlikely that Congress intended the FDCA's protection of health and safety to result in less policing of misleading food and beverage labels that in competitive markets for other products.”

Coke had also argued that “Congress had intended national uniformity in food and beverage labeling.” The Court's opinion debunks Coke's arguments. Despite the centralization of FDCA enforcement, Congress did not intend “to foreclose private enforcement of other federal statutes.” Coke argued that allowing POM to proceed would create variable requirements regarding food and beverage labeling in contravention of the preemption provision added to the FTCA in 1990. Again, however, the Court found this provision applied only to the states. Finally, the Court ruled that Congress did not intend to eliminate all variability: “The variability about which [Coke] complains is no different than the variability that any industry covered by the Lanham Act faces. And, as noted, Lanham Act actions are a means to implement the uniform policy to prohibit unfair competition in all covered markets.” Regardless of the additional specificity in the FTCA's regulations, these regulations serve a completely different purpose from the Lanham Act's goals.

Finally, the Court examined the arguments made in the United States government's amicus brief, which had argued that POM's Lanham Act challenge could target all aspects of the Coke label except the product name, since the FDA regulates the names of juice blends. The Supreme Court disagreed because the FDCA and its regulations are not a “ceiling on the regulation of food and beverage labeling.” The Supreme Court did not believe that POM's challenge to the product name “undermin[es] an agency judgment, and in any event the FDA does not have authority to enforce the Lanham Act.”

Conclusion

The Supreme Court did not rule on the merits of the case, instead remanding it back to the Ninth Circuit. At the same time, the court's opinion makes it clear that there can be Lanham Act liability for food and beverage labeling practices that “mislead and trick consumers, all to the injury of competitors.” While this precedent could keep food and beverage manufacturers in the line of fire for private lawsuits, it also secures the Lanham Act claim as a powerful tool to combat unfair competition.

Kyle-Beth Hilfer, Esq., specializes in advertising, marketing, promotions, intellectual property and new media law. A member of this newsletter's Board of Editors, she is Of Counsel to the law firm Collen IP. She advises clients regularly on their advertising strategies and campaigns to ensure compliance with the Lanham Act and other related statutes. For more information about her law practice, please visit www.kbhilferlaw.com. ' Kyle-Beth Hilfer, P.C. 2014.