It’s Memorial Day weekend, and it’s time for barbeques. While many of us will choose an alcoholic drink to enjoy during the festivities, there may be non-alcoholic drinks involved too. Maybe a nice juice drink. That usually means grape, apple or cranberry juice, or some combination of them. Lately some people are even choosing pomegranate juice. Yeah, we know, but some people are drinking it. But when those people pick their pomegranate juice, do they always know what they’re getting?
That’s what the plaintiff complained about in Pom Wonderful LLC, v. Coca-Cola Co., 2012 U.S. App. LEXIS 9921 (9th Cir. May 17, 2012). The plaintiff claimed that the defendant misled consumers with the naming and labeling of its juice product, “Pomegranate Blueberry” a/k/a “Pomegranate Blueberry Flavored Blend of 5 Juices,” because the drink actually contained only 0.3% pomegranate juice and 0.2% blueberry juice, with the vast majority of the juice being apple and grape. Id. at *2-3.
Now, this was a business dispute. The plaintiff was a rival juice distributor. But it has broader implications because it addresses what can happen when two federal statutes clash.
The plaintiff brought its claim under the Lanham Act, which broadly prohibits false advertising and authorizes a lawsuit by anyone who believes that s/he will likely be damaged by the false advertising. Id. at *7 (citing 15 U.S.C. § 1125(a). The FDCA, as we know, broadly regulates food and beverage labeling. But, while the Lanham Act authorizes private plaintiff lawsuits, the FDCA does not. It is solely enforced by the FDA. Id.
The plaintiff’s Lanham Act allegations at issue in the appeal were that (i) the name “Pomegranate Blueberry” misrepresented the actual contents of the drink, and (ii) the phrase “Flavored Blend of 5 Juices” was misleadingly smaller and less conspicuous than the name “Pomegranate Blueberry.”
But FDA regulations and the FDCA itself address naming beverages, the words and statements that must or may be included in labeling, and their prominence and conspicuousness. Id. at *11-14 (citing 21 U.S.C. §§343(f), (i); 21 C.F.R §§102.33 (c), (d)). That’s a conflict between plaintiff’s claims under the Lanham Act and the FDCA.
So which applies? The court noted that courts should “try to give as much effect to both statutes as possible.” Id. at *8 (citing Schering--Plough Healthcare Prods., Inc. v. Schwarz Pharma, Inc., 586 F.3d 500, 508 (7th Cir. 2009)). But when it comes to the FDCA, courts have focused on the fact that Congress entrusted the FDA with enforcement, not private plaintiffs. Under that reasoning, courts have held that the FDCA limits all sorts of Lanham Act claims:
A plaintiff may not, for example, sue under the Lanham Act to enforce the FDCA or its regulations because allowing such a suit would undermine Congress’s decision to limit enforcement of the FDCA to the federal government. Nor may a plaintiff maintain a Lanham Act claim that would require a court originally to interpret ambiguous FDA regulations, because rendering such an interpretation would usurp the FDA’s interpretive authority. Where the FDA has not concluded that particular conduct violates the FDCA, we have even held that a Lanham Act claim may not be pursued if the claim would require litigating whether that conduct violates the FDCA.
Id. at *8-9 (citations omitted).
Not surprisingly, then, the court held “that the FDCA and its regulations bar pursuit of both the name and labeling aspects of [plaintiff’s] Lanham Act claim.” Id. at *11. The Court reasoned, properly, that Congress and the FDA have already spoken to such naming and labeling and that the FDA, not litigants and the courts, should impose any further restrictions or, if it so finds, declare defendant’s label misleading:
Congress and the FDA have . . . considered and spoken to what content a label must bear, and the relative sizes in which the label must bear it, so as not to deceive. . . . [T]he FDA has not (so far as we can tell) required that all words in a juice blend’s name appear on the label in the same size or that words hew to some other standard that [plaintiff] might have us impose. If the FDA thought such a regulation were necessary . . . it could have said so. If the FDA believes that more should be done to prevent deception, or that [defendant’s] label misleads consumers, it can act.
Id. at *13-14 (citations omitted).
The Court finished by explaining that it is not the place of litigation to displace the expertise of the FDA:
[W]e must respect the FDA’s apparent decision not to impose the requirements urged by [plaintiff]. 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 [plaintiff’s] complaints is the [FDA].”
Id. at *16.
That is a nice way to finish. So enjoy your Memorial Day weekend and, if you want, your Pomegranate Blueberry juice. But know that there might be a lot of apple and grape in that drink. Maybe a beer or mojito is simpler.