In POM Wonderful vs. Coca-Cola, Supreme Court Considers Food Labeling, False Advertising, and FDA Authority

MinuteMaid.comMinuteMaid.comThe Supreme Court is hearing oral arguments today in a case reporters can't resist describing as "juicy." No, there's nothing terribly salacious or scandalous about this case. But it revolves around claims that Coca-Cola makes on Minute Maid brand pomegranate blueberry juice.

Coca-Cola describes the beverage in question as a "Pomegranate Blueberry Blend of 5 Juices," which is not exactly untrue. The drink contains about 0.5 percent pomegranate and blueberry juices, along with apple, grape, and raspberry juice.

But competitor Pom Wonderful took issue with Coca-Cola's statements. In POM Wonderful LLC v. The Coca Cola Company, the juice maker charges the beverage behemoth with false advertising, a violation of the federal Lanham Act

The U.S. Court of Appeals for the Ninth Circuit ruled against Pom Wonderful, holding that a private party can't bring a claim challenging a product label, as these are regulated by the Food and Drug Administration (FDA). Under the Food, Drug, and Cosmetic Act, the FDA was granted regulatory authority over food and drink naming and labeling. 

But it's unclear whether the agency has exclusive authority in this realm. The Supreme Court is now tasked with deciding whether that's the case or whether private parties can sue for false advertising on food and drink labels. From the Wall Street Journal:

Coca-Cola’s position is that Congress intentionally gave exclusive regulatory authority to the FDA so that manufacturers could rely upon a single, nationally uniform, legal standard about food names and labels. Pom’s position is that the FDA rules provide a legal floor for food and drink manufacturers, but other legal rules, such as the federal false advertising laws, can require manufacturers to do more than the FDA’s minimum.

Thus, Pom argues that Coca-Cola is deceiving consumers under the cover of inadequate FDA regulations, and Pom will protect consumers if it can sue under federal false advertising law; while Coca-Cola argues that lawsuits like Pom’s threatens to create anarchy for food and drink manufacturers by creating multitudinous and possibly inconsistent labeling obligations.

The lawsuit only applies to names and claims on product labels, not other forms of advertising. Competitors and consumers can and do bring lawsuits for false advertising in food and drink ads. 

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  • Brett L||

    I think you should start tagging these for the anti-libertarian questions that get answered. For example, "Without the FDA who would ever sue a large food or drink manufacturer for false or misleading labeling?"

    Oh, their competitors who seek to differentiate themselves by exactly that claim.

  • Elizabeth Nolan Brown||

    Yeah, this seems to me like an infinitely more preferable (and effective) system than giving the FDA full authority over both designing food & drink label requirements & enforcing them.

  • ||

    And it's not like the FDA is doing such a good job of stopping misleading labeling and advertising as it is. Like all the brands of "whole wheat" bread that's made from white flour that's been dyed brown.

  • Brett L||

    Not to Godwin the thread, but at some point soon, the FDA will have been more complicit in more deaths than Pol Pot. But at least they keep Big Pharma paying the vig, right?

  • ||

    The FDA is the font of all that is good about the world. How else would we prevent food manufacturers from deliberately poisoning their customers? Who else would inform us that we must eat 10-12 servings of bread and pasta daily to maintain optimum health? Without the FDA, the living would envy the dead. Haven't you ever read The Jungle?

  • Brett L||

    Yeah. But somehow I don't think setting a maximum, non-zero amount of acceptable rat-shit in my meat is the pinnacle of governance.

  • Swiss Servator, Käse, Käse!||

    The Jungle

    "Aimed at America's heart, and hit it in the stomach instead"

  • Elizabeth Nolan Brown||

    Oh, this is one of my grocery pet peeves. So many "whole wheat breads" are nothing but white flour + corn syrup + artificial coloring & preservatives.

  • Brett L||

    Its a good thing the FDA is here to protect you.

  • ||

    You have to look for the ones with labels that say "100% whole grain". But most of those breads are way too hippy-assed, with fucking pumpkin seeds and sprouted kamut and chia and stupid things like that in them. It's really hard to find just plain brown bread. It's a good thing that I mostly hate bread and hardly ever eat it.

  • trshmnster the terrible||

    I find it a little disturbing that the bread from the store lasts so long. My homemade (from scratch) multigrain bread lasts 1.5-2 weeks in the breadbox before becoming stale and moldy. Various breads and buns from the store last from 2 months to 6 months in the breadbox, depending on the company and the product.

    I'm sure the FDA would toss me in prison if I dared sell my homemade loaves in the marketplace. Can't have those disease vector bread loaves out there with no preservatives or HFCS in them!

  • Brett L||

    Someone once got ergot poisoning on homemade bread sold on the side of the road, so we must break you now, comrade.

  • Sigivald||

    I suspect your bread gets moldy faster because it's more damp, more than anything else.

    But ... rotting is good?

    Preservatives are bad?

    (Why?

    I've never heard a good argument other than "it's not natural", which is ... not a good argument.

    Hell, half the people I see opposed to preservatives also push antioxidants as magic goodness; not realizing, of course, that many/most preservatives are ... simply antioxidants. That's all BHT is, a very strong antioxidant.)

  • Sigivald||

    FDA doesn't think that's legal.

    "Whole wheat bread", per 21 CFR 136.180 must be entirely whole wheat flour, which is defined in 21 USC 137.200 as being exactly what one would expect.

    "Plain" flour is defined as being made from cleaned wheat, and is prohibited in products labeled "whole wheat bread".

    A spot check of local and national brands isn't finding me any that match your description... which does not surprise me, in this case.

    (Maybe you're thinking of "cracked wheat" and the like, which is not so defined, and is often unbleached 'cleaned' flour otherwise identical to white flour?)

  • Sigivald||

    Show me one of those brands.

    Because I can't find them. I spot checked, and every one I checked listed "whole wheat flour" as the first - and only flour - ingredient, exactly as the FDA demands.

    I think the FDA should be abolished on principle, but I'm not seeing this alleged massive noncompliance.

  • ||

    Chilled Pom makes for a nice zesty enema.

  • GILMORE||

    The issue here is that POM considers the pomegranate juice segment 'theirs' (they more or less pioneered it) and they love the fact they can command huge premiums for so long being the only significant product on the market.

    http://www.amazon.com/Pomegran.....B002YQ4SYW

    Now that the big boys are getting involved, and Pomegranante 'juice' is going the way of every other 'juice product' - turning into a 'juice cocktail' where the base is always high-sugar concentrate like apple or grape, and the ''branded" juice name used as a flavoring for that base - POM wants to try and send the message its competitors aren't "real". The lawsuit is as much about marketing via legislation as much as it is "legislation about marketing".

    The juice definitions are so (ugh) watered down that there is nearly zero chance that there's going to be any finding of 'false claims'. Im not sure POM is "100% pomegranate juice" themselves (AFAIK that would be almost undrinkable), so i'm not convinced they are aiming for some kind of 'purity standard' redefinition.

    In case anyone cares "who's the bigger scumbag?" in this fight? Consider that the POM people are the same jerks who convinced people that *shipping water from Fiji* was somehow an environmentally sensible thing to do. There are no good guys.

  • Elizabeth Nolan Brown||

    Yeah, POM has had its own fair share of deceptive advertising issues - http://www.blisstree.com/2013/.....ate-juice/

  • John Thacker||

    Im not sure POM is "100% pomegranate juice" themselves (AFAIK that would be almost undrinkable)

    Can't be any crazier than 100% cranberry juice. That stuff is not potable uncut.

  • Robert||

    Cranberry juice would be undrinkable, but not pomegranate, providing it's just expressed from the seeds. You couldn't stand to eat a mouthful of cranberries, but you could pomegranate seeds easily.

  • LynchPin1477||

    The label says 100% pomegranate juice from concentrate.

  • GILMORE||

    Not to split hairs or belabor the topic...

    ... the 'from concentrate' term is a bypass element that allows a substantial amount of processing to occur while still being able to label juice "100%" when it has in fact been reconstituted, concentrated and diluted. Its not entirely misleading - no different than the OJ you buy 'from concentrate' vs. 'fresh'; except for the fact that the 100% fresh OJ is usually *all* oj = whereas there is (AFAIK) no 'fresh, 100% PJ' in existence, for good reason.

    On other words, the pomagranate juice part is processed to remove a lot of the otherwise nasty and acidic parts, possibly has some sweetening elements highlighted/added, then concetrated/diluted to produce your shelf-stable, drinkable product.

    My point is that regardless of the label, neither the POM or Coke/MM products are "100%" anything, nor do they really pretend to be. Its a pissing match between terminology, all of which is partly misleading depending on how blithely ignorant you are about the food industry.

    [*Disclosure = former food/beverage industry analyst, mostly beverages ~12yrs]

  • Plàya Manhattan.||

    Didn't realize we had an expert here. Why is Mountain Dew so delicious?

  • Robert||

    Dude, it's Mountain Dew, not Mountain Doo!

  • Sigivald||

    Internet/USDA tells me there's more sugar in a cup of pomegranate juice than a cup of apple juice, actually - but less than in a glass of grape juice.

    (It may taste less sweet because of bitter compounds in the juice, but it's got more sugar than apple juice.)

  • GILMORE||

    The sugar content by itself is meaningless.

    The real issue is the cost of the product and the pungency of its flavor profile relative to other common juice inputs.

    Most of the juice products you buy off the shelf (particularly single-serve things) are going to be apple/grape juice, plus whatever additional juice is needed to color/flavor/label the product. Its cheaper, its sweeter and more flavor-neutral, and more shelf stable. You just add whatever flavor concetrates you want to that base and whammo, you get "Blueberry pomegranate kiwi'' or whatever the fuck you think you just dropped $2.50 on. Its still mostly apple/grape juice.

    The uselessness of the point about 'more sugar' in PJ is multiplied by the fact that its also unholy expensive due to limited and variable supply, as well as the fact that it requires substantial processing to make it "not taste like battery acid".

  • GILMORE||

    note: pear juice i think is also popular with certain things.

    Its i think the most 'premium' of the flavor bases in the juice business. Or, used in the higher priced products at least.

  • Robert||

    For the same reason, apple is an adtulterant one would sneak into pear products.

    I still have trouble believing that company tried to get away with imitation apple juice for babies. What could be cheaper? I tried to get the recipe to make a substitute for this lady—
    http://econ.columbia.edu/corinne-low
    —when she was a 3 YO apple juice fiend but got dysuria from drinking too much of the real thing. (She's about to be a lecturer at Wharton!) They still kept that as a trade secret, when you'd think the publicity would've made them happy to give it up. Wouldn't give me any of the stuff, either—probably shipped it to the 3rd world to polish monocles with.

  • prolefeed||

    while Coca-Cola argues that lawsuits like Pom’s threatens to create anarchy for food and drink manufacturers

    Because nothing quite says "anarchy" like a lawsuit in a government courtroom with the intent of causing the government to use force to take away the freedom to do business in a certain manner.

    Do these reporters even * try * to look up the meaning of words?

  • LynchPin1477||

    Full Definition of ANARCHY

    1
    a : absence of government
    b : a state of lawlessness or political disorder due to the absence of governmental authority
    c : a utopian society of individuals who enjoy complete freedom without government
    2
    a : absence or denial of any authority or established order
    b : absence of order

    They are using the 2b definition. It's probably the one people are most familiar with.

  • R C Dean||

    I seriously doubt that the reporters were slyly implying that "a lawsuit in a government courtroom with the intent of causing the government to use force to take away the freedom to do business in a certain manner" is "the absence of order."

    I think they're just not too bright, myself.

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