Does compliance with FDA’s food labeling regulations shield a company from false advertising claims challenging those labels? That was the key question in a much-anticipated oral argument before the U.S. Supreme Court last month involving Pom Wonderful’s claims against competitor beverage company Coca-Cola. [Pom Wonderful LLC v. Coca-Cola Co., 134 S. Ct. 895 (2014).]  The food industry is watching closely as the Supreme Court grapples with who should be tasked with protecting consumers from misleading food labels.    
 
Coca-Cola’s ‘Pomegranate Blueberry Flavored Blend of 5 Juices’
At issue is the labeling of Coca-Cola’s “Pomegranate Blueberry Flavored Blend of 5 Juices,” which is 99% apple and grape juice. Pom, a seller of pomegranate juice, sued Coca-Cola in 2007, alleging that the juice’s name and other labeling features were misleading under the federal Lanham Act—a statute that allows suit based on the false or misleading description of goods (15 U.S.C. § 1125(a))—because apple and grape juice are the primary ingredients. The company also brought state claims, which are not part of the appeal. Coca-Cola asserted that its label complies with the federal Food, Drug, and Cosmetic Act (FDCA) and, as such, Pom’s claims are barred.
 
Lower Court Rulings: FDCA Precludes Pom’s Lanham Act Claim
The district court agreed with Coca-Cola, finding that Pom’s Lanham Act claim was barred by the FDCA’s food and beverage labeling regulations. In particular, FDA regulations explicitly permit a manufacturer to name a beverage using the name of a flavoring juice that is not predominant by volume, as Coca-Cola had apparently done [Pom Wonderful LLC v. Coca-Cola Co., No. CV 08-06237 SJO (JTLx), 2009 U.S. Dist. LEXIS 65233, at *5-15 (C.D. Cal. Feb. 10, 2009)].
 
The Ninth Circuit Court of Appeals reached the same conclusion on the Lanham Act claim after analyzing the potential conflict between the two broad federal statutes. [Pom Wonderful LLC v. Coca-Cola Co., 679 F.3d 1170, 1175 (9th Cir. 2012).] While the Lanham Act “broadly prohibits false advertising,” the FDCA “comprehensively regulates food and beverage labeling.” Id. The Ninth Circuit ultimately found that the FDCA precluded the claims—because Congress entrusted to FDA the task of interpreting and enforcing the FDCA, the FDCA could operate to limit claims under the Lanham Act. Id. at 1175-76. Pom petitioned the Supreme Court for certiorari, and the Court agreed to hear the case. 
 
Pom Tells Supreme Court FDA Provides a Floor, Not a Ceiling
At oral argument before the Supreme Court, Pom argued that FDA is not the sole arbiter of consumer deception. FDA regulations merely provide a floor, not a ceiling. Because no explicit language in either statute limits the application of the Lanham Act in this case, Pom argued that the Court should only bar the Lanham Act claim if there is an irreconcilable conflict. Such a conflict might exist if FDA regulations specially required a company to use a certain label. But here FDA regulations simply set the baseline, and mere compliance with regulations does not determine whether the labeling is misleading. According to Pom, Coca-Cola could have complied with both statutes.    
 
Coca-Cola Responds that FDA’s Regulations Are the Final Say on Deception
Coca-Cola, in turn, focused on the express preemption provisions that bar state claims. It argued that if Pom’s Lanham Act claim had been brought under state law, it would have been expressly preempted under the Nutrition Labeling and Education Act of 1990 (NLEA). The NLEA has an express preemption provision that bars state claims to the extent they seek to impose requirements that are “not identical” to federal law. If the same claims would be barred when styled under state law, it is only logical that Congress intended to preempt the claims under federal law too (or believed it had already done so). Some of the Justices appeared to question this approach; if Congress intended to bar state and federal claims under the express preemption provision, why didn’t it say so? Since Lanham Act claims would apply to all 50 states, why should the same concerns about national uniformity of labeling apply?
 
Coca-Cola offered an alternative rationale as well: where two federal statutes overlap, the specific trumps the general. Here, the FDCA specifically addressed what types of juice labeling would be misleading. FDA’s determinations should preclude the more general Lanham Act. Chief Justice Roberts still wondered, however, why a label that fully complies with FDA regulations could not also be misleading.
 
United States’ Argument: FDCA Precludes Lanham Act Claims Only If the Labels Comply
The U.S. government filed a brief as amicus curiae, and argued for a middle ground approach.  A Lanham Act claim should be barred, it argued, if the challenged labeling complies with FDA regulations. As such, the district court should initially determine whether the labels are compliant. If the label is specifically authorized, then the Lanham Act claim is precluded. But if FDA has simply failed to forbid it, then the Lanham Act claim is not barred. 
 
Justice Kennedy wondered whether this approach would be hard to enforce. How would parties and courts determine whether FDA made a deliberate decision to exclude a requirement or simply failed to consider it? And to what extent does FDA consider consumer confusion in drafting its regulations? 
 
The Court’s Underlying Concern: Who Protects Consumers from Deception?
A consistent theme running through the Court’s questioning is: who should be the guardian of protection from consumer deception? Justices Ginsburg, Roberts and Kennedy acknowledged that FDA handles issues of health and safety, but were skeptical that its regulations thoroughly consider consumer confusion. Both the government and Coca-Cola repeatedly assured the Court that FDA does focus on consumer deception. Indeed, the “misbranding” provisions of the NLEA specifically aim to prevent deceptive labeling, and the juice labeling regulation at issue was passed after extensive rule-making proceedings over the course of 25 years. 
 
Nonetheless, some of the Justices questioned the notion that FDA should be the body in charge of food labeling deception. Justice Ginsburg, for example, asked whether the Lanham Act and FDCA might be serving different purposes—the former addressing deceptive sales practices, and the latter dealing with nutritional information and health claims. Justice Kagan asked why the Lanham Act could not be a complement to FDA’s regulations, and Justice Kennedy pointed to FDA’s limited resources as a reason why the Lanham Act may be better suited to address consumer deception. Questioning why the two statutes are necessarily in conflict, Chief Justice Roberts noted that consumer confusion has nothing to do with “health.” A bright line distinction between the Acts seemed to be appealing to some of the Justices.
 
Finding that the two statutes serve different purposes would allow the Court to avoid preclusion and give effect to both Acts. The statutes could remain on equal footing, and the Court would avoid having to fashion a workable preclusion rule. But perhaps looming even larger in the courtroom was the issue of the merits. Some of the Justices may have been resistant to deferring to FDA based on the Justices’ perceptions of the actual label. Justice Kennedy said that it is relevant for the Court to consider whether people are “cheated” in buying the product. While Coca-Cola maintained that its label is not misleading, Justice Kennedy replied, “Don’t make me feel bad because I thought that this was pomegranate juice.”
 
Conclusion
Pom, Coca-Cola, and the U.S. presented different arguments on when and how the FDCA could trump a Lanham Act claim. But the primary concern addressed at oral argument appeared to be, “Who?” Does FDA adequately consider consumer deception or should private parties be allowed to build off of the baseline regulations? Whatever it decides, the Court’s ruling will surely shape food labeling litigation to come. 
 
Claudia Vetesi and Lisa Wongchenko are litigation associates in Morrison & Foerster’s Consumer Litigation and Class Action Practice Group. They are frequent contributors to Morrison & Foerster’s Private Surgeon General Class Action Defender blog and can be reached at cvetesi@mofo.com and lwongchenko@mofo.com.