POM’s Lanham Act Claims Against Coca-Cola are Not Precluded by the FDC ActJune 12, 2014
By Jennifer M. Thomas –
In another confirmation of the Lanham Act’s reach following on the heels of the Lexmark decision, the U.S. Supreme Court ruled today that POM Wonderful LLC’s (“POM’s”) Lanham Act suit against Coca-Cola Co. (“Coke”) over juice product labeling is not precluded by the FDC Act (Docket No. 12-761). We previously posted here, here, and here about the case, and about the positions of various amici curiae – including the U.S. Solicitor General – on the proper interaction between the FDC Act and Lanham Act.
Stated briefly, the issue in this case was whether POM’s Lanham Act false and misleading advertising claims challenging the labeling of Coke’s Minute Maid Blueberry Pomegranate juice product were barred by the FDC Act and FDA regulations governing the labeling of juices. POM argued, among other things, that Coca-Cola’s prominent placement of the words “Pomegranate” and “Blueberry” on the product label, as well as a vignette depicting pomegranates and blueberries among the other fruits that contributed (much more substantially) to the product composition, was false and misleading.
Before getting into the details of this short and sweet Supreme Court opinion, it is worth noting a few limitations on its scope. Importantly, the Court in POM expressly denies any intended impact on issues of federal-state preemption under the FDC Act:
[T]his is not a pre-emption case. In pre-emption cases, the question is whether state law is pre-empted by a federal statute, or in some instances, a federal agency action. . . . This case, however, concerns the alleged preclusion of a cause of action under one federal statute by the provisions of another federal statute. So the state-federal balance does not frame the inquiry.
Slip. Op. at 7. Further, the opinion appears to be restricted to Lanham Act claims regarding products for which FDA does not approve or actually mandate the labeling: “FDA does not preapprove food and beverage labels under its regulations . . . [and] does not necessarily pursue enforcement measures regarding all objectionable labels.” Id. at 11. Time will tell if the principles expressed here are subsequently applied to FDA-regulated products more broadly.
The Court took a nuts-and-bolts approach to evaluating the intersection of the FDC and Lanham Acts, starting from the plain language of both Acts. It first determined that neither statute evidenced an express legislative intent to preclude operation of the Lanham Act with respect to the labeling of FDA-regulated products, a point which it considered particularly salient given the fact that the acts have “coexisted since . . . 1946 [and] . . . [i]f Congress had concluded, in light of experience, that Lanham Act suits could interfere with the FDCA, it might well have enacted a provision addressing the issue during these 70 years.” Slip. Op. at 9. Moreover, the Court found further evidence of legislative intent not to preclude Lanham Act claims in the fact that Congress did choose to preempt state law labeling claims but failed to even mention potentially competing federal laws in that preemption provision. Id. at 10. Finally, the Court described the Lanham Act and FDC Act essentially as good buddies — complementing each other with respect to both coverage and remedies, each compensating for the potential failings of the other, and together creating “synergies among multiple methods of regulation.” Id. at 12.
The Court was most emphatically not swayed by the Government’s view, expressed in an amicus brief, that Lanham Act claims should be precluded only “to the extent the FDCA or FDA regulations specifically require or authorize the challenged aspects of [the] label.” Id. at 15 (quoting Brief for United States as Amicus Curiae 11). In fact, the Court rejected the premise on which the Government’s position was based, namely that the FDC Act and implementing regulations “are at least in some circumstances a ceiling on the regulation of food and beverage labeling,” because it viewed that position as conflicting with legislative intent that the Lanham Act and FDC Act “complement each other with respect to food and beverage labeling.” Id. The Court appeared to take umbrage at the Government’s presumption that private parties could be precluded “from availing themselves of a well-established federal remedy because an agency enacted regulations that touch on similar subject matter but do not purport to displace that remedy or even implement the statute that is its source.” Id. at 17.