U.S. Supreme Court Takes Up Lanham Act-FDC Act POM Case

By JP Ellison –

We previously reported that Pom Wonderful had sought Supreme Court review of the 9th Circuit’s decision that POM’s labeling-based claims against Coke’s Minute Maid products could not proceed under the Lanham Act because such labeling was the province of the FDA and the FDC Act.  In that earlier post we also discussed the brief filed by the United States Solicitor General arguing that the 9th Circuit’s decision was wrong, but that the Court should not grant cert. in the case.  Last Friday the Supreme Court, against the recommendation of the Solicitor General, granted cert. and will hear the case.  Two Justices, Alito and Breyer, did not take part in the vote to grant cert., suggesting that they also will not participate in the case at the merits stage.  We’ll closely follow this case (Docket No. 12-761), which could provide important guidance on not only FDC Act-related Lanham Act claims for food products, but for drugs, devices, and cosmetics as well.