By: James Kachmar
The Ninth Circuit recently dealt with the issue of whether the Federal Drug and Cosmetic Act (“FDCA”) prevents a plaintiff from bringing a Lanham Act claim alleging that the name and labeling of a juice beverage is deceptive and misleading. The plaintiff Pom Wonderful LLC (“Pom”) produces and sells pomegranate juice and pomegranate juice blends. In 2007, Coca-Cola Company (“Coca-Cola”) announced that it would start selling a new product called “Pomegranate Blueberry” and “Pomegranate Blueberry Flavored Blend of 5 Juices.” Despite its name, only 0.5% of the juice was actually pomegranate/blueberry juice, while the rest of it was apple, grape and raspberry. Believing that it was losing sales to Coca-Cola’s product, Pom sued Coca-Cola alleging that it violated the false advertising provision of the Lanham Act for making a false or misleading description or representation about its goods.
Coca-Cola moved to dismiss the complaint arguing that plaintiff’s claims were barred because in construing the product’s name and labeling, Pom’s claim “could improperly require the court to interpret and to apply FDA regulations on juice beverage labeling.” After allowing Pom to file an amended complaint and conduct discovery, the court granted summary judgment to Coca-Cola and held that Pom’s Lanham Act challenge to the product’s name and labeling was barred by the FDCA’s implementing regulations. Pom appealed this ruling.
The Ninth Circuit began by recognizing that the Lanham Act broadly prohibits false advertising and that suits could be brought by any person “who believes that he or she is or is likely to be damaged by the use of that false description and representation.” On the other hand, the FDCA comprehensively regulates food and beverage labeling and prevents “false or misleading” labeling. The Ninth Circuit noted that although a private plaintiff may sue under a false advertising provision of the Lanham Act, mislabeling under the FDCA could only be enforced by the FDA or the Department of Justice. It further observed that the FDA had, for its part, “promulgated regulations that address how a manufacturer may name and label its juice beverages.”
The Ninth Circuit continued by recognizing that when faced with two broad federal statutes that have a potential conflict, courts should try to give as much effect to both statutes as possible. However, the Ninth Circuit recognized that other courts had previously held that a plaintiff could not sue under the Lanham Act to enforce the FDCA or its regulations because allowing such suits could undermine Congresses’ policy of limiting enforcement of the FDCA to the federal government. Even if the FDA has not concluded that a product violates the FDCA, courts have held that a Lanham Act claim could not be pursued if it would require litigating whether the alleged conduct violates the FDCA.
The Ninth Circuit recognized that in at least one case involving a dermatological laser, it held that the “Lanham Act may not be used as a vehicle to usurp, preempt or undermine FDA authority.”
The Ninth Circuit concluded that “the FDCA and its regulations barred pursuit of both the name and labeling aspects of Pom’s Lanham Act claim.” The Ninth Circuit ruled that the FDA’s regulations allowed Coca-Cola to use the name of a flavoring juice even if that juice was not predominant by volume. Thus, for Pom to prevail on its misnaming claim, it would require the Court to find contrary to FDA regulations.
The Ninth Circuit reasoned that a similar conclusion was warranted as to the mislabeling component of Pom’s claim. Pom’s claim was essentially premised on the size of the lettering used in describing Coca-Cola’s product. The Ninth Circuit noted that “in extensively regulating the labeling of foods and beverages the FDCA and its implementing regulations have identified the words and statements that must and may be included in labeling and have specified how prominently and conspicuously those words and statements must appear.” Thus, both Congress and the FDA had dictated what the contents of a product’s label must bear so as not to be deceptive. The court noted that if the FDA though Coca-Cola’s labeling was deceptive, it could act on its own. However, the court concluded that Coca-Cola’s label complied with FDA regulations and that Pom’s claim for mislabeling was likewise barred by the FDCA.
This case reminds litigants to carefully analyze whether they truly have a private cause of action under a federal statute when there is a similar statute that comprehensively regulates the same area.