POM Wonderful pursues false advertising claim against Coca-Cola. (subscription to Law360 required)

  • As previously covered on this blog, POM Wonderful sued Coca-Cola in 2008 under the Lanham Act for allegedly misleading consumers with its labels for Minute Maid pomegranate blueberry juice.  According to POM, Coke’s labels misrepresented the amount of actual pomegranate juice present in a blend comprised primarily of apple and grape juice.  Although Coke attempted to defend the lawsuit by asserting the preclusive effect of a company’s compliance with FDA’s labeling requirements, the Supreme Court ruled that FDA compliance does not necessarily provide a safe harbor to protect a company against challenges by competitors or consumers.
  • POM and Coke now are back in California federal court, with POM accusing its competitor of false advertising in connection with its now-discontinued Minute Maid product.  As a result of Coke’s allegedly misleading labeling, an expert for POM believes the company suffered lost profit damages of up to $77.5 million.  Among other strategies, Coke is attempting to assert an “unclean hands” defense, focusing the jury’s attention on a 2012 administrative judge’s ruling that POM made unsubstantiated health benefit claims about pomegranate juice.
  • The current round of POM v. Coke represents the anticipated aftermath of the Supreme Court’s decision, which paved the way for this lawsuit to proceed.  The food industry is paying close attention to the challenge, as the proceedings and outcome may help illustrate the viability of the “unclean hands” defense and, more generally, of false advertising claims and damages in a market with multiple competitors.