Sun Tzu wrote: “All warfare is based on deception.” In addition to the art of war, this sentiment reaches far into the world of consumer advertising, as well. With recent mega-decisions coming from the United States Supreme Court, most notably the Hobby Lobby decision, we here at Abnormal Use overlooked a recent deceptive advertising decision of the Supremes. As reported by Sam Hananel of the Associated Press and The Huffington Post, the Big Nine (err, Big Eight in this instance as Justice Breyer warmed the bench this go-round) ruled in June that juice maker Pom Wonderful can proceed with its lawsuit against the Coca-Cola Co. and its version of pomegranate juice. See POM Wonderful LLC v. The Coca Cola Company, — U.S. — (June 14, 2014). The lawsuit alleged that the label on Coke’s “Pomegranate Blueberry Flavored Blend of 5 Juices” beverage of its Minute Maid line was somehow misleading to consumers. Why? Well, Pom alleges that 99 percent of the pomegranate blueberry concoction is actually apple and grape juice.
Justice Kennedy, author of the 8-0 decision, focused on the Coke juice’s actual pomegranate and blueberry content, .3 percent and .2 percent, respectively, despite the drink’s potentially misleading label, which showed the words “Pomegranate Blueberry” in much larger typeface than the rest of the drink’s official name and included a large pomegranate graphic set among other small fruits. Previously, the lower courts had sided with Coke, finding that the drink’s label conformed to the FDA’s rules and the law. In a refusal to elevate form over substance, Justice Kennedy conceded that the juice may comply with FDA rules but rejected the notion that technical compliance with the FDA absolves a company from potential liability where a label may mislead consumers for different reasons.
In this instance, Justice Kennedy noted that Pom was not precluded from suing Coke under the Lanham Act for unfair competition based on false or misleading claims.
Representatives of Coke vowed to continue to fight the lawsuit against Pom now that the Supreme Court has permitted it to go forward.
But what are the larger ramifications of the ruling? It appears the decision presents the distinct possibility that a company may have increased exposure to private litigation for deceptive labeling, despite its compliance with FDA rules and regulations.