By: Sam Jacobson
Background on Trademarks
A trademark is a type of intellectual property utilized by individuals, companies, or legal entities. It is defined by the United States Patent and Trademark Office as a word, phrase, design or a combination that “identifies your goods or services”, “distinguishes them from the goods or services of others”, and “indicates the source of your goods or services” [1]. Unlike more temporary types of intellectual property such as patents and copyrights, a trademark will persist in perpetuity until the owner ceases usage of the trademark. If the trademark is registered through federal registration, then federal protection will protect the trademark nationwide from being registered by others without permission [1]. Additionally, federal protection helps prevent others from using similar goods or services; ultimately, the court is tasked with determining the degree of similarity, and thus if trademark infringement occurred, should a trademark suit occur. In short, a trademark can:
Identify the source of one’s goods or services.
Provide legal protection for one’s brand.
Guard against counterfeiting and fraud.
An example of a trademark is “Coca-Cola ® for soft drinks” [1], which is closely related to the case at hand that will be discussed. My article will first explore how governmental action has impacted the ways in which food and beverage products can be branded under the law. This will be studied by analyzing the relationship between two Congressional acts that established the standard analyzed in POM Wonderful LLC v. Coca-Cola Co. (2014). In POM, the plaintiff, POM Wonderful, a pomegranate beverage company, sued the defendant, Coca-Cola, for its purported “pomegranate-blueberry” beverage that, in reality, was 99.4% apple and grape juices [3]. POM Wonderful alleged that through the naming, labeling, and marketing of the pomegranate-blueberry beverage, Coca-Cola ultimately misled consumers as to the actual content of the beverage, and this deception caused economic damage to POM Wonderful.
This article will discuss the events of the POM case before ultimately analyzing the decision of the United States Supreme Court (hereinafter “the Court”) in POM. After analyzing the Court’s decision, this article will determine whether or not this case affirmed an existing standard or created a new one. The article concludes with an analysis of the reasoning used by the Court to reach their conclusion in POM, before briefly discussing the aftermath of the case at hand. I will argue that, in the case of POM Wonderful LLC v. Coca-Cola Co., the reversal of the original holding was incorrect, and that the Supreme Court’s holding was indeed appropriate.
Food, Drug and Cosmetics Act (1938)
The United States Congress passed the Food, Drug and Cosmetics Act in 1938 in order to regulate the safety of food, drugs, and cosmetics [2]. Through this act, the Food and Drug Administration has issued regulations in regards to food and beverage labeling. In relation to the case at hand, the following regulations should be considered [2]:
“If the product is a diluted multiple-juice beverage or blend of single-strength juices and names, other than in the ingredient statement, more than one juice, then the names of those juices, except in the ingredient statement, must be in descending order of predominance by volume unless the name specifically shows that the juice with the represented flavor is used as a flavor (e.g., raspberry-flavored apple and pear juice drink).”
“If a diluted multiple-juice beverage or blend of single-strength juices contains a juice that is named or implied on the label or labeling other than in the ingredient statement (represented juice), and also contains a juice other than the named or implied juice (non-represented juice), then the common or usual name for the product shall indicate that the represented juice is not the only juice present (e.g., “Apple blend; apple juice in a blend of two other fruit juices.”)”
“In a diluted multiple-juice beverage or blend of single-strength juices where one or more, but not all, of the juices are named on the label other than in the ingredient statement, and where the named juice is not the predominant juice, the common or usual name for the product shall:
Indicate that the named juice is present as a flavor or flavoring (e.g., “Raspcranberry”; raspberry and cranberry flavored juice drink); or
Include the amount of the named juice, declared in a 5- percent range (e.g., Raspcranberry; raspberry and cranberry juice beverage, 10- to 15-percent cranberry juice and 3- to 8-percent raspberry juice).”
Rule (c) is especially relevant to POM, as it requires that if a juice blend does not name all the juices that it contains and mentions only juices that are not predominant in the blend, then it must “indicate that the named juice is present as a flavor or flavoring” or “include the amount of the named juice, declared in a 5- percent range” [2]. This regulation will be immensely salient to the analysis of the case at hand.
Lanham Act (1946)
The Lanham Act was enacted by Congress in 1946 to govern the use of trademarks. Specifically, the act is based on the usage of marks, which represent the general group of trademarks, service marks, collective marks, or certification marks [4]. As per the act, the term “trademark” includes any word, name, symbol, or device, or any combination thereof–
“used by a person, or
which a person has a bona fide intention (earnest intent) to use in commerce
to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.”
For relevance to the case at hand, this act is used to “regulate commerce within the control of Congress by making actionable the deceptive and misleading use of marks in such commerce” [4].
POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102 (2014)
Facts of the Case and Issue(s) at Hand
POM Wonderful, LLC, is a beverage company based in California that sells various types of juice, including a pomegranate-blueberry juice blend [5]. In 2007, the Coca-Cola Company, another beverage company, announced its own pomegranate blueberry juice product through its Minute Maid Division [3]. The product was labeled as “pomegranate blueberry” in capital letters, with the words “blend of five juices” in a significantly smaller font below the latter. It turned out that Coca-Cola’s juice product contained only 0.3% pomegranate juice and 0.2% blueberry juice, compared to 99% of the product consisting of apple and grape juices. As a result, POM Wonderful sued Coca-Cola, arguing that Coca-Cola’s pomegranate-blueberry juice product misled consumers due to the beverage’s actual contents, which, as a result, economically damaged POM Wonderful’s pomegranate-blueberry juice blend. In their suit, POM Wonderful claimed that Coca-Cola violated provisions of the Lanham Act [4]. More specifically, POM Wonderful sued under §43 of the Lanham Act. 60Stat. 441, as amended, 15 U. S. C. §1125, which is a provision that allows one competitor to sue another if it alleges unfair competition arising from false or misleading product descriptions. [3] The lawsuit by POM Wonderful challenged the name, labeling, marketing, and advertising of Coca-Cola’s product due to its arguably misleading nature.
Holding(s)
The district court held that POM Wonderful’s claims with regards to the name and label of Coca-Cola’s juice product were barred by a separate law: the Food, Drug and Cosmetics Act (FDCA) [5]. The FDCA Act, under the jurisdiction of the Food & Drug Administration (FDA), regulates the labels on food and beverage products, including juices. In a court of law, the FDA has exclusive authority to file claims for violations of the FDCA. Here, the district court feared that a decision under the Lanham Act would undercut the FDA’s authority to regulate juice labels. Ultimately, the district court granted summary judgment in favor of Coca-Cola on the challenges to its naming and labeling and gave POM Wonderful the opportunity to have a trial in regards to challenges of the marketing and advertising of Coca-Cola’s product. However, POM Wonderful conceded that they would not be able to win the trial without the ability to challenge Coca-Cola’s naming and labeling of its product, and they appealed the lower courts’ decision.
The United States Court of Appeals for the Ninth Circuit affirmed the lower courts’ decision with regards to bar the claims of POM Wonderful’s challenges surrounding the naming and labeling of Coca-Cola’s juice [5]. Additionally, it vacated the district courts’ ruling in favor of Coca-Cola and allowed POM Wonderful to proceed on the remaining claims. The question for the Supreme Court was if the US Court of Appeals correctly held that FDA regulations barred POM Wonderful’s claim for false advertising under the Lanham Court.
In a unanimous 8-0 decision written by Justice Kennedy, the Supreme Court held that neither the Lanham Act nor the FDCA forbids or limits private Lanham Act claims challenging labels that are regulated by the FDCA [3]. Furthermore, if it was determined that the FDCA precludes Lanham Act claims challenging food and beverage labels, it would ignore distinct functional aspects of the FDCA and the Lanham Act, which would lead to a result that would bifurcate from Congressional intent. The Supreme Court allowed the case to proceed on the remaining claims.
Analysis
The first point of analysis here is whether Coca-Cola’s juice product was deceptive or misleading in a manner that it violated the regulations under the Lanham Act. With relevance specifically for the Lanham Act, I argue Coca-Cola’s juice blend was dually deceptive and misleading.. By claiming to be a pomegranate-blueberry beverage product to appeal to a certain population of consumers, yet having pomegranate-blueberry content equivalent to 0.6% of the beverage, Coca-Cola’s product did truthfully depict the other 99.4% content of the beverage. Additionally, with a market cap of $277 billion, Coca-Cola is a huge company, so it is a clear and reasonable threat to the success of POM Wonderful’s business, its customers, and its sales.
The second point of analysis that must be weighed is whether Coca-Cola’s juice product violated the FDCA. In my opinion, given the list of FDA regulations, there is no apparent violation. While how the product was promoted was arguably questionable, the actual labeling and naming of the product followed the FDA regulations. However, it should be noted that there should be revisions to the FDCA such that a company should not be able to name a product with such a small percentage of the food/beverage content making up the name. There should be some minimum percentage established (e.g. content must make up 20+% of the product to be included in the naming) in naming a food/beverage product so a consumer is not potentially misled. In the interest of protecting consumers and restoring trust in food and beverage products, many consumers first glance at the label of a product rather than going the extra step to analyze the back label, which is why the front should be under further scrutiny.
With this case in particular, it did make sense that the Supreme Court argued for separate considerations of the acts rather than joint consideration, as prioritizing one over the over minimizes the effectiveness/goals of both. Additionally, these are both acts developed and passed in the legislative branch of the US government, and minimizing the power/influence of these acts minimizes Congressional (legislative) power, which reduces the impact of peoples’ voices. Therefore, the decision of the Supreme Court to allow the procession of the case to a trial while holding that the FDCA should not preclude Lanham Act claims in a court of law makes sense.
Aftermath
In aftermath of the Supreme Court ruling, the case went back to the California federal district court, where it was established that Coca-Cola Co.’s Minute Maid “Enhanced Pomegranate Blueberry Flavored 100% Juice Blend” was 99.4% apple and grape juices and only 0.3% pomegranate juice, 0.2% blueberry juice, and 0.1% raspberry juice [6]. The case then went to a jury on March 18, 2016, with the plaintiff claiming losses of approximately $77 million ($10 million in losses each year from 2007 to 2014) as a result of the defendant’s misleading pomegranate-blueberry beverage product. Three days later, the jury returned with a verdict in favor of Coca-Cola, rejecting POM Wonderful’s claims that the labeling of Minute Maid’s pomegranate-blueberry juice blend (which complied with FDA labeling requirements) was either misleading or unfair competition. The jury believed that the labeling did not mislead a substantial portion of consumers.
Conclusion
Ultimately, this case surrounded the considerations of both the Food, Drug and Cosmetics Act (FDCA) and the Lanham Act, and if one act (FDCA) supersedes the other in claims of trademark violations under the Lanham Act. In my opinion, the Supreme Court correctly held that one act does not supersede the other. If it were to be treated in such a manner in a court of law, then it would minimize the influence and goals of both acts, which would not be in favor of Congress and ultimately the people. However, I do believe that there should be some revision applied to the FDCA such that a company cannot legally name a product that makes up such a small percentage of the food/beverage itself, because that arguably can mislead consumers. While this would take years to come into actual effect, this suggestion should be at least considered in order to achieve the original intent of the FDCA.
Endnotes
[1] United States Patent and Trademark Office “Trademark, patent, or copyright.”
[2] 21 US Code § 102.33 (2016).
[3] POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102 (2014).
[4] 15 U.S. Code § 1127 (1946).
[5] Pom Wonderful, LLC v. The Coca-Cola Company, Oyez, https://www.oyez.org/cases/2013/12-761 (last visited Apr 26, 2023).
[6] “Jury Sides With Coca-Cola In False-Advertising Suit by POM.” Wall Street Journal, (March 21, 2016), https://www.wsj.com/articles/jury-sides-with-coca-cola-in-false-advertising-suit-by-pom-1458605039.