Last week, the Ninth Circuit issued a broad FDA preemption ruling that elbows aside federal deceptive-labeling claims in the latest slugfest between Pom Wonderful and Coca-Cola that has been going on for almost five years. The decision is important because it finds preemption against a backdrop in which the FDA had not acted, and finds a competitor’s Lanham Act claims preempted simply because the FDA “can act.” This was a competitor-versus-competitor Lanham Act case, but the breadth of the holding should spill over into consumer cases brought under state false advertising laws. That Pom Wonderful emerged from the Ninth Circuit—a circuit notoriously unfriendly to FDA preemption arguments—makes this ruling all the more remarkable.

FACTS

Pom Wonderful (“Pom”) produces, markets, and sells bottled pomegranate juice and pomegranate juice blends. In 2007, Coca-Cola, under its Minute Maid brand, announced a new product called, “Pomegranate Blueberry Flavored Blend of 5 Juices.” Pom sued, alleging that by using the product’s name (“Pomegranate”) and its labeling, Coca-Cola misled consumers into thinking that the product consisted primarily of pomegranate and blueberry juices when, in fact, it was consisted of over 99% apple and grape juices. Pom brought claims under the false-advertising provision of the federal Lanham Act, as well as state law claims under California’s Unfair Competition Law (“UCL”) and False Advertising Law (“FAL”).