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POLITICS: PennAve

Supreme Court justices raise concerns about Coke's marketing of 'pomegranate' drink

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Food and Drink,Supreme Court,PennAve,Sean Lengell,FDA,Law,Samuel Alito,Anthony Kennedy,Coca-Cola

The Supreme Court on Monday appeared willing to let juice maker POM Wonderful proceed with a false advertising lawsuit against Coca-Cola in a dispute over a pomegranate- and blueberry-flavored drink.

Several justices seemed to share POM Wonderful's concerns about the Coca-Cola product's label, which says “Pomegranate Blueberry Flavored Blend of 5 Juices," although the beverage is 99 percent grape and apple juice.

Justice Anthony Kennedy suggested that Coke, which sells the drink under its Minute Maid division, "cheat(s)" consumers into thinking the product's primary ingredients are pomegranate and blueberry juices.

If "Coca-cola stands behind this label as being fair to consumers, then I think you have a very difficult case to make," Kennedy told Kathleen Sullivan, an attorney representing Coke.

Sullivan countered that because the label says the drink is "flavored" with pomegranate and blueberry juices, Coke has complied with Food and Drug Administration regulations and isn't deceiving the public.

"We don't think that consumers are quite as unintelligent as POM must think they are," she said. "They know when something is a flavored blend of five juices."

Kennedy then quipped: "Don't make me feel bad because I thought this was pomegranate juice."

POM Wonderful, a Los Angeles company that helped popularize pomegranate juice, contends the label constitutes an unfair trade practice and sued Coke under trademark law.

"Coke well knew and intentionally designed a label that, in fact, grossly misleads consumers to the economic disadvantage of the company that, in large part, created the [pomegranate juice] market," Seth Waxman, an attorney representing POM Wonderful, told the court.

Coke counters that because the FDA hasn't taken action against the company for the label, it's in the clear. Lower courts sided with Coke, saying that the FDA — not the courts — is the appropriate place to file grievances over product labels.

The Obama administration, while not taking a formal position in the case, agrees with the lower courts' ruling.

But several justices on the high court suggested that POM Wonderful has the legal right to pursue its complaint in court, saying such action wouldn't conflict or impede the government's authority to regulate food labels.

Assistant to the Solicitor General Melissa Arbus Sherry suggested that because the drink tastes like pomegranate and blueberry juice, it would be wrong for the FDA to force Coke to market the drink as "apple-grape juice."

"A consumer might be very surprised when he came home and had a sip of that juice and realized it tasted like something very different than what he expected," she said.

But Justice Samuel Alito said consumers also are interested in the health benefits of pomegranates and have a right to know the drink contains only 0.3 percent juice from the fruit.

"You don't think there are a lot of people who buy pomegranate juice because they think it has health benefits?" he said. "They would be very surprised to find when they bring home this bottle that's got a big picture of a pomegranate on it and it says 'pomegranate' on it [and it's] less than one-­half of 1 percent pomegranate juice."

The food and beverage industry is watching the case closely, as a ruling in favor of POM Wonderful could subject food makers to more litigation.

Justice Stephen Breyer recused himself from the case. As is the high court's custom, he gave no reason.

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Sean Lengell

Congressional Correspondent
The Washington Examiner