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Client Alert.
May 21, 2012
Ninth Circuit:
FDA Regulations Broadly Preempt Food Labeling Claims
By William L. Stern, Linda L. Lane, and Jae Hong Lee
Last week, the Ninth Circuit issued a br oad FDA preemption ruling that elb ows aside federal deceptive-label ing claims in
the latest slugfest between Pom W onderful and Coca-Cola that has been going o n for almost five years. The decisi on is
important because it finds preem ption against a backdrop in which the FDA h ad not acted, and finds a com petitor’s
Lanham Act claims preempted simpl y because the FDA “can act.” This was a competitor-versus-competitor Lanham Act
case, but the breadth of the holding s hould spill over into consumer cases brought under state false advert ising laws. That
Pom Wonderful emerged from the Ninth C ircuit—a circuit notoriously unf riendly to FDA preemption argum ents—makes
this ruling all the more remarkable.
FACTS
Pom Wonderful (“Pom”) produces, m arkets, and sells bottled pomegranate ju ice 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 us ing the product’s name (“Pomegranate” ) and its labeling, Coca-Cola m isled
consumers into thinking that the produc t consisted primarily of pomegranate and blueberry juices when, in fact, it was
consisted of over 99% apple and gra pe juices. Pom brought claims under the false-advertising provision of th e federal
Lanham Act, as well as state law claim s under California’s Unfair Com petition Law (“UCL”) and False Advertis ing Law
(“FAL”).
THE NINTH CIRCUIT’S DEFERENCE TO T HE FDA
The Central District granted summ ary judgment to Coca-Cola. On appeal, th e Ninth Circuit affirmed the dism issal of the
federal claim and remanded the state law claims back to the district cour t for reconsideration of standin g issues.
Lanham Act. The Ninth Circuit noted the potential conf lict between the Lanham Act and the FDC A, stating that the
Lanham Act “broadly prohibits false adv ertising,” while the FDCA “com prehensively regulates food and bev erage
labeling.” However, the Court ruled th at the FDCA trumps and can limit La nham Act claims. The Ninth Circuit
acknowledged “Congress’s decision t o entrust to the FDA the task of inter preting and enforcing the FDCA.” Citing its own
precedent in PhotoMedex 1, the Ninth Circuit gave considerab le deference to the FDA in stating tha t where “the FDA has
not concluded that particular conduct violates the FDCA … a Lanham Act c laim may not be pursued if the clai m would
require litigating whether that cond uct violates the FDCA.” The Court stated that private parties should not be able to use
litigation to undermine the FDA’s jud gment.
