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February 14, 2013 - False Advertising

Preemption Still Has Teeth: The FDCA Keeps California False Advertising Claims at Bay in Pom Wonderful Suit

As we have noted in prior posts (FDCA, POM, preemption), the Food, Drug, and Cosmetic Act (“FDCA”) can provide a powerful tool to food companies that are hit with claims about their labeling.  Yesterday, Judge Otero in the Central District of California confirmed that preemption under the FDCA has teeth, finding that the FDCA preempts California’s Unfair Competition Law (“UCL”) and False Advertising Law (“FAL”), Cal. Bus. & Prof. Code §§ 17200, et seq., 17500, et seq. in the POM Wonderful lawsuit against Coca-Cola.  Pom Wonderful LLC v. The Coca-Cola Company, et al., No. 2:08-cv-06237-SJO-FMO, Docket Entry 417 (C.D. Cal. Feb. 13, 2013).

As a quick recap, in 2007, plaintiff Pom Wonderful sued Coca-Cola for alleged false advertising of Coca-Cola’s “Pomegranate Blueberry Blend” juice.  POM Wonderful claimed that Coca-Cola misled consumers with its label and name because the product purportedly consisted of over 99% apple and grape juices.  POM alleged violation of the Lanham Act, as well as California’s UCL and FAL statutes.  On summary judgment, the court dismissed plaintiff’s Lanham Act claims relating to the name and labeling of the product, holding that they were preempted by the FDCA.  The state law claims were dismissed for lack of standing.

On appeal, the Ninth Circuit affirmed the lower court’s determination that the FDCA preempts Pom’s Lanham Act claims.  The Ninth Circuit did not address whether plaintiff’s UCL and FAL claims are also preempted, or whether California’s safe-harbor doctrine insulates the defendant from liability on such claims.  On remand, Coca-Cola moved for summary judgment on these remaining issues.

On February 13, 2013, Judge Otero found for Coca-Cola, finally disposing of POM Wonderful’s suit.  The Court acknowledged Pom’s Catch-22:

“Either [the state law claims] impose obligations identical to those in the FDCA, in which case Defendant has already satisfied [its] obligations; or they impose obligations additional to those in the FDCA, in which case they are preempted[.]”

Finding that POM was indeed attempting to impose additional requirements under state law, the Court dismissed such claims as preempted.  And for good reason.  Citing the Seventh Circuit in Turek v. Gen. Mills, Inc., 662 F.3d 423, 427 (7th Cir. 2011), the court explained the “broad policy goals” for “holding that the FDCA preempts application of non-identical state law labeling requirements”:

“[I]t is easy to see why Congress would not want to allow states to impose disclosure requirements of their own on packaged food products, most of which are sold nationwide.  Manufacturers might have to print 50 different labels, driving consumers who buy food products in more than one state crazy.”

But the court did not stop at preemption, finding that California’s safe-harbor doctrine—which will not let liability lie where the federal or state legislature has permitted such conduct—also shielded Coca-Cola from liability.