After a Los Angeles judge tossed the bulk of POM Wonderful’s federal and state unfair competition and false advertising case against Coca-Cola in May 2010, POM turned to heavy-hitter Seth Waxman of Wilmer Cutler Pickering Hale & Dorr to handle its appeal. On Thursday Waxman managed to revive part of the case, persuading a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit to reinstate the state claims against Coca-Cola over its “Pomegranate Blueberry” drink. But the panel upheld U.S. District Judge James Otero’s ruling that POM’s federal Lanham Act claim is barred by the Food, Drug and Cosmetic Act, which gives the Food and Drug Administration discretion over regulating product labels. (Read the court’s 14-page opinion here.) Coca-Cola was represented by Steven Zalesin of Patterson Belknap Webb & Tyler. The National Law Journal’s Amanda Bronstad has a detailed report on Thursday’s ruling.
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