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.
The decision flows out of just one case in POM’s litigation campaign against competitors that market rival pomegranate drinks, but it’s the first appellate decision to tackle the viability of the company’s claims. POM had originally argued that Coca-Cola’s pomegranate drink, which was marketed under its Minute-Maid label, violated the Lanham Act, as well as state laws, because it contained mostly apple and grape juice. The company has pursued similar cases against Tropicana, Ocean Spray, Welch’s and Purely Juice, with mixedresults. POM is also embroiled in litigation with the federal government: The company sued the FTC over its advertising rules, while the FTC filed an administrative complaint accusing the company of overstating the health benefits of its juice.