ROLE MODEL: Mattel Inc. is relentless in defending brands including Barbie, and Pom Wonderful likewise considers no rival too small. Or too powerful, either—the company is now engaged in court fights against both The Coca-Cola Co. and the FTC. (POM photo: Diego M. Radzinschi / NLJ Barbie photo: iStockphoto / kaisphoto)
Whether taking on corporate giants, government regulators or tiny start-ups, Pom Wonderful LLC is a scrappy street fighter in court.
The privately held pomegranate juice maker has made litigation an integral part of its business strategy, filing more than 20 federal suits since 2005 to protect its trademarks and attack its rivals’ marketing, a review of court records show.
To date, the suits have yielded mixed results at best, but like Mattel Inc.’s legendary defense of its Barbie trademark, the barrage sends an unequivocal message: Move into our space and we attack.
This week, the company faced off against The Coca-Cola Co. in the U.S. Supreme Court, and is set for a closely watched showdown with the Federal Trade Commission (FTC) next week before the U.S. Court of Appeals for the D.C. Circuit.
“It’s the Super Bowl of advertising fights,” said John Fleder, a partner at Hyman, Phelps & McNamara who specializes in regulatory litigation and is not involved in the case. “The stakes are high on both sides.”
Fearless at challenging beverage industry giants, Pom has sued companies including Ocean Spray Cranberries Inc., Welch Foods Inc. and Tropicana Products Inc. As with its case against Coke, Pom alleges that their labels mislead consumers by wrongly implying certain juice blends are predominantly made from pomegranates.
Nor is any rival too small: Pom has brought trademark suits against brands such as Pomberry Tobacco, Pomenade — a tapenade spread of olives and pomegranate — and Pompis, a lime-flavored energy drink whose name means “butt” in Spanish.
The case before the D.C. Circuit represents a turnabout for Pom — the company is being forced to defend its own marketing in a suit by the FTC that accuses Pom of making deceptive claims about the health benefits of pomegranate juice.
Owned by Los Angeles billionaires Stewart and Lynda Resnick, Pom was founded in 2002 and is part of Roll Global LLC, which also owns Fiji Water and generates more than $3 billion in annual revenue. A spokeswoman did not respond to a request for comment.
Court papers make it clear that the company’s go-to law firm is in-house: the 40-lawyer Roll Law Group. As Roll Global put it on its website, “We don’t believe our uncommon corporate ethos can be outsourced. That’s why we handle all facets of our operations in-house.”
Still, the company over the years has retained at least 12 law firms as outside counsel on Pom matters, including Wilmer Cutler Pickering Hale and Dorr — partner Seth Waxman argued for Pom before the Supreme Court — and Covington & Burling, where partner John Graubert represents the company in the FTC case, along with Thomas Goldstein of Goldstein & Russell.
Pom has long been litigious. The company filed its first federal lawsuit in the Central District of California in 2005, suing Geni Inc., which makes a pomegranate raw ingredient extract called Pomella, for trademark infringement. U.S. District Judge Florence Cooper denied Pom’s request for a preliminary injunction. Pomella “is made from pomegranates, and the first syllable of that word is ‘pom,’ ” she wrote.
The case settled, and Pom asked that the judge’s decision be sealed — a request the court flatly rejected. However, that desire for secrecy would resurface when the FTC case began.
In reporting on a fee dispute between Pom and its former counsel, Hogan Lovells, The National Law Journal in 2010 learned in court papers that the FTC was investigating the company. Pom successfully sued to block the NLJ from publishing the identity of the agency — and ignited a mini media frenzy as other publications joined an emergency appeal. Soon after, Pom asked the judge to rescind the order, claiming it never meant to start a First Amendment fight.
Pom then sued the FTC pre-emptively, challenging what company lawyers called its “new standard” for the evaluation of deceptive practices and false advertising. Less than two weeks later, the FTC sued Pom, alleging in an administrative complaint that it made false and unsubstantiated claims that its juice prevents heart disease, prostate cancer and erectile disfunction. “When a company touts scientific research in its advertising, the research must squarely support the claims made,” then-FTC Consumer Protection Bureau head David Vladeck said in a news release.
In 2013, the commissioners ordered Pom not to run any ads touting the health benefits of its juice unless backed by at least two randomized and controlled human clinical trials — an expensive and time-consuming proposition. Pom appealed, arguing that the FTC wrongly weighed the risks of consuming pomegranate juice with the advantages of giving people information about its potential health benefits.
“The FTC’s new and unbalanced standard makes it exceedingly difficult for any food advertisers to speak about how scientific studies may support their products’ health benefits without risking liability,” Goldstein wrote in Pom’s final reply brief. The FTC “bans important speech not out of any compelling public health interest, but because it thinks the public overpays for juice — juice that is undisputedly safe and healthy.”
The FTC countered that Pom’s ads “routinely distorted the scientific record and omitted the negative results of Pom’s own studies,” as FTC General Counsel Jonathan Nuechterlein wrote. He called the commission’s decision to require clinical studies “unremarkable,” noting that medical claims have long received extra FTC scrutiny because they cover “products whose efficacy consumers cannot easily ascertain before or even after purchasing them.” And he argued that advertisers “remain generally free to inform consumers about a promising body of emerging science.”
Oral arguments are scheduled for May 2, and lawyers who advise clients on advertising issues are watching closely.
“There’s a small possibility we’ll get guidance about how aggressive the FTC can be, particularly with respect to the remedy — i.e., did they go too far,” said Lisa Simpson, a litigation partner at Orrick, Herrington & Sutcliffe. “But most likely, I think we’re going to see an affirmation of the FTC’s position and more aggressive policing of medical and health claims, which I think will devolve into more private litigation as well.”
Contact Jenna Greene at firstname.lastname@example.org.