Friday, June 13, 2014

Will the Supreme Court Do What the FDA Won't? Legitimize Food Labels.

POM Wonderful, LLC the maker of POM pomegranate juice has been trying to sue Coca Cola for false advertising because its Minute Maid drink called Pomegranate Blueberry Flavored Blend of 5 juices (really that is the name) only contains a trace amount of pomegranate and blueberry juice, in fact less than 1%.   POM Wonderful sells juice blends and 100% juices; it sells 100% blueberry POM and 100% pomegranate POM, and a pomegranate blueberry blend.  The label for the blend clearly notes that it is 85% pomegranate and 15% blueberry.  Thus, the company wants to sue because they believe that Coca Cola is -by way of their label - drawing customers away from the POM blend. There is nothing on the Pomegranate Blueberry Flavored Blend of 5 juices label that indicates how much of the blend is pomegranate and how much is blueberry, but clearly most of it is something else.  I think POM has a fair point.

You can see the court brief here.  The concern about the law suit is whether its the FDA that is supposed to do something - is Coca Cola breaking any label laws under their jurisdiction (no) - because if so, then the private company cannot, or if it isn't the FDA's responsibility then can a private company sue another under the Lanham Act even if this seems like an FDA related labeling issue.  The decision by the US Supreme Court, which is being talked about a lot today, was that POM Wonderful can go ahead and sue Coca Cola.  

I think that is good.

I understand also that POM has an FTC labeling issue to contend with - a 'false' health claim - and that same issue is likely to hit Coca Cola whose juice drink label purports "brain nourishment".

Some public health advocates, consumer activists and business attorneys consider the courts decision to be a potential game changer.  Me, too.  I have bemoaned the, capricious at best, actions of the FDA on food labeling for years.  Two examples are 1) The FDA is not moving forward with restaurant menu labeling which was passed 4 years ago and 2) they are not putting any teeth into definitions for food labels, such as All Natural.  That is why I see this as a game changer.  If companies or activist organizations like CSPI can sue over label issues - false, misleading, opaque - then companies in their cross hairs will CHANGE.  I imagine that big businesses have the resources and motivations necessary to go after their competitors, and I expect that consumers want to be told the truth.  There is a huge difference between 85% pomegranate juice and 0.3% pomegranate juice.

Now, lest you think I have had a change of heart about juice, I assure you I have not.  Many of the juices sold by Coca Cola/Minute Maid are only 25% juice and contain calorically dense high fructose corn syrup; but even 100% juice is high in calories and light on fiber/substance.  Though I am 100% in favor of FRUIT and 0% in favor of fruit juices, I am 110% in favor of truth in labeling.

No comments: