World Advertising News

Quinn Emanuel Urquhard & Sullivan's Kathleen Sullivan

The Coca-Cola Co.'s claim that it cannot be sued by a competitor for false advertising of its Pomegranate Blueberry juice blend did not appear to win many supporters on the U.S. Supreme Court on Monday.

That the company's advocate, Kathleen Sullivan of Quinn Emanuel Urquhart & Sullivan, faced an uphill battle was painfully hammered home when Justice Anthony Kennedy bluntly asked her:

"Is it part of Coke's narrow position that national uniformity consists in labels that cheat the consumers like this one did?"

POM Wonderful LLC sued Coca-Cola in 2008 under the federal Lanham Act, which allows a business allegedly injured by a competitor's false or misleading advertising of its products to bring a civil lawsuit. Pom Wonderful claims that the use of the words "Pomegranate Blueberry" on Coke's label misleads consumers into believing that the product consists primarily of pomegranate and blueberry juices. In fact, the juice consists mainly of apple and grape juice (99.4 percent) blended with 0.3 percent pomegranate juice and 0.2 percent blueberry juice.

In POM Wonderful v. Coca-Cola Cos., Sullivan was defending her client's victory in the U.S. Court of Appeals for the Ninth Circuit. That lower appellate court had held that Coke's label complied with regulations under the Food, Drug and Cosmetic Act (FDCA), as amended by the Nutrition Labeling and Education Act, and that agency authorization preempted the Lanham Act claims.

In Tuesday's arguments, Sullivan contended that if express provisions in the nutrition-labeling law pre-empted state law claims of the kind that POM Wonderful was making under the Lanham Act, it followed that Congress, in the interest of national uniformity of labeling, intended the law's regulations to trump Lanham Act claims.

Sullivan gently suggested to Kennedy that he had "perhaps succumbed" to attempts by her opponent, Seth Waxman of Wilmer Cutler Pickering Hale and Dorr, to make a jury argument when there had yet to be a trial or a record on whether Coke's label was misleading.

But Kennedy, undeterred, said it was important to know how the FDCA and the Lanham Act work. "And if the statute works in the way you say it does and that Coca-Cola stands behind this label as being fair to consumers, then I think you have a very difficult case to make. I think it's relevant for us to ask whether people are cheated in buying this product, because Coca-Cola's position is to say even if they are, there's nothing we can do about it."

Chief Justice John Roberts Jr. told Sullivan that he did not see a conflict between the Lanham Act and the FDCA. "I don't know why it's impossible to have a label that fully complies with the FDA regulations and also happens to be misleading on the entirely different question of commercial competition, consumer confusion that has nothing to do with health," he said.

Sullivan countered that a conflict does exist. "Just to be clear, what Congress wanted was national uniformity so that a manufacturer could print one label and sell in the 50 states and not have its juice legal when you leave on the flight in California and illegal when you land in D.C. "