Pomegranates, snake oil, and deceptive food advertising

Some of our readers may know about a case pending in the Supreme Court called POM Wonderful v. Coca-Cola. In that case, POM Wonderful, which markets drinks containing pomegranate juice, sued Coke under the Lanham Act, claiming that Coke has deceptively marketed products as containing lots of healthy pomegranate juice when in fact they contain almost no pomegranate juice.

POM's Supreme Court brief starts this way:

Respondent Coca-Cola has designed its “Pomegranate Blueberry” juice product to mislead consumers. Over 99% of the product is apple and grape juice. The amounts of pomegranate and blueberry juice it contains—0.3% and 0.2% respectively—are so trivial that no consumer could perceive them. Yet every aspect of the product’s appearance is tailored to convince consumers that it contains significant amounts of pomegranate and blueberry juice. The words “Pomegranate” and “Blueberry” appear in large font on the front of the bottle, each occupying a single line of the label. These words dwarf the FDA-required disclaimer, “Flavored Blend of 5 Juices,” which is set in significantly smaller font on a separate line below the product name. The bottle prominently displays images of a pomegranate and oversized blueberries, which appear, respectively, in front of images of an apple and grapes. The product is colored deep purple to resemble pomegranate and blueberry juice.

To oversimplify a bit, the Court of Appeals for Ninth Circuit said that POM had no Lanham Act claim because Coke's labels are regulated by the FDA. The degree of FDA regulation is light, and, as you might imagine, how much the FDA regulates may be relevant to the question whether the Lanham Act claim is ousted by FDA regulation. For a nice overview of the arguments, see this article by law professor Ronald Mann.

Observers have suggested that POM's arguments are a tad ironic given POM's extravagant labeled-based claims about the (supposed) health benefits of drinking its pomegranate-based juice. Satirist John Oliver had done a brilliant piece skewering POM's ads and other health claims by food sellers. (Did you know that cocoa puffs are health food?)

Oliver's piece is guaranteed to have you laughing — and, perhaps, questioning our system of food labeling regulation. To watch, click here and then go to around 15:25 on the video.

Update: Some additional sparring between POM Wonderful and John Oliver