New York Times
Skeptical Justice Scolds Coca-Cola on Juice Label
By ADAM LIPTAK APRIL 21, 2014
WASHINGTON — Not long after a lawyer for Coca-Cola started to defend its label
for a blended fruit juice at a Supreme Court argument on Monday, Justice Anthony
M. Kennedy subjected her to a series of unusually harsh questions.
If “Coca-Cola stands behind this label as being fair to consumers,” he said,
“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.”
Justice Kennedy’s question seemed in keeping with the court’s general skepticism
about Coca-Cola’s arguments that it could not be sued by a rival for false
advertising over the label.
The product in question, sold under Coca-Cola’s Minute Maid brand, is made
almost entirely from apple and grape juice. But it is called “Pomegranate
Blueberry,” followed in smaller type by the words “Flavored Blend of 5 Juices.”
The label shows a pomegranate and blueberries in front of an apple and grapes.
The juices are dyed dark purple. But the beverage contains no more than trace
amounts of the two featured juices. It is 0.3 percent pomegranate juice and 0.2
percent blueberry juice. Pom Wonderful, which sells pomegranate juice, is suing
for false advertising.
Kathleen M. Sullivan, a lawyer for Coca-Cola, said consumers were not misled.
“We don’t think that consumers are quite as unintelligent as Pom must think they
are,” she said. “They know when something is a flavored blend of five juices and
the nonpredominant juices are just a flavor.”
Justice Kennedy frowned. “Don’t make me feel bad,” he said, “because I thought
that this was pomegranate juice.”
The courtroom erupted in laughter, and Justice Antonin Scalia ribbed his
colleague. “He sometimes doesn’t read closely enough,” Justice Scalia said.
Seth P. Waxman, a lawyer for Pom Wonderful, said Justice Kennedy
was not alone. “The evidence shows that over a third of consumers who look at
this label believe that pomegranate and blueberry juice, in fact, are the
majority juices,” he said, though pomegranate juice amounted to a teaspoon in a
half gallon.
In its briefs, Coca-Cola said the survey Pom cited was unreliable.
Lower courts dismissed Pom’s suit, saying Coca-Cola had apparently complied with
the Food and Drug Administration labeling requirements, and Congress had in any
event entrusted the regulation of juice labels to the agency.
The legal question in the case was how to harmonize two federal laws, one
allowing private lawsuits over misleading advertising and the other authorizing
federal regulation of food labels. The question was a variation on one often
confronted by the justices, that of whether and when a federal law displaces, or
pre-empts, a state law.
Much of the argument concerned a 2009 ruling, Wyeth v. Levine, in which the
court said that state juries may award damages for harm from unsafe drugs even
though their manufacturers had satisfied federal regulators. Mr. Waxman, the
lawyer for Pom, said the Wyeth decision established that federal labeling
regulations set a floor, and not a ceiling, for consumer protection.
Ms. Sullivan, Coca-Cola’s lawyer, responded that the drug law did not expressly
pre-empt conflicting state laws, as the food labeling law did.
The Justice Department, weighing in as a friend of the court, took a middle
position in the case, Pom Wonderful v. Coca-Cola Co., No. 12-761. It said
federal regulations specifically allowed the name Coca-Cola gave its product,
immunizing it from Pom’s suit.
“By allowing manufacturers to choose to name their juice product based on the
juice that flavors the product as opposed to based on the juice that is
predominant by volume,” said Melissa Arbus Sherry, a lawyer for the federal
government, “consumers will come to understand that when a juice says
pomegranate- and blueberry-flavored, what it means is that the juice is present
as a flavor.”
Justice Samuel A. Alito Jr. asked whether that was realistic. “You don’t think
there are a lot of people who buy pomegranate juice because they think it has
health benefits, and they would be very surprised to find when they bring home
this bottle that’s got a big picture of a pomegranate on it, and it says
‘pomegranate’ on it, that it is — what is it — less than one half of 1 percent
pomegranate juice?” he asked.
Mr. Waxman said there must be limits to how far companies could go on their
labels.
“Coke’s argument, and for that matter the government’s argument, with respect to
the name itself, would apply,” he said, “if, unlike the eyedropper’s worth of
pomegranate juice that’s in the half-gallon bottle, there were two microns.”
Ms. Sullivan, the Coca-Cola lawyer, remained poised.
“We’re not talking here about safety,” she said. “We’re talking here about
labeling so that consumers have adequate information, at the same time as
manufacturers are not put to the burdens and inefficiencies of having constantly
shifting labeling standards imposed by juries, which ultimately will cost more
to the consumer.”
A version of this article appears in print on April 22, 2014, on page B3
of the New York edition with the headline: Skeptical Justice Scolds Coca-Cola on
Juice Label.