The National  Memo Logo

Smart. Sharp. Funny. Fearless.

Monday, December 09, 2019 {{ new Date().getDay() }}

By Michael Doyle, McClatchy Washington Bureau

WASHINGTON — Dual marketing disputes have ripened for the California-based makers of Pom Wonderful pomegranate juice, with Supreme Court justices sounding sympathetic Monday to some company claims.

In the first of two key court cases, justices on Monday seemed to accept Pom Wonderful’s argument that Coca-Cola misleadingly labeled as “Pomegranate Blueberry” a product that had only an infinitesimal amount of either juice.

The company wants to sue Coca-Cola under the federal Lanham Act, which permits civil action against anyone who “misrepresents the nature, characteristics or qualities” of goods being sold.

“It’s relevant for us to ask if people are cheated in buying this product,” Justice Anthony Kennedy said, adding to general laughter: “I thought that this was pomegranate juice.”

Justice Ruth Bader Ginsburg similarly noted that “the consumer is able to buy the Coke product much cheaper, and the Pom product costs more (while) the consumer thinks they are both the same.” Justice Sonia Sotomayor asked Coca-Cola’s attorney why the company was able to use the juice label “in a misleading way.”

“Coke’s label is, as a matter of law, not misleading,” countered Coca-Cola’s attorney, former Stanford Law School Dean Kathleen Sullivan.

Nonetheless, the hard questions put to Sullivan and the notably respectful attention given to Pom Wonderful’s attorney, former Clinton administration Solicitor General Seth Waxman, suggested a likely victory for the juice company.

“Coke well knew, and intentionally designed a label that grossly misleads consumers, to the economic disadvantage of the company that, in large part, created the market,” Waxman said.

In a legal twist, the validity of Pom Wonderful’s own marketing claims anchors a second pending case.

On May 2, in arguments before the U.S. Court of Appeals for the District of Columbia Circuit, the company will defend health claims that have been disputed by the Federal Trade Commission.

Citing three dozen advertisements and promotional materials, the trade commission found that Pom Wonderful advertised deceptively and lacked sufficient support for claims that pomegranate products could treat, prevent or reduce the risks of heart disease, prostate cancer and erectile dysfunction.

“Pom’s account of the medical evidence routinely distorted the scientific record and omitted the negative results of Pom’s own studies,” the FTC said in a legal brief, adding that the company “had not substantiated any of its disease claims with positive results from even one well-controlled clinical trial.”

Pom Wonderful counters that its marketing claims deserve consideration as free speech.

“It cannot seriously be maintained that the First Amendment offers no protection to commercial speech that accurately quotes a newspaper article and truthfully recites the results of a scientific study,” the company’s attorneys argue in a legal brief.

Pom Wonderful is owned by Stewart and Lynda Resnick, reported by Forbes magazine to be billionaires. The couple’s agricultural ventures, through their Roll Global holding company, include major citrus, almond and pistachio orchards in addition to pomegranate operations in California’s San Joaquin Valley.

About 32,000 acres of pomegranates are planted in California. Kern County, the heart of the Resnicks’ farming empire, leads all other counties in pomegranate production.

In September 2007, Coca-Cola introduced its “Pomegranate Blueberry” product. It contains about 99.4 percent apple and grape juices, tinted with 0.3 percent pomegranate juice, 0.2 percent blueberry juice and 0.1 percent raspberry juice.

Pom Wonderful sued. A lower appellate court rejected the suit, concluding that the federal Food and Drug Administration had effectively pre-empted labeling oversight.

Photo: OZinOH via Flickr


Start your day with National Memo Newsletter

Know first.

The opinions that matter. Delivered to your inbox every morning

Madison Cawthorn

Image via Politico

The Republican party seems to be having trouble trying to be the Christian Taliban and hating on LGBT people when they’ve got Rep. Madison Cawthorn in their ranks. His presence is making it so much harder for them to suppress their inner self-loathing--homosexuality and moral hypocrisy.

We all know politicians secretly love illicit drugs as much as taking bribes or paying off strippers they knocked up, so you have to give Cawthorn some credit for being honest. However, any creditability as a human he might have goes out the window when you consider his hatred and policies toward the LGBT community while, hypocritically enough, he engages in homosexual acts himself.

Keep reading... Show less

Jeff Danziger lives in New York City. He is represented by CWS Syndicate and the Washington Post Writers Group. He is the recipient of the Herblock Prize and the Thomas Nast (Landau) Prize. He served in the US Army in Vietnam and was awarded the Bronze Star and the Air Medal. He has published eleven books of cartoons, a novel and a memoir. Visit him at DanzigerCartoons.

{{ }}