Thursday, June 12, 2014
A great post by my colleague Diana Winters, cross-posted from Bill of Health
While today’s unanimous (sans Justice Breyer, who recused himself) decision by the Supreme Court in POM Wonderful LLC v. Coca-Cola Co. was certainly not a surprise, especially after the clear tenor of the oral argument, the case may have some implications for FDA law going forward. In this case, POM Wonderful sued Coca-Cola under the Lanham Act, alleging that the label on Coca-Cola’s pomegranate blueberry juice was false and misleading, and that this deception caused it to lose sales. Coca-Cola argued that because its label complied with the Food, Drug, and Cosmetic Act, POM’s Lanham Act claim should be precluded. The district court and the Ninth Circuit agreed.
The Supreme Court reversed, holding that “the FDCA and the Lanham Act complement each other in the federal regulation of misleading labels.” Explaining that because there were two federal statutes in play here, this was not a pre-emption case, Justice Kennedy used traditional rules of statutory interpretation to make short work of Coca-Cola’s arguments that POM’s claim should be precluded. As I said before, nothing surprising here.
There are two points in the decision, however, worth noting. The first is minor, but rubbed me the wrong way. Kennedy here distinguishes between the functions of the Lanham Act and the FDCA by characterizing the former as targeting deceptive advertising and the latter as protecting the health and safety of the public. This characterization is not in error, but downplays, or erases, the FDCA’s origins in and history of consumer protection. Indeed, a 1917 Report by the Bureau of Chemistry explained that the Food and Drugs Act of 1906 was “among the first of that group of laws which today would be classed as laws for the prevention of unfair competition.” The public’s health was protected through the prohibition of misbranding and adulteration, which were primarily aimed at eliminating economic fraud in food and drugs.
It is a mistake to attempt to discern Congress’s intent in regulating the labeling of food without acknowledging the FDCA’s foundation in consumer protection. Such recognition would not have changed the outcome of the POM Wonderful case, but may have complicated the Court’s analysis of the interaction between these statutes.
Also worth noting is the Court’s embrace of “synergies among multiple methods of regulation,” and acknowledgment that a measure of uniformity may be sacrificed to achieve other goals, like ensuring fair competition. As I wrote about recently in The Magical Thinking of Food Labeling: The NLEA as a Failed Statute, this posture is beneficial in the context of food labeling. And although the Court distinguished between allowing state regulation of the specific food-labeling provisions regulated and preempted by the FDCA from these Lanham Act claims, the Court also noted the extreme precision and complexity of the FDCA’s express preemption provision. In conjunction with the understanding that uniformity may be a secondary goal, this has implications for the swell of state law food-labeling litigation currently underway. Courts hearing these claims (most in the Northern District of California) may be more likely to let these state law claims go forward after this decision.