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Yesterday the Supreme Court heard oral argument on the Pom Wonderful case.  One thing we’ve learned is that Justice Kennedy doesn’t seem to like Coke’s label for its juice:

JUSTICE KENNEDY:  Is it part of Coke’s narrow position that national uniformity consists of labels that cheat the consumers like this one did?

MS. SULLIVAN:  Justice Kennedy, you have perhaps succumbed to Mr. Waxman’s attempts to argue his jury argument here.  We’re on a motion to dismiss.  There is no record.  We’ve put in a brief.

JUSTICE KENNEDY:  I think it’s important for us to know how the statutes 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.  Do you still have this label?

Transcript, at 28:1-17 (emphasis added).  Oof.  But not to worry (just yet).  There are seven other justices considering this case (Justice Breyer has recused himself).  It’s far from over.

In fact, courts continue to follow the Ninth Circuit’s Pom Wonderful decision (which we wrote about here). Recently, a magistrate in the District of Colorado recommended the denial of a defendant’s request to amend its pleadings to add a Lanham Act counterclaim because it involved an area regulated by the FDA.  Oralabs, Inc. v. The Kind Group LLC, 2014 U.S. Dist. LEXIS 49704 (D. Col. Mar. 10, 2014).

Oralabs is another Lanham Act business dispute, this one involving lip balm.  The defendant claimed that the plaintiff represented that its competing lip balm weighed 7 grams when its “useable weight” was in fact less than 6 grams.  Id. at *9.  While that ordinarily may be fodder for a Lanham Act claim, the FDA regulates cosmetics.  It’s the “C” in FDCA.  It requires cosmetic labels to include the product’s “net weight” and “accurately reveal the quantity of cosmetic in the package exclusive of wrappers and other material packed therewith.”  21 C.F.R. §701.13.  And so the court found that the proposed Lanham Act claim encroached on an area regulated by the FDA and was an improper attempt to privately enforce FDA regulations, something that the FDCA prohibits:

[B]because no private right of action exists under the FDCA, a plaintiff may not use the Lanham Act as an alternative vehicle by which to seek redress for an FDCA violation.  When the Lanham Act and the FDCA overlap, any conduct that amounts to a violation of the FDCA is within the Food and Drug Administration’s jurisdiction.

Id. at *8-9- (citing, amongst other cases, POM Wonderful LLC v. Coca-Cola Co., 679 F.3d 1170, 1175-1176 (9th Cir. 2012), cert. granted, 134 S. Ct. 895 (2014)).  Since the defendant’s claim “require[d] an interpretation of the FDCA’s requisite level of accuracy [under its regulations], the claim [wa]s preempted.” Id. at *12.

We’re not sure what Justice Kennedy thinks about the lip balm label.  Regardless, in the meantime, courts are still following Pom Wonderful.  But in the future what Justice Kennedy is thinking may matter a lot.  We’ll just have to wait to see.