This week, the Supreme Court heard arguments in a case brought by POM Wonderful gainst Coca-Cola, alleging fraudulent and deceptive advertising of Coca-Cola’s Pomegranate-Blueberry juice. The legal question centered on whether a private party can bring a lawsuit for misleading advertising if a label is compliant with regulations established by a federal agency, here the US Food and Drug Administration (FDA).
Throughout the arguments, words like “fair” and “deceptive” were reiterated. Justice Kennedy asked “If Coca-Cola stands behind this label as being fair to consumers… I think it’s relevant for us to ask whether people are cheated in buying this product.”
Responding to an amicus brief presented by the Department of Justice distinguishing between juice that flavors a product as opposed to juice that is predominant by volume, Justice Alito posed a similar question. “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 … less than one half of 1 percent pomegranate juice?”
To those even vaguely familiar with nutrition and the world of big food advertising practices, the questions posed by the justices in this case are old news. Consumers are “deceived” all the time. Food packaging is very cleverly labeled to allow the consumer to infer beliefs about a product, irrespective of the truth. In the case at hand, Coca-Cola’s label makes no health claims specific to either the pomegranate or the blueberries in its juice. Coca-Cola calls the product a juice blend, and paints the consumer a drawn to scale still-life of the five fruits inside its drink. Perhaps the confusion over the healthful properties of this drink stem from the prominent front of package claims regarding Omega-3s and brain health. But nowhere does Coca-Cola directly link the health claim to either pomegranates or blueberries.
So what then are the justices actually taking issue with? Counsel for Coca-Cola responded to this line of questioning by explaining that “[w]e’re not talking here about safety. We’re talking here about labeling so that consumers have adequate information.” Herein lies the question.
What is adequate information?
Would Justice Alito feel differently about the quantity of pomegranate juice present in Coca-Cola’s product if he didn’t believe that pomegranate’s had positive health benefits? (The truth is, there are no scientifically proven benefits of drinking pomegranate juice. And, note the irony in this case’s plaintiff. POM Wonderful itself faced legal actions for deceptive and misleading nutrition claims about the health properties of pomegranate juice).
In this case, the consumer does not have adequate information to decide whether it matters from a health perspective how much pomegranate or blueberries are in the juice. The question of FDA’s role in regulating the adequacy of the information available to consumers on nutrition labels and their role in guiding healthy eating choices has been the subject of debate for years. Just this past March, FDA proposed the first change to nutrition labeling in 20 years. The proposed changes could help consumers better understand the difference between a fruit juice and a fruit flavored drink. Hopefully, new nutrition labeling guidelines will address the adequacy of information issue to equip consumers with the knowledge needed to make better eating choices, based on facts, and not incorrect inferences stemming from clever and misleading marketing tactics.
The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.