Last year (that is 2012), we namedPom Wonderful LLC, v. Coca-Cola Co., 679 F.3d 1170 (9th Cir. 2012), as number eight in our top ten decisions. Here's how we summarized the case:
Pom Wonderful LLC, v. Coca-Cola Co., 679 F.3d 1170 (9th Cir. 2012).This is another case that suffers a bit from being somewhat out of our target area.Pom Wonderful is a Lanham Act case brought by a very litigious (search the name sometime) purveyor of pomegranate juice against the defendant’s FDA-approved food labeling.For our purposes, Pom Wonderful is important because it applies one of our favorite principles, that the is no private right of action (direct or indirect) to enforce the FDCA, in order to establish the principle of FDA primary jurisdiction as an alternative to preemption.California notoriously leads the country in bogus “consumer protection” litigation over the labeling of many FDA-approved products, so to get an appellate decision telling plaintiffs to lay off labeling that's within the FDA’s regulatory sphere is a major win for the good guys.We savored Pom Wonderfulhere.
We mentioned in our most recent Top Ten discussion that Pom Wonderful remained "at risk" because of a pending certiorari petition.
Today, despite a contrary recommendation from the Solicitor General, the Supreme Court granted the petition. Here's a copy of the Supreme Court's order.The Supreme Court will thus decide the following question, in the context of a case about food:
Whether the court of appeals erred in holding that a private party cannot bring a Lanham Act claim challenging a product label regulated under the Food, rug, and Cosmetic Act.
This Lanham Act claim implicates the provision of the FDCA, section 337(a), forbidding private FDCA enfircement - not in the context of preemption (because the Lanham Act is a federal statute) but in the context of establishing boundaries between the two federal statutes. Both preemption in the context of food and preemption under Buckman will be impacted by the result, since both turn significantly on the same question.