In POM Wonderful LLC v. Coca-Cola Co., 134 S. Ct. 2228 (2014), the Supreme Court unanimously held that  competitors may bring false advertising claims under the Lanham Act challenging food and beverage labels  regulated under the Federal Food, Drug, and Cosmetic Act (FDCA). The Supreme Court’s decision in  POM was greatly anticipated by some observers in heavily regulated  industries (e.g., pharmaceuticals) because of the potential for a statement on preemption or the primary  jurisdiction doctrine. Certain district courts have relied on the Ninth Circuit’s POM reasoning to find state law consumer fraud and false advertising claims preempted under the primary jurisdiction doctrine. See, e.g., Astiana v. Hain Celestial Grp. Inc., 905 F. Supp. 2d 1013 (N.D. Cal. 2012). A decision by the Supreme Court  affirming the Ninth Circuit could have provided additional ammunition for defendants asserting a primary  jurisdiction defense in the product liability or other contexts. But instead the Supreme Court decided the issue  on different grounds.

In POM, petitioner, which produces and markets a pomegranate-blueberry juice, filed a Lanham Act suit  alleging that the name, labeling and advertising of Coca-Cola’s “Pomegranate Blueberry” juice misleads  consumers into believing that it consists predominantly of pomegranate and blueberry juice, thereby causing  decreased sales for petitioner. 134 S. Ct. at 2235. The lower courts held that the FDCA and the FDA’s  regulations precluded petitioner’s suit under the Lanham Act.  Id. at 2235-36. The Supreme Court reversed,  finding first that this was not a preemption case because it did not raise the question of whether state law is  preempted by federal law. Rather, the action concerned a question of preclusion between two federal statutes  that hinged on statutory interpretation. Id. at 2236. The Court noted that neither the Lanham Act nor the FDCA  expressly forbids Lanham Act claims challenging labels regulated by the FDCA, finding this to be “powerful  evidence that Congress did not  intend FDA oversight to be the exclusive means” of regulating food and  beverage labeling. Id. at 2237. The Court further found that the structures of the two statutes reinforced the  conclusion drawn from the text. The two statutes are complementary – while both touch on food and beverage  labeling, the Lanham Act protects commercial interests and the FDCA protects health and safety. Id. at 2238.  Moreover, because the FDCA’s enforcement is largely committed to FDA and the Lanham Act allows private  enforcement, “[a]llowing Lanham Act suits takes advantage of synergies among multiple methods of  regulation.” Id. at 2239. For these reasons, the Court stated that “[a] holding that the FDCA precludes Lanham  Act claims challenging food and beverage labels would not only ignore the distinct functional aspects of the  FDCA and the Lanham Act but would also lead to a result that Congress did not likely intend.” Id.

Because the Supreme Court expressly stated that its decision was about statutory interpretation rather than  preemption, the decision does not undermine the potential defense of primary jurisdiction in cases involving  heavily regulated industries. But it did not yield the strong opinion on primary jurisdiction that some had hoped  for. The POM decision does ensure that the Lanham Act remains a viable option for businesses in the food and  beverage industry seeking to protect their commercial interests even when those interests involve a product that is regulated under the FDCA.