The Supreme Court granted certiorari on January 10, 2014 in Pom Wonderful LLC v. Coca-Cola Company, 679 F.3d 1170 (9th Cir. 2012), to decide whether the primary jurisdiction doctrine bars a private party from bringing a Lanham Act claim challenging a product label regulated under the Food, Drug, and Cosmetic Act (FDCA).
In Pom Wonderful, Plaintiff, a juice manufacturer, brought an action against a competitor challenging the name, labeling, marketing, and advertising of the competitor’s juice product as false advertising under the Lanham Act. 679 F.3d at 1174. Specifically, Plaintiff alleged that the name “Pomegranate Blueberry” misrepresented the actual contents of the beverage, and the phrase “Flavored Blend of 5 Juices” which appeared in the label was misleadingly less conspicuous than the beverage name. Id. at 1177. The Ninth Circuit held that the FDCA and its regulations—which govern food naming and labeling—“bar pursuit of both the name and labeling aspects of [plaintiff’s] Lanham Act claim.” Id. at 1176. The Court reasoned that “Congress and the FDA have . . . considered and spoken to what content a label must bear, and the relative sizes in which the label must bear it, so as not to deceive” and that “[i]f the FDA believes that more should be done to prevent deception, or that [defendant’s] label misleads consumers, it can act.” Id. at 1177. The Court found deference was appropriate in these circumstances because “to act when the FDA has not—despite regulating extensively in this area—would risk undercutting the FDA’s expert judgments and authority.” Id.
The Supreme Court’s decision could well have broader implications than the Lanham Act. The Court’s general approach to deference to FDA in areas where Congress has granted the agency extensive regulatory authority, as well as its treatment of the scope of the primary jurisdiction doctrine, could have important implications for product liability suits involving the broad range of FDA-regulated products