June 16, 2014

Multiple publications quote Dan Silverman on Supreme Court’s Lanham Act ruling

2 min

The ruling stems from a lawsuit by POM Wonderful against Coca-Cola over Coke’s labeling of a juice

Venable partner Dan Silverman was quoted in multiple publications on June 12, 2014 following the Supreme Court’s Lanham Act ruling. In a unanimous decision, the Court ruled federal regulation of food and drink labels does not prevent companies from bringing false advertising claims under the Lanham Act. The ruling was the result of a lawsuit by POM Wonderful against Coca-Cola over Coke’s labeling of a drink as “Pomegranate Blueberry Flavored Blend of 5 Juices” when it only contained 0.3% pomegranate juice.

“The general issue before the court is whether a competitor can sue for false advertising under the Lanham Act challenging a product label, or whether the FDA has exclusive regulatory authority over food names and labels and therefore the Lanham Act claim should be precluded,” Silverman told Law360. “This decision proves that competitors can be successful at challenging their rivals and we can expect more vigorous litigation between competitors, as well as more class actions arising from consumer product labeling issues.” Silverman’s comments were echoed in USA Today and FoodNavigator-USA.

In a second Law360 article, Silverman added, “The ruling made it clear that the [Food Drug and Cosmetic Act] is a floor, not a ceiling…So even if your product complies with the FDCA, you can’t do so in a deceptive manner.”

Speaking with Functional Ingredients, Silverman said, “Frankly, the Supreme Court agreed with every argument POM made… They did not want to countenance deception.” He noted that the Court’s ruling made the FDCA “a floor, not a ceiling,” adding, “Just because you meet technical labeling requirements, you can’t dupe consumers. Yes, you have to meet requirements, but that’s not all. You can’t deceive. In the case of Coke, it was frankly a clear smoking gun they were out to deceive. The product, in large letters, says Pomegranate Blueberry, and the consumer think it’s mostly that, but there’s only 2 teaspoons of pomegranate and blueberry juice in a bottle.”