Juicemaker wages dual legal battles

WASHINGTON — The deep-pocketed pomegranate juice makers of POM Wonderful are now fighting a multi-front war over commercial speech.

In one federal court, the California-based company is on offense. It's challenging Coca-Cola Co. over the latter's use of "Pomegranate Blueberry" on certain juice labels, sold under the Minute Maid brand. POM Wonderful officials call the labels misleading.

But in another federal court, POM Wonderful is on defense. The company is trying to fend off the Federal Trade Commission's order that it stop making certain claims of its own.

The separate legal fights have engaged some of the nation's premier lawyers. They are also raising questions whose answers could reverberate well-beyond the pomegranate orchards of California's San Joaquin Valley.

Founded by Stewart and Linda Resnick in Los Angeles, with orchards about 100 miles away in the southern San Joaquin Valley, the privately held POM Wonderful LLC produces pomegranate juice sold in distinctively bulbed bottles. The Resnicks also have vast citrus and other agricultural holdings, through their Roll Global corporation, and are reported by Forbes magazine to have a net worth of $2.2 billion.

Health claims, backed by millions of dollars in research funded by the company, have long flavored POM Wonderful's marketing.

The FTC unanimously concluded in January that POM Wonderful had made "deceptive claims" in 36 advertisements and promotional materials.

Officials barred the company from claiming the product was effective against any disease, "including heart disease, prostate cancer and erectile dysfunction, unless the claim is supported by two randomized, well-controlled, human clinical trials."

POM Wonderful is challenging the commission's order, with an appeal now ripening before the U.S. Court of Appeals for the District of Columbia Circuit. In an opening brief filed Aug. 16, the company contends that the FTC bans constitutionally protected speech.

A different kind of speech dispute pits POM Wonderful against Coca-Cola, in the fight now being served up to the U.S. Supreme Court.

POM Wonderful used a federal law called the Lanham Act to claim Coca-Cola misleadingly labeled its pomegranate-blueberry product. Less than 1 percent of the latter juice came from pomegranates or blueberries; nearly all comes from apple or grape juice.

The 9th U.S. Circuit Court of Appeals rejected the suit, reasoning that the Food and Drug Administration had already pre-empted labeling oversight. The FDA had completed extensive rule-making to spell out how juice blends can be labeled, and had specifically permitted blends to be identified by a "non-primary—but "characteristic" juice.

"If allowed to stand," POM Wonderful's attorneys, including former Solicitor General Seth Waxman, declared in one legal filing, "the 9th Circuit's opinion would have far-reaching consequences."

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