The newest wave of false advertising consumer class actions asserts that consumer labeling or marketing violates state unfair competition laws by confusing (or potentially confusing) consumers. While brought under state consumer protection laws, many are sparked by some sort of Food and Drug Administration or other agency action, or involve products or labeling regulated by the FDA. The result is a delicate interplay between, on the one hand, what is allowed, what is required and what is prohibited under federal law; and on the other hand, what is required under a given state’s consumer protection law. This interplay, however, does not always provide straightforward guidance to manufacturers marketing their wares.

Additional guidance may soon arrive from the U.S. Supreme Court. On April 21, the court is scheduled to hear oral argument on whether a private action may be brought by a competitor under the Lanham Act for deceptive labeling and marketing that allegedly creates a likelihood of confusion even when the product’s labeling complies with FDA regulations that govern deception and confusion in food labeling. The case before the court, Pom Wonderful LLC v. Coca-Cola Co., will require the justices to weigh a competitor’s private action under the federal Lanham Act against the regulatory structure of the federal Food, Drug and Cosmetics Act (FDCA). Since many state consumer protection statutes contain Lanham Act “likelihood of confusion” prohibitions, the court’s decision also may inform consumer protection actions brought under state law.

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