Pom Wonderful LLC, the self-proclaimed maker of 100% pomegranate juice, goes to trial on Tuesday against Tropicana Products Inc. over its advertising of a rival pomegranate juice blend.
The trial opens a month after the U.S. Federal Trade Commission (FTC) filed an administrative complaint against Pom, alleging that the company has made deceptive claims about the health benefits of its product. Pom had sued the FTC two weeks earlier, claiming that the agency’s rules regarding deceptive advertising violate the company’s free speech rights.
During a pretrial hearing on Monday, U.S. District Judge Dale Fischer in Los Angeles appeared inclined to exclude from the Tropicana trial the FTC complaint, as well a separate warning letter that the U.S. Food and Drug Administration issued to Pom saying that its “therapeutic claims” about its 100% pomegranate juice could violate the U.S. Food, Drug, and Cosmetic Act by depicting the drink as a drug.
Fischer concluded that that letter had “no evidentiary value” to the Tropicana trial.
Pom asserts that Tropicana’s Pure Pomegranate Blueberry drink, while packaged and marketed as if its primary ingredients were pomegranate and blueberry juice, contains only 27% pomegranate juice and is mostly pear juice.
Fischer said she anticipated opening arguments in the trial to begin Tuesday morning.
The Tropicana case is one of several suits Pom has filed in recent years against its competitors, including Ocean Spray Cranberries Inc. and The Coca-Cola Co., the parent corporation of Minute Maid.
On Sept. 15, a federal jury in Los Angeles found that Welch Foods Inc. deliberately deceived consumers through the advertising and labeling of its White Grape Pomegranate juice, which contains trace amounts of pomegranate juice. But the jury also found that Pom suffered no injuries from the illegal conduct. Pom claims that its competitors, by labeling juice blends as pomegranate juice even though they contain predominantly other juices, have engaged in deceptive and misleading advertising under the Lanham Act, the federal trademark law.
In the Coca-Cola case, U.S. District Judge James Otero in Los Angeles earlier this year granted Coke’s motion for summary judgment, concluding that the FDA’s regulations precluded Pom’s claims regarding Minute Maid’s Pomegranate Blueberry Flavored Blend. Pom’s opening brief before the U.S. Court of Appeals for the 9th Circuit is due on Nov. 8.
Fischer, however, refused to grant Tropicana’s motion to dismiss. “Defendant’s motion is ultimately premised on the idea that the FDA has exclusive enforcement power over any claim related to a juice label. This is not correct,” she wrote in a Sept. 7 order.
She also denied Tropicana’s motion for summary judgment based on an “unclean hands” defense asserting that Pom has engaged in deceptive advertising of its own product, which, although labeled as 100% pomegranate juice, contains large amounts of water.
During Monday’s hearing, however, Fischer appeared willing to allow Tropicana to introduce those claims before the jury.
She also seemed unconvinced that Pom could make its case before a jury without scientific testimony addressing the company’s health claims. Pom’s lawyers are attempting to take out those claims amid recent governmental actions challenging them. The health claims made up the “most prominent and central” part of the original complaint, Fischer said.
“I’m not sure we’d even be here if the health claims weren’t in the complaint,” Fischer said. “This is a case about health issues. I don’t see how you move forward without it.”
The debate, which also came up in the Welch’s case, consumed the better part of the hearing as Pom’s lawyers repeatedly attempted to argue that its scientific research should play no part in whether Tropicana falsely advertised its own product.
“We do not intend to make the case that Pom created this market and they stole our market,” said Todd Theodora, senior attorney at Theodora Oringher Miller & Richman in Los Angeles.
Whether there really are health benefits to pomegranate juice is a “side show,” he said.
In response, Rick Shackelford, a shareholder in the Los Angeles office of Greenberg Traurig representing Tropicana, a subsidiary of PepsiCo Inc., said his client is “entitled to go forward on allegations they [Pom] made in their complaint.”
Pom succeeded in leaving out of the trial the recent government actions.
During Monday’s hearing, Dan Silverman, associate general counsel of Pom parent company Roll International Corp., told the judge that Tropicana intended to use the recent government inquiries, which were “completely inappropriate” for this trial, to bolster the “unclean hands” defense.
In its suit, the FTC has charged Pom with making “false and unsubstantiated claims” that its 100% pomegranate juice prevents heart disease, prostrate cancer and erectile dysfunction.
The suit was filed against Roll International, its founders, Stewart and Lynda Resnick, and Matthew Tupper, its president and chief operating officer.
On Tuesday, in the Tropicana case, Pom’s lawyers asked the court to continue the trial date to Dec. 7, given that Theodora had a sudden conflict involving another case.
Three days later, star litigator Bertram Fields, a partner at Los Angeles-based Greenberg Glusker Fields Claman & Machtinger, said he would be representing Pom in the trial and needed additional time to prepare. Pom withdrew its continuance request the same day, noting that Theodora’s previous conflict no longer existed.
Fields was not present during Monday’s hearing.
Amanda Bronstad can be contacted at [email protected].
