POM Wonderful & Coca-Cola Duke It Out

     LOS ANGELES (CN) – Coca-Cola told a federal judge Tuesday that POM Wonderful deliberately misled consumers, as it fights POM’s false advertising claims in a case slated for trial in March.
     POM accused Coca-Cola of false advertising and unfair competition in 2008, claiming that Coke’s Minute Maid Enhanced Pomegranate Blueberry drink contained more apple and grape juice than pomegranate or blueberries.
     An estimated one-week trial is set to begin March 15 in U.S. District Judge James Otero’s courtroom.
     Coca-Cola’s packaging and marketing deceived the health-conscious consumers it was aimed at, POM said, because the volume of pomegranate juice ranked third behind apple and grape juice in the beverage. Blueberry juice ranked fifth, POM said.
     POM Wonderful, in its distinctively shaped bottle, has turned pomegranate juice into a cash cow since it was founded in 2002. It has aggressively sued other makers of pomegranate juice (there are 20 cases in the Courthouse News database), and has been sued itself, 60 times, often for allegedly overstating the health benefits of pomegranate juice.
     In its Sept. 22, 2008 lawsuit against Coke, POM Wonderful said: “Because the cost to produce Coca-Cola’s product containing economically inferior components is far less than the cost to produce actual pomegranate blueberry juice (i.e., a juice product whose primary ingredients are actually pomegranate and blueberry juice), Coca-Cola can charge less for its product than competitors, including plaintiff, while reaping a substantial profit.”
     Coca-Cola discontinued the product in 2014 after poor sales.
     In early 2009, the court partially ruled for Coca-Cola and threw out POM’s claim of false advertising in the naming and labeling on the Minute Maid bottle.
     After appealing to the Ninth Circuit, POM won a hearing at the U.S. Supreme Court in 2014. The high court revived POM claims that Coca-Cola’s label on the juice was misleading .
     At the Tuesday hearing, Otero considered POM Wonderful’s motion for summary judgment on Coca-Cola’s claim that POM had built its brand by deceiving the public and therefore has “unclean hands.”
     Coke claims that POM juices are not fresh-squeezed as POM represented, but concentrated, and that it has made health claims unsupported by science.
     POM’s attorney Kristina Diaz with Roll Law argued Tuesday that Coca-Cola should not be allowed to raise that defense at trial because the conduct it describes does not directly relate to POM’s complaint.
     Coca-Cola cited POM’s ongoing dispute with the Federal Trade Commission, which found that a POM Wonderful marketing campaign between 2003 and 2010 deceived the public. The FTC found that the juice-maker misrepresented that its products could treat and prevent diseases, including prostate cancer.
     Otero seemed receptive to Coca-Cola’s argument, noting that it appeared from the record that the FTC had found POM’s advertising misleading.
     But Diaz said the FTC did not conclude that POM had advertised its products based on false health claims. The “healthiness” of POM products had “never been challenged,” she said.
     “How could they say without any evidence that we built our product on false health claims? The FTC did not say that,” Diaz said.
     But Coca-Cola’s attorney Steven Zalesin, with Patterson Belknap Webb & Tyler, of New York, told Otero that Coca-Cola only had to show that the connection was related.
     “There has to be relationship. It doesn’t have to be direct,” Zalesin told the judge. “We are not talking about some made-up relationship or connection.”
     Zalesin said the FTC concluded that POM had “misrepresented the state of science and lied to consumers” and that its notion that there was not a “scintilla of evidence” to support Coke’s defense was “ridiculous.”
     Goodwin Proctor attorney Forrest Hainline also appeared for POM. Patterson Belknap attorney Travis Tu was also in court for Coca-Cola.
     Otero did not indicate when he would rule on POM’s motion for partial summary judgment.

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