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Pom v. Coke, Battle of the Misleading Fruits

pomegranateThe U.S. Supreme Court, on January 10, 2014, agreed to hear Pom’s argument that Coke’s fruit beverage labels (such as the one at right) are misleading. The excellent FDA Law Blog has good coverage of the controversy here. Coke’s Minute Maid product only has a tiny amount of pomegranate juice — less than 0.5% — and so Pom (rather than the government) argues that this is misleading especially inasmuch as the labels show pictures of pomegranates.

Pom’s superfamous lawyer argued:

This is a classic false advertising case. Pom and Coca-Cola compete directly in the market for pomegranate juices. Pom sells juices that—as purchasers would naturally expect—overwhelmingly contain actual pomegranate juice, which is sought by healthconscious consumers. Pom’s products include a pomegranate-blueberry juice. Coca-Cola sells and aggressively markets its competing “POMEGRANATE BLUEBERRY” juice, which it colors a deep purple and sells with a label containing a large image of each fruit. … Coca-Cola’s misleading label causes consumers to believe that the juice actually contains significant amounts of those fruits when in fact it contains only trivial amounts: 0.3% pomegranate juice and 0.2% blueberry juice. … Pom introduced survey evidence showing that consumers are in fact seriously misled.

Pom also quotes a key part of the government’s brief:  “Further, the ‘FDA does not approve juice labels, and its failure to initiate an enforcement action cannot be construed as such an approval.’” Other juicy tidbits courtesy of Pom include:  FDA and the FDC Act “sets a ‘floor’—not a ceiling—on federal regulation of labels.” Pom explains the sweeping importance of this case, and why it is so ripe for review:

Even if it were limited to food products, the ruling below grants tens of thousands of food and juice producers sweeping immunity with respect to countless products from liability under the Lanham Act for even knowingly misleading consumers. … The government recognizes that the court’s “deference to FDA’s available but unexercised authority would arguably preclude a Lanham Act challenge to the label of any food,” including “the many foods that FDA’s regulations do not specifically address at all.” … As the GAO has confirmed, the FDA “generally does not address misleading food labeling because it lacks the resources to conduct the substantive, empirical research on consumer perceptions.’”

By contrast, Coke not surprisingly argues “the FDA has adequate resources to regulate the content of food and juice labels.” Coke further argues:

whether a multi-fruit juice name or label is deceptive is not only within the FDA’s expertise, but is a topic that the FDA has already addressed in detailed and specific regulations. … As the United States correctly observes, the regulation “reflect[s] the agency’s balance of competing considerations in a specific setting that could easily be upset by the intrusion of a general private remedy such as that provided under Section 43(a) of the Lanham Act.”

Getting deep into the nitty gritty of the labels at issue and the rules, Coke proudly proclaims “Here, the letters ‘FLAVORED BLEND OF 5 JUICES’ comply with this specific regulation because, as is clear from the image …, they are more than one-half the height of the words ‘POMEGRANATE BLUEBERRY.’” Coke claims it is a big (“hyperbolic”) exaggeration to say FDA lacks sufficient resources to regulate food labels.

If Pom wins this battle, it will seem to be another sign that the government, step by step, as it gains powers in some areas, continues to relinquish power in other areas, to allow large segments of statutory and agency mandates to be effectively privatized (or libertarianized). For example, as here, Pom and other Coke competitors would become the reviewers of Coke’s labels every bit as much or more compared to what FDA might have done in the past. This case could have enormous implications far beyond FDA labels, and could extend all the way over to TTB labels, TTB formulas, excise taxes, TTB permits, to almost every area that alcohol beverage regulators have firmly controlled in the past. In other news, this case provides a wonderful forum for Pom to beat up on Coke, and remind everyone that Pom has more juice, up and down the U.S. court system, year after year (since at least 2008). I wonder how the cost of this lawsuit compares to or relates to an old-fashioned ad campaign in the paid media.

From our perspective, working with thousands of labels and hundreds of such questions (from the trivial to the weighty) on a yearly basis (as opposed to an appellate litigator or a judge dealing with this from time to time when it flares up big) it seems clear that such tricky questions will inevitably get “litigated.” The only question is whether they will get litigated in an agency proceeding (as has been common in the past), the media, amongst lawyers battling apart from a court or agency proceeding, or in the courts (as was fairly rare in the past). To the extent that Pom wins, we can expect a huge shift from the first to the last.

Beer, Pot and the Government

potJoe Sixpack this week has a good and thorough look at the many beer labels that talk about and tip a hat to their colleague, marijuana. The numbers and audacity are surely growing, as the old and antiquated laws fall by the wayside a bit. I like the quaint and funny reference to coats of arms:

With this month’s ballyhooed legalization of marijuana in Colorado, some beer makers are adding playful drug references to their brand names and labels, and regulators can do little to censor them.

Label oversight, a quirky if contentious area of federal alcohol law, has confounded breweries for years with often capricious standards that bear little on consumer protection.

Federal law, for example, oddly prohibits the use of coats of arms or wording that promises ‘pre-war strength,’ whatever that means.

Mr. Russell (aka Joe) also helped educate me that a safety meeting is not necessarily boring and dire:

Yes, there are limits. Dark Horse Brewing, in Michigan, lost its bid for Smells Like Weed IPA, though its hops, in fact, smell like pot. The name was later changed to Smells Like A Safety Meeting IPA. (A ‘safety meeting’ is slang for taking a break on the job to light up a doober.)

But expect to see fewer of those objections as more states move toward legalization.

Joe Sixpack has at least 16 label examples here and here.

Umami Spirits, with Mushrooms and Durt

durt

This one caught my eye as quite a bit unusual. It is spirits with added mushrooms, sea lettuce, parsnips and other root vegetables. It is Durt-brand spirits, produced by Melkon Khosrovian, and is not to be confused with Root-brand spirits. I don’t see much on the label or on the web to suggest what it tastes like, or how it is to be used, except where the label says “packed full of the umami flavor.” Wikipedia explains that umami is one of the five basic tastes along with salty, sweet, sour, and bitter, and “can be described as a pleasant ‘brothy’ or ‘meaty’ taste with a long lasting, mouthwatering and coating sensation over the tongue.”

Not to be left out of the umami-fest, here is a beer with plenty of umami, and a wine/sake “bursting with umami goodness.”

Malort

malort

On a long drive recently, NPR held up Malort as the gold standard for what tastes bad, as if this had been firmly decided. So, after hearing about this concoction over the years, it was time to see what all the revulsion was about. The New York Times said “The taste has been compared — by advocates and detractors alike — to rubbing alcohol, bile, gasoline, car wax, tires and paint thinner.” One “Malort face” is here, a collection is here (and NPR’s audio reaction is here).

Malort is Swedish for wormwood, a key ingredient of this liqueur. The same mischievous plant (also known as Artemisia absinthium) also provides a key ingredient and the name for absinthe and vermouth. Recent Jeppson’s labels do not mention the following, but the writing seemed so distinctive that I wanted to capture it before it recedes further into the past:

Most first-time drinkers of Jeppson Malort reject our liquor. Its strong, sharp taste is not for everyone. Our liquor is rugged and unrelenting (even brutal) to the palate. During almost 60 years of American distribution, we found only 1 out of 49 men will drink Jeppson Malort. During the lifetime of our founder, Carl Jeppson was apt to say, “My Malort is produced for that unique group of drinkers who disdain light flavor or neutral spirits.” It is not possible to forget our two-fisted liquor. The taste just lingers and lasts – seemingly forever. The first shot is hard to swallow! PERSERVERE [sic]. Make it past two “shock-glasses” and with the third you could be ours…forever.

I am not sure if it sounds more like a sales pitch or a threat. Other than the Wikipedia article, I could not find much to verify that this text appeared on labels. Apart from the shock value of this product, as per usual, legal issues abound. First, I wonder how this comes to be classified as a beverage (subject to taxing and licensing as an alcohol beverage). If this is not non-beverage or unfit for beverage purposes, it starts to get really difficult to make this distinction (as between potable and non-potable), so crucial to much of the law around alcohol beverages. Malort may underscore that it’s okay for one purveyor to elect to be regulated as a beverage, even when the liquid tastes awful, and even though it would not be okay for another purveyor (of drinks with “rugged and unrelenting” flavors) to capriciously elect to be regulated as non-beverage.

A second law-related issue arises from the ownership of this brand. Carl Jeppson was an immigrant from Sweden and brought Malort to the U.S. during the Prohibition era. Before Jeppson’s death in 1949, he sold the recipe to a Chicago lawyer, and he left the company to his secretary, Patricia Gabelick. As of 2012, Ms. Gabelick was a “69-year-old retired secretary who runs the company out of her condo on Lake Shore Drive” in Chicago. The Wall Street Journal explained:

sales climbed last year by more than 80% from just a few years ago to 23,500 bottles, with annual revenue of more than $170,000. … Ms. Gabelick seems a bit baffled by the interest in Malört, which was a hobby for her boss, George Brode, a Chicago lawyer who left the company and its one product to her when he died in 1999. … “All my life I wish George had made a product I could drink,” she says. … Jeppson’s Malört got its start when Mr. Brode landed one of Chicago’s first liquor licenses after the repeal of Prohibition in 1933. He added Malört to his stable of liquors when approached by Carl Jeppson, who had a recipe for a spirit favored by the city’s Swedish immigrant population. Mr. Brode eventually exited the liquor business for a career as a lawyer, but kept Jeppson’s Malört.

Even if this blog can’t help you with what to drink this holiday season, we wanted to do our part toward informing you what not to drink.

Beer Pong and Related Patent News

We try to stay on the lookout for good and serious patents related to alcohol beverages. A few good ones are here. Today, we wanted to take a look at the ones that seem even less serious and a bit more, frothy. Dan Christopherson is an experienced trademark lawyer, and a registered patent lawyer, and Dan located a few good examples as below. Dan explained, “With all of the bad press coming out lately reporting craft brewers suing each other for allegedly infringing their intellectual property rights, we thought it might be a good idea to try to lighten the mood a bit.”  With that in mind, here are a few humorous beer-related patent applications Dan came across:

  • Tooth Protector for Beverage Bottle and Beverage Bottle Enclosure” – US Patent Application No. 2012/0225166 by Krag David Hopps. I get as excited as the next guy/girl when I crack open a bottle of craft beer. That said, I have, to date, been able to temper my excitement enough to avoid crashing into and injuring my incisors with a beer bottle. Unfortunately for those individuals who have not shared in my good fortune, to quote Mr. Hopps, “No device has heretofore been available to protect a person’s teeth when he/she is drinking from a glass bottle.”  This device, shown on the left, literally shields a beer drinker’s teeth from a beer bottle while drinking from the bottle. Mr. Hopps’ invention is sure to bring us into the golden age of bottle consumption safety. Good news for those of you with drinking problems.
  • Chewing gum with containing ethanol flavors“ - US Patent Application No. 2013/0034625 by David L. Ross. It is truly unfortunate that this patent application apparently does not include any images because I would love to see what this invention looks like. Mr. Ross has invented a beer flavored gum wrapped in a beer mug/bottle/keg shaped packaging “that encloses between 0.01 milliliters and 2 milliliters of alcoholic beverage [ethanol] in at least one cavity inside the gum.”  Our rough calculations show that you’d have to chew at least 18 pieces of gum to get about the same alcohol content as a single bottle of a popular macrobrew. Better a sore jaw than a sore liver, I guess.
  • Netting system for drinking games” – US Patent Application No. 20120071278 by Andrew Mansfield. We agree with Mr. Mansfield’s sentiment that “a need exists for a cheap, easy to manufacture and an easy to use system that prevents ping pong balls from hitting the surrounding floor during game play.”  As Mr. Mansfield points out, the previous attempt to clean up these games by providing wash cups to clean playing balls before throwing them into an opponents’ beer glass “is inefficient and often ineffective as the wash cups become dirty and contaminated from repeated contact with dirty ping pong balls as the game progresses. In addition, research has shown that the wash cups still hold bacteria, such as E. coli.”  Without going through Mr. Mansfield’s undoubtedly comprehensive research results, we are relieved to hear that hygiene-conscious partygoers will no longer be left out of beer pong games.
  • Beer Pong Table with Cooling System” United States Patent No. 8,235,389, issued to Big Dog Pong, LLC. Big Dog Pong also took great strides to improve the great sport of Beer Pong with this invention. A true visionary, they recognize that playing beer pong on kitchen tables, closet doors, and other homemade tables can “unfairly affect the game” and that “beverages may become warm during play.” Big Dog Pong accomplishes all of this by placing a series of cooling areas into the table top surface of a standardized beer pong table.

We hope this post inspires you toward some frivolous or not so frivolous inventions of your own, or at least provides a welcome respite from the serious side of law, business, and intellectual property.

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