Consumer suit against juice name preempted

Bell v. Campbell Soup Co.,  No. 4:14cv291, 2014 WL 6997611 (N.D. Fla. Dec. 11, 2014)

The facts are essentially the same as in Pom Wonderful v. Coca-Cola, but the result is that only competitors, not consumers, can sue for false advertising of juices.  (I wonder if Campbell also received threats from Pom.)

The court kicked out this Florida consumer protection case against two fruit and vegetable juices as preempted by the FDCA’s ban on non-identical state requirements.  The two V8 V-Fusion drinks at issue were pomegranate blueberry and açai mixed berry, but the analysis was the same.  The pomegranate blueberry juice contains only a tiny amount—less than 1%—of pomegranate and blueberry juice; the juice is predominantly from sweet potatoes and purple carrots. A “thorough reading” of the back information panel discloses that the largest portion of the juice comes from sweet potatoes, followed by purple carrots, then other fruits and vegetables, and finally pomegranates and blueberries.

Plaintiffs argued that the primary display panel was nonetheless misleading, suggesting that the product was 100% pomegranate and blueberry juice:

Even assuming that the jury could find this to be misleading, every statement on the primary display panel was “either unobjectionable or complies to the letter” with FDA rules.  The plaintiffs argued that the placement of “100% Juice” and its larger size was misleading, along with the vignette prominently depicting only pomegranates and blueberries.  The court expressed skepticism about misleadingness, since it thought that many consumers would understand that V8 was a blend of fruit and vegetable juices and would notice other statements on the primary display panel.  But regardless, the label complied with the FDA’s juice labeling requirements for indicating common names; names can include the flavoring juice so long as the label includes a statement “that the named juice is present as a flavoring.” So it was here.

The federal rules didn’t address where the statements should be placed, and a requirement to place them elsewhere, phrase them differently, or change the vignette would be a non-identical requirement.  The court rejected plaintiffs’ argument that preemption only barred a requirement that Campbell change the label, not damages; that made no sense.