Friday, August 21, 2015

Consumers can't bring the claim that Pom could against Minute Maid

Stansfield v. Minute Maid Co., 2015 WL 4873685, No. 4:14cv290 (N.D. Fla. Aug. 13, 2015)
The court kicked out consumer protection claims based on the same falsity alleged in Pom Wonderful v. Coca-Cola, on the ground that they were preempted by the FDCA.  Minute Maid’s “pomegranate and blueberry flavored blend of five juices” is 99.4% apple and grape juices, 0.3% pomegranate juice, 0.2% blueberry juice, and 0.1% raspberry juice.  Plaintiffs alleged that the principal display panel was misleading. They alleged that they paid a price premium because they believed the product had sufficient pomegranate and blueberry juice to provide the associated benefits, and didn’t know it was mostly apple and grape juice.

The FDCA expressly preempts state laws that aren’t identical with its requirements.  Under the FDCA, a food is misbranded if its label does not bear “the common or usual name of the food, if any there be,” or if information required to appear on its label “is not prominently placed thereon with such conspicuousness (as compared with other words, statements, designs, or devices, in the labeling) and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use.” In addition, a food is misbranded if its labeling is “false or misleading in any particular.” If a food violates an implementing regulation, and so is misbranded under § 343, plaintiffs may bring a parallel claim under state law to impose an identical requirement.  But Minute Maid argued that the challenged aspects of the label were authorized.
Plaintiffs’ first theory was that the label didn’t bear the “common or usual name of the food.”  FDA regulations require the name to “accurately identify or describe, in as simple and direct terms as possible, the basic nature of the food or its characterizing properties or ingredients.” Moreover, if the proportion of a characterizing ingredient “has a material bearing on price or consumer acceptance or when the labeling or the appearance of the food may otherwise create an erroneous impression that such ingredient[ ] ... is present in an amount greater than is actually the case,” the regulation presumes that the percentage of that ingredient will be declared unless a more specific rule says otherwise.  However, there’s a more specific regulation for multiple-juice beverages.  “[W]here the named juice is not the predominant juice, the common or usual name for the product shall ... [i]ndicate that the named juice is present as a flavor or flavoring.”

Plaintiffs didn’t argue that the product didn’t taste like pomegranate and blueberry juice. Instead, they said that, because there is so little pomegranate and blueberry juice in the beverage, as a causal matter the juice was not getting a pomegranate and blueberry flavor from those juices, but rather from “other natural flavors.” The FDA explained that it believed the use of “flavor” would inform consumers that the juice was present “in an amount sufficient to flavor the beverage” but wouldn’t “imply that the content of that juice is greater than is actually the case.” Thus, under plaintiffs’ interpretation of the regulation, “if a named minority juice actually flavors the beverage, then the label may say as much.”
The court disagreed: the regulation said that non-predominant but named juices should be indicated with the words “flavor” or “flavoring”; there was no requirement of “gustatory causation.”  On the facts alleged, the product complied with the regulation.
Plaintiffs then argued that the NLEA didn’t block challenges to the label “as a whole” or “in a respect not specifically required or authorized by a federal preemptive regulation.” Aspects of labels that are required or permitted by a more specific provision “by definition, are not considered ‘false or misleading’ under federal law.”  But the rest of the label must still comply with the law and not be “false or misleading in any particular.”   In Pom Wonderful, the government argued that “compliance with FDA’s juice-naming regulations does make the juice’s name nonmisleading,” and that the FDA “could not (and would not) bring an enforcement action against a manufacturer … for naming its product ‘Raspcranberry; raspberry and cranberry flavored juice drink,’ if raspberry and cranberry juices were present as flavors, even if the drink was primarily white grape juice.”
So, to escape preemption, plaintiffs had to identify some aspect of the label that wasn’t required or permitted by the regulations which a reasonable jury could find made the label false or misleading.  Plaintiffs pointed to the depiction of fruit on the label; the placement, lettering, type-size, and spacing of the juice name; and other labeling statements.
As to the name, the regulations say that when a product doesn’t have enough of an ingredient to “independently characterize” the food, the word “flavored” has to be used in letters at least half as big as those of the characterizing ingredient.  It was the appropriate size here.  In addition, the juices not named in the product’s name were appropriately represented in “BLEND OF 5 JUICES.”

Fruit vignette: The use of a vignette triggers the requirement that the characterizing flavors— blueberry and pomegranate—be “followed by the word ‘flavored’ in letters not less than one-half the height of the letters in the name of the characterizing flavor.” Minute Maid complied.  Plaintiffs nonetheless argued that the vignette was misleading because “it displays oversized pomegranate and blueberries at least as prominently as an apple and grapes, even though there is virtually no pomegranate or blueberry juice in this product.” The FDA hasn’t issued formal regulations about the content of fruit vignettes, though it did discuss them in the preamble to the juice labeling regulation, which was entitled to Skidmore deference.  The preamble stated that a vignette didn’t need to include each juice source, as long as the written label was appropriate, so “a vignette depicting raspberries would not necessarily be misleading if the statement of identity were ‘raspberry juice in a blend’….”  Nor did the FDA impose a specific size requirement because the size and shape of juice sources vary, and it didn’t determine that there were useful ways to display quantitative relationships.  However, ultimately the vignette couldn’t contradict the other label statements—a determination the agency said it would make on a case by case basis.
Under this guidance, Minute Maid “did precisely what the FDA said to do,” even though it could have had pomegranate and blueberry in the vignette.  There were no other arguments that the vignette was misleading for other reasons, such as taste or including a juice source that wasn’t really in the product.
Finally, plaintiffs argued that they could challenge the label “as a whole.”  But the regulations required or permitted certain aspects, and the label tracked the FDA’s guidance on misleading use.  The court wouldn’t allow the whole to be more misleading than the sum of its parts.

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