It’s Like Comparing Apples and Pomegranates; Jury Doesn’t Buy Pom Wonderful’s False Advertising Claims

In January 2009 Plaintiff Pom Wonderful LLC (“Pom”) filed a complaint against Ocean Spray Cranberries, Inc. (“Ocean Spray”), alleging false advertising and unfair competition in respect to the marketing of its “100% Cranberry and Pomegranate” juice (pictured). Apparently, the labeling prominently featured pomegranates when in fact the juice contained only 2% pomegranate juice with the main ingredients being grape and apple juice. According to Pom, this deceived consumers and thus diverted sales from its own pomegranate juice product.

Ocean Spray countered with an “unclean hands” affirmative defense by alleging that Pom misled consumers by (1) failing to disclose that water is a primary ingredient of “POM Wonderful brand beverage products,” (2) failing to disclose that Pom's product is made from concentrate, and (3) misrepresenting that Pom products are fresh squeezed into bottles, when in fact Pom makes its juice from concentrate. Pom Wonderful LLC v. Ocean Spray Cranberries, Inc., 2011 WL 4852481 (C.D. Cal. Oct. 12, 2011). Based on these allegations, Ocean Spray lodged its own false advertising counterclaim against Pom. Pom Wonderful LLC v. Ocean Spray Cranberries, Inc., 2011 WL 4852472 (C.D. Cal. Oct. 12, 2011). Admitting that it has no evidence supporting the impact of Pom’s advertising on its own sales, and that if such impact did exist, it would be negligible and unquantifiable, Ocean Spray urged the court to use its discretion in permitting monetary relief based on the totality of the circumstances.

While the court refused to strike Ocean Spray’s defense, it granted summary judgment for Pom on Ocean Spray’s counterclaim. Not only did Ocean Spray fail to provide why the totality of the circumstances warrants relief, it appears that Ocean Spray has benefited from Pom’s deceptive trade practices. “Ocean Spray's Chief Operating Officer testified that strong sales of Ocean Spray's pomegranate-flavored product were attributable, at least in part, to the popularity of pomegranate juice resulting from Pom's advertising efforts.” Pom Wonderful, 2011 WL 4852472.

Aware of this, Ocean Spray persisted that this was a comparative advertising case, where a direct reference to a competitor’s product presumes injury because it diminishes the brand’s value in the mind of the consumers. As evidence, it offered Pom’s reference to “cranberry juice cocktails” in Pom’s advertising. Ocean Spray claimed that its brand is exclusively associated with cranberry juice cocktails since that is its “primary product.” However, the court was not persuaded. “Pom's reference to a generic product or class of products does not exhibit the specificity required of a comparative advertisement.” Pom Wonderful, 2011 WL 4852472.

Ocean Spray had a better chance with its evidence of Pom’s “Pomegranate Truth” website, which features images of three competing juices, including Ocean Spray’s Cranberry & Pomegranate Juice. However, the website merely lists the ingredients of the juice, the veracity of which Ocean Spray does not dispute. “Had Pom made some false comparative statement regarding Ocean Spray's Juice, the use of an image of the Juice's bottle would likely be sufficiently specific to constitute a comparative advertisement. The website, however, makes no misleading statement of the type described in Ocean Spray's counterclaim.” Id. The referenced page can be found here:

However, even though Pom managed to get to trial, it didn’t fare so well with its own claims among the jury. JurisNotes reports that after a two-week trial, the jury only deliberated for two hours before issuing their verdict. The jury curtailed the question of Pom’s damages by agreeing that it was unable to prove that Ocean Spray’s label or advertising was misleading.

Pom has also been unsuccessful with similar cases against other competitors such as Tropicana and Welch. Nevertheless, for some reason I feel that a class action may be brewing against all of these companies.