WASHINGTON (AP) — Count Supreme Court Justice Anthony Kennedy among consumers who feel misled by a beverage called "Pomegranate Blueberry Flavored Blend of 5 Juices."
The drink was the subject of a lively debate Monday as the high court considered whether to allow false advertising claims against the Coca-Cola Co., which markets the beverage under its Minute Maid unit.
Juice maker Pom Wonderful, which sells its own line of pomegranate juice blends, says the label is misleading because 99 percent of its competitor's juice is either apple or grape.
"Don't make me feel bad because I thought this was pomegranate juice," Kennedy told Coke's lawyer, Kathleen Sullivan, as laughter erupted in the court.
"He sometimes doesn't read closely enough," Justice Antonin Scalia chimed in to more laughter.
Sullivan argued that Pom's lawsuit should not be allowed to go forward because Coke's label fully complies with the federal Food and Drug Administration's regulations. Those regulations were approved in the interest of national uniformity, she said, and preclude competitors from bringing false advertising claims under conflicting federal trademark laws.
But Kennedy was having none of it. He asked whether the national uniformity argument is furthered in allowing "labels that cheat the consumer like this one did."
"I think it's relevant to ask whether people are cheated in buying this product," Kennedy said.
At the same time, Pom separately is battling its own misleading advertising case against the federal government. A Federal Trade Commission judge ruled in 2012 that Pom used deceptive advertising when claiming that its pomegranate juice could treat or prevent heart disease, prostate cancer and other illnesses. Pom has appealed that case, and the U.S. Court of Appeals for the D.C. Circuit is set to hear arguments May 2.
But at the high court Monday, Pom's challenge to Coke's drink label appeared to be winning over the justices. Chief Justice John Roberts said he didn't see why a label couldn't comply with FDA regulations but still be challenged as misleading to consumers for different reasons.
Sullivan said it would be a "logistical nightmare" for food companies to have to change labels in response to every private lawsuit. She asserted that Congress believed the FDA was in the best position to enforce label requirements.
Justice Ruth Bader Ginsburg noted that the FDA is a busy agency and doesn't have much time to police juice labels. Ginsburg questioned whether Congress intended to preclude private false advertising claims.
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