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100 percent and then some: Pom Wonderful denied preliminary injunction

By Rebecca Tushnet

Pom Wonderful LLC v. Purely Juice, Inc., 2008 WL 2019560 (9th Cir.)

Pom Wonderful alleged that Purely Juice falsely advertised its pomegranate juice, made from concentrate, as ?100% pomegranate juice? with ?no added sugar or sweeteners.? The court of appeals affirmed the denial of a preliminary injunction. Along with questions about FDA regulation, there was conflicting evidence about the facts?apparently different varietals (who knew pomegranates had varietals?), farming practices, and processing methods might affect the lab tests for additional sweeteners. The conclusion that neither side had shown the actual facts made a full trial on the merits necessary.

The court also concluded that the balance of hardships favored the defendant, since granting a preliminary injunction would remove Purely Juice from the marketplace. Given FDA regulations, Purely Juice couldn?t just remove the ads from its label and continue on. Without sufficient evidence that Pom Wonderful?s business was irreparably suffering, the balance of hardships was an independent reason to deny preliminary relief. Pom Wonderful argued that the district court failed to address the public interest, but (1) there were no health risks shown from Purely Juice?s advertising, even if false, and (2) likelihood of success on the merits of a false advertising case itself indicates which way the public interest lies; here it is just unclear.

(This is probably something to take up with the FDA, but really: how can something be ?100% pomegranate juice? and also have added ingredients? Is it like Lake Wobegon, where all the juices are above 100%?)

Full post as published by 43(B)log on May 14, 2008 (boomark / email).