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Discendo Vox posted:I haven't read the decision yet, but if Pom prevailed, it's going to be a Very Bad Thing. The company is known for their own deceptive and overly broad health effect claims; these most recent suits have been specifically over applying flavor labeling in a way the FDA hadn't intended- which is, again, a Bad Thing. They'll be using it to prevent anyone else from marketing juice blends or artificial flavored products in a way that will really badly disturb food labeling law. If it has the effect of cleaving FDA and FTC positions on these practices, that's even worse. The ruling was that just because a label meets FDA requirements doesn't mean that it is exempt from the requirements of the Lanham Act with regard to being deceptive, not that the juice blend label was deceptive. But Pom probably was the only food company large and litigious enough to push this through to that conclusion because the rest of the food industry either loves being deceptive as gently caress with their labeling or is too small to not get squished. As an aside food labeling has clearly passed beyond puffery and into deception. With the combination of the naming and the prominence of the pomegranate and blueberries the label was clearly implying to a customer that those juices made a substantial portion of the blend and not 0.3% and 0.2% respectively. Even Justice Kennedy indicated he was fooled. Net good, but due to the wrong reasons perhaps?
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Jun 12, 2014 21:32
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hobbesmaster posted:Grab some popcorn, this going to result in some interesting lawsuits. That's not popcorn, my attorneys will be in touch.
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Jun 12, 2014 21:32
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Hieronymous Alloy posted:Well, it's bad in that it makes the standards confusing but why is it bad for consumers? It would seem that the logical defense to these suits would be to actually label your products honestly -- i.e., don't sell grape juice with blueberry flavoring as "blueberry juice," even if technically allowed to by FDA rules. If you're going to sell blueberry juice make it with real blueberries? Two reasons, first, because current FDA rules already incorporate that practice in product name labeling and ingredient list regs. There are already front of package flavoring label requirements for scenarios like the one you describe. Second, POM is pursuing this because it's going to let them litigate blended juice products- this is the same company that tried to prevent all its competitors from using the word "pomegranate" on their labels, then tried to sue them for having fruit juices in the product name if there were also other fruit juices in the product. That's the thing about POM wonderful as a company- you can rely on the fact that any lawsuit they bring is trying to abuse the regulatory structure to shut down the market. If a POM case sounds reasonable, it's because they've falsified evidence or excluded facts. Shifty Pony posted:The ruling was that just because a label meets FDA requirements doesn't mean that it is exempt from the requirements of the Lanham Act with regard to being deceptive, not that the juice blend label was deceptive. But Pom probably was the only food company large and litigious enough to push this through to that conclusion because the rest of the food industry either loves being deceptive as gently caress with their labeling or is too small to not get squished. That's going to create a huge mess, because industry will play the two agencies against each other. FDA labeling regs are specific enough that label elements that fall under their remit should solely fall under their remit- if there are problems, they should be resolved at the level of the agency that's also regulating, and fully understands, the content of the product. Shifty Pony posted:As an aside food labeling has clearly passed beyond puffery and into deception. With the combination of the naming and the prominence of the pomegranate and blueberries the label was clearly implying to a customer that those juices made a substantial portion of the blend and not 0.3% and 0.2% respectively. Even Justice Kennedy indicated he was fooled. Kennedy being fooled by labeling is a low standard. The whole thing is that the amount of a fruit juice isn't significant in a product from a consumer information standpoint, and isn't the basis of product names- and if it is a subject of consumer interest, labeling statements to that effect would be subject to Lanham. A huge number of products use simulated flavors, and while it might feel reasonable to enforce against some juice companies on this point, it'll effectively bar a lot of products from market and raise the production costs of others. evilweasel posted:That's not popcorn, my attorneys will be in touch. "Buttered" microwave popcorn would probably be an example of this. Discendo Vox fucked around with this message at 21:43 on Jun 12, 2014 |
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Jun 12, 2014 21:34
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Discendo Vox posted:
I think Kennedy being fooled by the labeling seems appropriate, and relative amount of juice seems like an extremely significant detail to me. If I buy something labeled "orange juice" I don't expect to get 99% apple with an artificial orange flavoring added. Hell, I'm not sure I'd have a problem with requiring simulated flavoring to be explicitly labeled as such in all cases. I get what you're saying about POM being a bad actor but sometimes the devil quotes scripture. This may be a case where the better remedy would've been improved FDA regulation instead of a judicial remedy, but the problem of things being labelled blueberry juice that don't have any significant amount of actual blueberry in them seems significant, especially if people are buying juices for supposed health benefits of particular fruits rather than for flavor. I mean, poo poo, switch the context. If this were 99% rat meat with beef flavoring being sold as "ground beef" no one would think twice before grabbing the pitchforks. Just because something is accepted industry practice doesn't mean it isn't a giant con of consumers that should be shut down. Truth in labeling should mean actual truth, i.e., the actual prohibition of practices that would deceive an ordinary consumer. Hieronymous Alloy fucked around with this message at 22:03 on Jun 12, 2014 |
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Jun 12, 2014 21:55
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Hieronymous Alloy posted:I think Kennedy being fooled by the labeling seems appropriate, and relative amount of juice seems like an extremely significant detail to me. If I buy something labeled "orange juice" I don't expect to get 99% apple with an artificial orange flavoring added. Hell, I'm not sure I'd have a problem with requiring simulated flavoring to be explicitly labeled as such in all cases. This is already required under current ingredient listing and product name laws. I really need to read the case- it sounds like POM successfully manipulated a product ingredient ratio scenario that is vaguely counterintuitive into an attack on all artificial flavoring and other products that could compete with their product. To explain the labeling a bit, using your example, you can tell if that's the case because ingredients are listed in order of volume in the listing, so apple juice would be listed first and a chemical name or "artificial flavors" would be listed last. There are similarly explicit requirements on product identity naming, although I can't recall their exact composition- my EAS labeling bible says they're at 21 CFR 101.30 and 102.23. Hieronymous Alloy posted:I mean, poo poo, switch the context. If this were 99% rat meat with beef flavoring being sold as "ground beef" no one would think twice before grabbing the pitchforks. Just because something is accepted industry practice doesn't mean it isn't a giant con of consumers that should be shut down. Truth in labeling should mean actual truth, i.e., the actual prohibition of practices that would deceive an ordinary consumer. That's USDA, which has different regs and a worse capture problem. It's also very different from a blended juice product. I don't know the area as well, but if you're interested in how that would play out, I believe this document is up to date. Discendo Vox fucked around with this message at 22:06 on Jun 12, 2014 |
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Jun 12, 2014 22:02
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Discendo Vox posted:This is already required under current ingredient listing and product name laws. I really need to read the case- it sounds like POM successfully manipulated a product ingredient ratio scenario that is vaguely counterintuitive into an attack on all artificial flavoring and other products that could compete with their product. 21 CFR 101.30 mandates disclosing the breakdown of fruit juices. 21 CFR 102.23 deals with peanuts. 101.30 essentially is why they're saying on the label that it's actually only less than one percent pomegranate juice. The regulations don't cover how they name their product or how they market it. They require the disclosure of pertinent information. However, I'd argue that the common legal argument you're making is generally a fiction - essentially, that when there is disclosure such that you could figure out the fraud in a technical sense, there's no fraud even if you're deliberately trying to snooker someone (and did snooker them when they didn't read the fine print). I dislike that standard - which makes sense in negotiations between sophisticated parties - being applied when there's a sophisticated party on one side and the general public on the other. Now, it may also be that POM is an irredeemable shitlord of a company but I think this is a case where the shitlords might actually have a point and the focus should be on the courts establishing a good standard for what counts as deceptive rather than keeping if something is deceptive out of the courts altogether.
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Jun 12, 2014 22:10
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But the mandated disclosures are much more than technical ones that anybody could miss! 21 CFR 101.30 posted:
These are front of label requirements- I believe they have to appear right next to the product name. If the products at issue were still misleading, it's because the company in question was breaking other parts of the labeling law involving size or location of these disclosures. Discendo Vox fucked around with this message at 22:20 on Jun 12, 2014 |
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Jun 12, 2014 22:17
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Discendo Vox posted:But the mandated disclosures are much more than technical ones that anybody could miss! I disagree, because as a practical matter we know that large amounts of people were mislead. That's what I'm getting at: I don't like this presumption that the information was disclosed, therefore it's not misleading. I have no problem with Coke arguing that based on the totality of the label it was not misleading and the mandated disclosures are a large part of that: I have a problem with the presumption that because the mandated disclosures were there it is not misleading. edit: I believe this is the label at issue:  (timged as it's huge, your guess is as good as mine what the unreadable blurb says) evilweasel fucked around with this message at 22:26 on Jun 12, 2014 |
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Jun 12, 2014 22:22
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evilweasel posted:I disagree, because as a practical matter we know that large amounts of people were mislead. That's what I'm getting at: I don't like this presumption that the information was disclosed, therefore it's not misleading. I have no problem with Coke arguing that based on the totality of the label it was not misleading and the mandated disclosures are a large part of that: I have a problem with the presumption that because the mandated disclosures were there it is not misleading. FROM CONCENTRATE WITH ADDED INGREDIENTS AND OTHER NATURAL FLAVORS edit: And why it passes FDA muster is because it 1) only calls itself juice in the ingredient statement, 2) shows the entirety of the fruit makeup of the juice in a pictorial format (just not in proportion), 3) and no one drinks pomegranate/blueberry juice for its color or consistency which exempts it from listing % requirements because of subsection c, which Vox so conveniently omitted. quote:(c) If a beverage contains minor amounts of juice for flavoring and is labeled with a flavor description using terms such as "flavor", "flavored", or "flavoring" with a fruit or vegetable name and does not bear: OJ MIST 2 THE DICK fucked around with this message at 22:39 on Jun 12, 2014 |
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Jun 12, 2014 22:30
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evilweasel posted:I disagree, because as a practical matter we know that large amounts of people were mislead. That's what I'm getting at: I don't like this presumption that the information was disclosed, therefore it's not misleading. I have no problem with Coke arguing that based on the totality of the label it was not misleading and the mandated disclosures are a large part of that: I have a problem with the presumption that because the mandated disclosures were there it is not misleading. First off, I haven't seen a showing that people were misled, but more importantly, I think I've miscommunicated my position on the role of the FDA regs here. It's not the presumption that information was disclosed, it's that there's a whole regulatory and legal apparatus being second-guessed on a limited knowledge of the law and facts, and that the legal structure already precludes the practice in question. From the decision: quote:POM competes in the pomegranate-blueberry juice market with the Coca-Cola Company. Coca-Cola, under its Minute Maid brand, created a juice blend containing 99.4% apple and grape juices, 0.3% pomegranate [*6] juice, 0.2% blueberry juice, and 0.1% raspberry juice. Id., at 38a; Brief for Respondent 8. Despite the minuscule amount of pomegranate and blueberry juices in the blend, the front label of the Coca-Cola product displays the words "pomegranate blueberry" in all capital letters, on two separate lines. App. 38a. Below those words, Coca-Cola placed the phrase "flavored blend of 5 juices" in much smaller type. Ibid. And below that phrase, in still smaller type, were the words "from concentrate with added ingredients"-and, with a line break before the final phrase- "and other natural flavors." Ibid. The product's front label also displays a vignette of blueberries, grapes, and raspberries in front of a halved pomegranate and a halved apple. Ibid. This is already illegal. They've violated the size and placement requirements for those disclosures, which are supposed to be larger and immediately under the product name. This sort of violation happens a lot(FDA doesn't have the funding to pursue people until folks start dying), but it's still the law, and it still deals with the confusion at issue. If a complaint were brought along these lines, Coca-Cola would clean up their labels, customers would get clearer dislaimer language, and things would continue to function. POM ignores this, and is instead trying to get the FTC involved under Lanham. Why? Because it gets the Court to overturn this: quote:The Government disagrees with both Coca-Cola and POM. It submits that a Lanham Act claim is precluded "to the extent the FDCA or FDA regulations specifically require or authorize the challenged aspects of [the] label." Brief for United States as Amicus Curiae 11. Applying that standard, the Government argues that POM may not bring a Lanham Act challenge to the name of Coca-Cola's product, but that other aspects of the label may be challenged. That is because, the Government argues, the FDA regulations specifically authorize the names of juice blends but not the other aspects of the label that are at issue. I like this position, because the FDA already has a remit on customer confusion for the associated label elements, and it preserves a role for the FTC outside the scope of FDA regulation. By overturning this longstanding practice by the agencies, POM is able to set the FTC against FDA regs and put the two organizations in conflict where it wants tighter or looser application of the labeling law. This is going to have the effect of damaging the actually quite good front-of-label requirements that FDA promulgates. ayn rand hand job posted:And why it passes FDA muster is because it 1) only calls itself juice in the ingredient statement, 2) shows the entirety of the fruit makeup of the juice in a pictorial format (just not in proportion), 3) and no one drinks pomegranate/blueberry juice for its color or consistency Dude, please don't imply I'm arguing in bad faith here. Even if this were legal under FDA regs (and I don't think it is for the reasons stated above), this is a poor place for the FTC to get involved. Discendo Vox fucked around with this message at 22:46 on Jun 12, 2014 |
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Jun 12, 2014 22:38
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evilweasel posted:I disagree, because as a practical matter we know that large amounts of people were mislead. That's what I'm getting at: I don't like this presumption that the information was disclosed, therefore it's not misleading. I have no problem with Coke arguing that based on the totality of the label it was not misleading and the mandated disclosures are a large part of that: I have a problem with the presumption that because the mandated disclosures were there it is not misleading. "From concentrate with added ingredients and other natural flavors." I just have to say I worry about the precedent this sets in general. The idea that following the entire letter of mandatory disclosure and labeling laws is no longer a sufficient defense against deceptive practices, which can be claimed by a capricious competitor still reeling from being told they cannot engage in their own actual deceptive marketing...what the gently caress is the point of regulation if you don't know how much farther you have to go to actually be OK? EDIT: Need it be reiterated, as Vox seems to have implied, that Pom is probably using this as part of a strategy to make a judicial challenge to the regulations that keep them from being allowed to make baseless claims about the health benefits of their products? And holy gently caress if that happens we're back to patent medicine. Kugyou no Tenshi fucked around with this message at 22:41 on Jun 12, 2014 |
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Jun 12, 2014 22:38
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The label says "pomegranate blueberry flavored blend of 5 juices." Is it pomegranate blueberry flavored? Does it have five juices? Then it isn't deceptive.
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Jun 12, 2014 22:44
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Kalman posted:The label says "pomegranate blueberry flavored blend of 5 juices." Arguably two of those juices were in negligible quantities though.
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Jun 12, 2014 22:48
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Kugyou no Tenshi posted:I just have to say I worry about the precedent this sets in general. The idea that following the entire letter of mandatory disclosure and labeling laws is no longer a sufficient defense against deceptive practices... Uh, maybe by not trying to deceive anyone? I mean, come on, it's not like Coke was trying to act in good faith here and the court is arbitrarily slapping them down over size 14 vs size 14.5 font or something. Remember this is the same company who defended labelling enriched sugar water as a health drink with "it's not deceptive because looking at the amount of sugar should tip anyone off that we're full of poo poo, so it can't be fraud if we're obviously lying our asses off"
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Jun 12, 2014 22:49
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Kugyou no Tenshi posted:EDIT: Need it be reiterated, as Vox seems to have implied, that Pom is probably using this as part of a strategy to make a judicial challenge to the regulations that keep them from being allowed to make baseless claims about the health benefits of their products? And holy gently caress if that happens we're back to patent medicine. They got shut down on that one iirc, but they'll find another way to bring it up, or try something equally underhanded. This line of tactics is partially built on a sort of "pomegranate essentialism", that other products are falsely implying that they have greater quantities of their magical life-extending, death-cheating fruit. (life-extending and death-cheating both phrases used by POM in prior marketing). They are particularly known for running, then promoting, internal studies that have shown pomegranate basically cures everything. This led to a challenge to the two RCT rule, I'm not quite sure how that wound up. VitalSigns posted:Uh, maybe by not trying to deceive anyone? I mean, come on, it's not like Coke was trying to act in good faith here and the court is arbitrarily slapping them down over size 14 vs size 14.5 font or something. In this case, Coke was acting in good faith. The thing POM is attacking is the normal practice of most blended juice product manufacturers, because the word "flavored" is normally read to mean (and legally implies) "tastes like". There are other regs on disclosing whether or not there is any of the flavor substance in the product. What POM's done is the classic anti-regulatory move- "hey, look, these wacky technical administrative regs that you've never heard of before are leading to a result you think is counterintuitive! Let's axe 'em and get to something that's plain and clear that everyone can understand!" vvvv Ayn Rand Hand Job, I'm having trouble getting a good read on this from the regs, but doesn't having the word "Juices" on the front of label mean that it's violating the first of those three? Discendo Vox fucked around with this message at 22:58 on Jun 12, 2014 |
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Jun 12, 2014 22:51
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computer parts posted:Arguably two of those juices were in negligible quantities though. quote:(c) If a beverage contains minor amounts of juice for flavoring and is labeled with a flavor description using terms such as "flavor", "flavored", or "flavoring" with a fruit or vegetable name and does not bear: bears "flavor" check only in ingredient statement check doesn't hide the other fruits in the blend check has no pulp check is a violation? no
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Jun 12, 2014 22:52
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Kugyou no Tenshi posted:I just have to say I worry about the precedent this sets in general. The idea that following the entire letter of mandatory disclosure and labeling laws is no longer a sufficient defense against deceptive practices, which can be claimed by a capricious competitor still reeling from being told they cannot engage in their own actual deceptive marketing...what the gently caress is the point of regulation if you don't know how much farther you have to go to actually be OK? To not have deceptive practices? I mean, there's a lot of value in clear bright-line rules to mark off where is clearly legal or clearly not legal. But there's always going to be areas where the rules aren't good enough or specific enough and I don't agree those have to be legal: that deceptive marketing is banned is the sort of standard that is extremely good for covering attempts to end-run around regulations. Discendo Vox posted:In this case, Coke was acting in good faith. The thing POM is attacking is the normal practice of most blended juice product manufacturers, because the word "flavored" is normally read to mean (and legally implies) "tastes like". I agree it was probably acting in good faith in the sense that it believed its conduct was strictly legal, and that should be taken into account if they are actually found to have been deceptive and there are damages. I don't think it was acting in good faith in the sense that they weren't trying to have one over on anyone. Just because a thing is the normal practice of an industry doesn't at all mean it should continue. evilweasel fucked around with this message at 22:59 on Jun 12, 2014 |
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Jun 12, 2014 22:57
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ayn rand hand job posted:
It says "Fruit Juice Blend" on the front, how is that not "on the label outside of the ingredients statement"? quote:
That requirement wasn't hiding "other fruits in the blend" it's "showing off that particular fruit".
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Jun 12, 2014 22:57
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computer parts posted:Arguably two of those juices were in negligible quantities though. And? Does it taste negligibly like pomegranate and blueberry?
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Jun 12, 2014 23:02
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Kalman posted:And? Does it taste negligibly like pomegranate and blueberry? Yeah, it's looking like the flavor versus constituent thing is the source of a lot of differences in viewpoint on this.
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Jun 12, 2014 23:03
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VitalSigns posted:Uh, maybe by not trying to deceive anyone? I mean, come on, it's not like Coke was trying to act in good faith here and the court is arbitrarily slapping them down over size 14 vs size 14.5 font or something. The label has not been ruled deceptive yet. The ruling is not on the label itself. The only thing that the court said is that Pom (godawful assholes that they are) can attempt to prove that the label is deceptive in court and that Coke cannot use "well we followed FDA rules" as an absolute defense against that claim. Proving that labeling and marketing is deceptive is pretty darn hard because people expect some level of puffery and exaggeration. It will be very interesting to see what comes out in discovery and open court however because I think it is highly likely that Coke intentionally made the label design imply it was filled with pomegranate and blueberries, and there is likely a goldmine paper trail there.
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Jun 12, 2014 23:03
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Discendo Vox posted:This is already illegal. They've violated the size and placement requirements for those disclosures, which are supposed to be larger and immediately under the product name. This sort of violation happens a lot(FDA doesn't have the funding to pursue people until folks start dying), but it's still the law, and it still deals with the confusion at issue. If a complaint were brought along these lines, Coca-Cola would clean up their labels, customers would get clearer dislaimer language, and things would continue to function. POM ignores this, and is instead trying to get the FTC involved under Lanham. Why? Because it gets the Court to overturn this: I'd rather have a legal framework where coke could be actually punished for what they did here. It seems the FDA regs aren't enforceable by private parties the way the Lanham Act is -- perhaps that should change.
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Jun 12, 2014 23:06
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computer parts posted:It says "Fruit Juice Blend" on the front, how is that not "on the label outside of the ingredients statement"?  Congratulations, it states FRUIT JUICE BLEND in the ingredients statement. (And not list, that's a separate item). computer parts posted:That requirement wasn't hiding "other fruits in the blend" it's "showing off that particular fruit". No, that's pretty much wrong. It's to prevent just showing the fruits giving the flavor, while also hiding the other constituent fruit juices.
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Jun 12, 2014 23:07
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Discendo Vox posted:Yeah, it's looking like the flavor versus constituent thing is the source of a lot of differences in viewpoint on this. Right, what is the appropriate way to label something like this? It's technically juice, presumably does taste like those flavors, what should it be called to make it clear to consumers?
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Jun 12, 2014 23:10
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ayn rand hand job posted:
You, um, seem to be quoting an EPA pesticide labeling reg. Again, I'm having trouble finding a clear definition for ingredient statement under FDA, which is why I'm on the fence about that part, but from what I can find in other regs language, it seems to be used as a synonym for the ingredients list. Xandu posted:Right, what is the appropriate way to label something like this? It's technically juice, presumably does taste like those flavors, what should it be called to make it clear to consumers? Well, I'm out of practice on food labeling regs, and I think there are other violations on the image we're all discussing, but give me a minute and I'll mock up what I think would be sufficiently clear, and coincidentally, legal. Behold, my lousy MSPaint skillz:  I've gotten rid of the problematic "enhanced juice" statement, resized the disclosures (Paint needs a zoom-enhance feature) and moved things, since I think there's also an intervening material issue on the order in which the elements were presented. I'm not positive about a part of the boldface requirement, either, but that's less important than the sizing. If it were up to me, those structure function claims would be gone, too. I don't have any problem with the flavor-constituent distinction, because it's explicitly stated and intuitive. People who care about the content of their fruit juice versus the taste have all of the information they need from reading the label. There's no meaningful health benefit conveyed by having more of one juice over another that can't be stated in a meaningful, regulated way on labeling if the company wants to do so. Overspecifying content regs can have the effect of implying a benefit where none exists- this is one of the big problems with organic labeling, because it functions as cipher for multiple health or externality-reducing benefits, most of them spurious. ShadowHawk posted:I'm a bit confused as to how we can say we have regulations when the standard for FDA enforcement seems to be limited to literal people dying? This is why I'd like to see the FDA budget roughly octupled. It's probably one of the most starved federal agencies- this sort of failure to enforce is actually the least depressing example of regulatory triage the FDA has had to perform. That said, if you sent in a well-presented complaint, they'd probably pursue it. The usual pattern from FDA is to first send a warning letter, which is nine times out of ten enough to get a change in the violative product. It sounds trivial, but a warning letter is Serious Business for all involved- it's basically the first step in setting up a seizure action, for example. Discendo Vox fucked around with this message at 23:35 on Jun 12, 2014 |
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Jun 12, 2014 23:14
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Discendo Vox posted:In this case, Coke was acting in good faith. The thing POM is attacking is the normal practice of most blended juice product manufacturers, because the word "flavored" is normally read to mean (and legally implies) "tastes like". There are other regs on disclosing whether or not there is any of the flavor substance in the product. What POM's done is the classic anti-regulatory move- "hey, look, these wacky technical administrative regs that you've never heard of before are leading to a result you think is counterintuitive! Let's axe 'em and get to something that's plain and clear that everyone can understand!" A couple issues. First, whether its the normal practice of blended juice product manufacturers shouldn't be relevant, because the party being subjected to potential deception is not other blended juice product manufacturers. When trade terms are used to market products to parties outside of the trade, the ordinary meaning trumps the trade usage. The Supreme Court addressed this in 1922 in Federal Trade Comm'n v. Winsted Hosiery, holding that using the term "merino" (and other similar terms) to market partially non-wool underwear to consumers was deceptive, even though the industry understood the term to include both pure wool and partial wool products. Unless the trade usage has become so well established as to be understood by consumers, it cannot substitute for ordinary meaning. Second (and this is directed generally, not specifically at Vox) the Supreme Court decision wasn't about whether the label actually violated the Lanham Act. The issue was whether a competitor could sue for false advertising under the Lanham Act when the label satisfied FDA requirements. I don't see any good reason for the court to bar such suits absent an express legislative directive. This is a straight question of statutory interpretation, and unless two statutes are literally irreconcilable I don't think the Court should substitute its judgment for the judgment of Congress. If Congress doesn't want to allow these suits, it can amend either act to expressly preclude application of the Lanham act to areas covered by the FDA.
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Jun 12, 2014 23:35
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You're likely entirely right, I don't know that much about FTC. It's very worrisome, then, because my understanding is that there's effectively been a gentlemen's agreement between FTC and FDA in most areas, FTC's position being "we're not the people spending millions of dollars on labeling design research and laboratory testing-you guys should handle this, we'll gently caress it up". The FTC's been brought up by anti-dietary supplement groups as an avenue for stopping abusive structure function claims, but that's because FDA's hands are tied in that area. The prospect of industry using Lanham as a means to relitigate the interpretation or boundaries of FDA regs for competitive purposes is really scary. I think that the normal understanding of flavor and juices was the basis for the FDA's rule design in this area, though I'm not remotely certain. I wasn't exaggerating about the lab studies, though- FDA will likely have an evidentiary basis for consumer understanding of the terms in a commercial context. That said, the concentration of industry action in the area could make the standard a problematic one, depending on its outer edges- in the food world, industry is known for trying to force a new public understanding of the meaning of terms in order to evade regulation, making use of sophisticated and very expansive marketing pushes (a bit like the creation of the term "sport utility vehicle"). Lemme just say I really appreciate this thread. I know I'm often in a minority position here, and I'm also often wrong- I'm very grateful that it never seems to get as rhetorical or violent as some other parts of Debate Disc-Oh god, I'm proving my custom avatar right. I mean it though, my thanks to all of you, especially the ones who think I'm totes wrong. Discendo Vox fucked around with this message at 23:48 on Jun 12, 2014 |
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Jun 12, 2014 23:41
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Discendo Vox posted:You, um, seem to be quoting an EPA pesticide labeling reg. Again, I'm having trouble finding a clear definition for ingredient statement under FDA, which is why I'm on the fence about that part, but from what I can find in other regs language, it seems to be used as a synonym for the ingredients list. Yeah, I was slightly wrong. It isn't exempted under c, it is under b, because it states that it's 100% juice, and then doesn't list the % of constituent juices, because that is an entirely optional thing to label. It's what I get for posting under a bitcoin induced schadenfreudgasm. OJ MIST 2 THE DICK fucked around with this message at 23:56 on Jun 12, 2014 |
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Jun 12, 2014 23:49
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ayn rand hand job posted:bears "flavor" check Maybe I missed the part where we all ignored today's ruling, but the Supreme Court clearly said product labels need to comply with those regulations and also not be misleading under the Lanham act. As a consumer rather than marketer of juice containing products I think making the standard of deceptive something other than "whatever you can convince the FDA is ok" is a good thing for me. I'd be curious if anyone has a reasonable argument otherwise.
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Jun 13, 2014 00:02
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KernelSlanders posted:Maybe I missed the part where we all ignored today's ruling, but the Supreme Court clearly said product labels need to comply with those regulations and also not be misleading under the Lanham act. As a consumer rather than marketer of juice containing products I think making the standard of deceptive something other than "whatever you can convince the FDA is ok" is a good thing for me. I'd be curious if anyone has a reasonable argument otherwise. I don't disagree otherwise. I disagree with Vox's case that it's already illegal under existing FDA regulations. (And in cases like this, you need to combat false advertising with the Lanham act)
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Jun 13, 2014 00:06
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Discendo Vox posted:You're likely entirely right, I don't know that much about FTC. It's very worrisome, then, because my understanding is that there's effectively been a gentlemen's agreement between FTC and FDA in most areas, FTC's position being "we're not the people spending millions of dollars on labeling design research and laboratory testing-you guys should handle this, we'll gently caress it up". The FTC's been brought up by anti-dietary supplement groups as an avenue for stopping abusive structure function claims, but that's because FDA's hands are tied in that area. The prospect of industry using Lanham as a means to relitigate the interpretation or boundaries of FDA regs for competitive purposes is really scary. I honestly have mixed feelings about Lanham Act claims based on consumer deception that don't have a connection to brand or trademark dilution. I understand why the actions exist, but I tend to think that consumer deception should be prosecuted by agencies whose primary job is to protect consumers (or by consumers themselves, whose primary job is to make sure class action attorneys get money). I am naturally skeptical of consumer deception claims brought by parties whose main interest is in securing a competitive advantage, and whose interest in consumer protection is merely incidental. It's different when there's actual trademark or brand dilution occurring. Coca-Cola obviously should be able to bring suit against the Gay-Ola Company for deceptively marketing its product as Coca-Cola (as considered in the honestly not made up case of Coca-Cola Co. v. Gay-Ola Co.).
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Jun 13, 2014 00:13
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KernelSlanders posted:Maybe I missed the part where we all ignored today's ruling, but the Supreme Court clearly said product labels need to comply with those regulations and also not be misleading under the Lanham act. As a consumer rather than marketer of juice containing products I think making the standard of deceptive something other than "whatever you can convince the FDA is ok" is a good thing for me. I'd be curious if anyone has a reasonable argument otherwise. It indirectly weakens the concept of field preemption, which is useful in a lot of things and in particular for preventing lovely state laws from loving up federal regulatory schemes.
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Jun 13, 2014 00:18
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Kalman posted:It indirectly weakens the concept of field preemption, which is useful in a lot of things and in particular for preventing lovely state laws from loving up federal regulatory schemes. It's not a preemption case, its a preclusion case. There are different considerations that apply when considering whether Congress has preempted state law (a supremacy question) and whether Congress has precluded application of other federal statutes (a question of silent repeal of a statute). Maybe that's what you meant by "indirectly" though, because some of the considerations overlap. In any case, I believe the FDA Act expressly preempts state labeling standards that are not identical to the federal standards. VV Fair enough. VV Not My Leg fucked around with this message at 00:43 on Jun 13, 2014 |
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Jun 13, 2014 00:30
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Yes, that is why I said "indirectly."
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Jun 13, 2014 00:31
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The FDA's amicus brief describes, IIRC, the rule-making process that led to the current labeling requirements, and outlines their position that consumer expectation of flavour should motivate primary labeling. I'd link, but I'm on my phone. I found it pretty interesting, and it hardly seems like "ingredient that dominates flavour but is small fraction of volume" was an unanticipated scenario.
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Jun 13, 2014 00:39
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Kalman posted:It indirectly weakens the concept of field preemption, which is useful in a lot of things and in particular for preventing lovely state laws from loving up federal regulatory schemes. They were very clear: Supreme Court posted:First, this is not a pre-emption case, for it does not raise the question of whether state law is pre-empted by federal law ... but instead concerns the alleged preclusion of a cause of action under one federal statute by the provisions of another federal statute. I can't see how, with that strong a warning, the opinion can be held to have any precedence on preemption standards. e: ^^ slow posting -- multi-tasking. Still it's hard to see how this changes preemption law when the Court says it doesn't. KernelSlanders fucked around with this message at 00:46 on Jun 13, 2014 |
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Jun 13, 2014 00:43
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KernelSlanders posted:Maybe I missed the part where we all ignored today's ruling, but the Supreme Court clearly said product labels need to comply with those regulations and also not be misleading under the Lanham act. As a consumer rather than marketer of juice containing products I think making the standard of deceptive something other than "whatever you can convince the FDA is ok" is a good thing for me. I'd be curious if anyone has a reasonable argument otherwise. The FDA (especially the food division) is one of the best regulatory agencies in terms of avoiding regulatory capture. This is mostly because their mandate is entirely consumer protection oriented, unlkike, for example, the USDA (this is not the case in the tobacco products division, which is why the FDA hates that they were assigned it in this way). Additionally, they've historically written regs at relatively low levels of the organization that recruit directly from the sciences, with minimal industry player involvement. That aside, the FDA bases their labeling rulemaking on research on what consumers think packaging describes, and on what information is actually important in terms of safe use of the product-they're actually going to be better equipped to identify the elements of misleading labeling than anyone else, because the labeling for FDA-regulated products has been highly determined for an extended period of time(DS and Tobacco aside). The difficulty with this ruling is that it seems to be setting the stage for industry to attack FDA regs via FTC claims- so it's less about convincing the FDA to pass regs than it is using Lanham as a cudgel to "adjust market scope"- meaning remove the competition. That's exactly what POM is trying to do with this case. Discendo Vox fucked around with this message at 01:10 on Jun 13, 2014 |
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Jun 13, 2014 00:59
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KernelSlanders posted:They were very clear: Dicta! Both preemption and preclusion rely on interpreting Congressional intent to override other law - either preemption (we're legislating here, everyone else stay out) or preclusion (this law is intended to override an older law). To the extent the Court's logic says that Congress didn't really mean to prevent Lanham Act claims from being brought even though the label is FDA Act compliant, that same logic is going to be applied by plaintiffs trying to bring state law claims that would be otherwise preempted. Yeah, the Court said "this is not a preemption case" but ultimately preemption and preclusion rest on the same evaluation of whether Congress wanted to keep other legislation from affecting what they passed or not.
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Jun 13, 2014 01:08
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Kalman posted:Dicta! Not in this case though, because the act considered in this case expressly preempts state regulations that are not identical to the federal regulations. The fact that the Court did not find implied preclusion won't impact the express preemption analysis. Discendo Vox posted:The difficulty with this ruling is that it seems to be setting the stage for industry to attack FDA regs via FTC claims- so it's less about convincing the FDA to pass regs than it is using Lanham as a cudgel to "adjust market scope"- meaning remove the competition. That's exactly what POM is trying to do with this case. Just a slight correction. Lanham Act claims are not FTC claims. The FTC's authority under the Lanham Act is limited (I think its only power is applying to invalidate certain trademarks) and the act is almost entirely dependent on private enforcement. The FTC Act, on the other hand, is enforced exclusively by the FTC - no private right of action exists at all. So it's not really accurate to say that industry will use FTC claims to attack FDA regulations, they'll use Lanham Act claims.
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Jun 13, 2014 01:48
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Discendo Vox posted:The FDA (especially the food division) is one of the best regulatory agencies in terms of avoiding regulatory capture. This is mostly because their mandate is entirely consumer protection oriented, unlkike, for example, the USDA (this is not the case in the tobacco products division, which is why the FDA hates that they were assigned it in this way). Additionally, they've historically written regs at relatively low levels of the organization that recruit directly from the sciences, with minimal industry player involvement. That aside, the FDA bases their labeling rulemaking on research on what consumers think packaging describes, and on what information is actually important in terms of safe use of the product-they're actually going to be better equipped to identify the elements of misleading labeling than anyone else, because the labeling for FDA-regulated products has been highly determined for an extended period of time(DS and Tobacco aside). The difficulty with this ruling is that it seems to be setting the stage for industry to attack FDA regs via FTC claims- so it's less about convincing the FDA to pass regs than it is using Lanham as a cudgel to "adjust market scope"- meaning remove the competition. That's exactly what POM is trying to do with this case. POM has made many dubious health claims that have resulted in a few well deserved regulatory actions against them. Nonetheless, I view the cleanness of POM's hands in this particular case not terribly relevant to the issue of whether juice is exempt from the Lanham act. While I agree that the FDA is one of the regulatory agencies with a clearer mandate, I don't necessarily agree that consumer protection is their only objective, generally. They often engage in analyses weighing potential harms vs. potential benefits such as in their humanitarian device exemption or their orphan drug program. That said, I agree with both those programs, and I think the FDA generally does a good job. That said, as you point out, their regulatory mandate is consumer safety. Since public health isn't threatened by people drinking apple juice instead of blueberry juice (since both are safe) the FDA may be fine with labeling that is nonetheless misleading to consumers. I don't happen to think that "consumers on't believe labels" is a good justification for calling something Minute Maid Pomegranate Blueberry when they mean flavored apple and/or grape juice -- whichever happens to be cheaper that day. I simply fail to see (and I'm happy to accept that it might be lack of imagination) how the public interest is harmed by calling it apple-grape juice with natural pomegranate flavor.
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Jun 13, 2014 02:28
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