As much as we want to be unabashed defenders of the food & beverage industry and all that it does, every once in a while somebody – usually some pinhead in marketing – puts out something that makes us say, “Now, wait a minute…”
Right now, the U.S. Supreme Court is weighing a case in which Pom Wonderful – a past defendant in marketing-related court cases but in this case the protagonist -- has sued Coca-Cola claiming that 0.3 percent pomegranate juice, 0.2 percent blueberry juice and 0.1 percent raspberry juice (versus 99 percent apple and grape juices, which are cheaper) does not make for a "Pomegranate Blueberry Flavored Blend of 5 Juices” (see our story: Pom Wonderful, Coca-Cola at the Supreme Court).
And on Feb. 24, the National Advertising Div. of the Better Business Bureau closed a year-old complaint against Hershey Co. that its Brookside chocolates don't contain a shred of the acai, goji or pomegranate fruits promoted on former packaging.
I'm reasonably astute in the ways of food, I read labels pretty carefully and I'm a bit of a skeptic, but the packaging had me fooled. Last year I bought many packages of the "healthy" candies on the presumption that they contained acai, goji or pomegranate. Those were the words most prominent on the packages. Nowhere did I see "-flavored," even in tiny type. But that's all it was -- acai, goji or pomegranate flavors, some of it from those juices – with the fruity centers provided by pectin.
This year's new packaging fairly puts the words "Dark Chocolate" first and foremost and qualifies the variety to "pomegranate flavor," etc.
That's the domain of the Better Business Bureau and its Advertising Self-Regulatory Council. And by the way, it was Mars that filed the complaint. But the Supreme Court hearing a squabble between food companies? That may be a first.
Brookside's Old Packaging
Brookside's Updated Packaging
While it's usually challenged to settle some constitutional interpretation with far-reaching implications or a landmark ruling on life and death, the Supreme Court surprisingly agreed to hear Pom Wonderful's complaint against Coca-Cola. I think the court's interest primarily is based on whether one company can sue another over a dispute that might best be settled by a federal agency (in this case, the FDA) –as a lower appellate court said. Or when federal laws and the uniformity of federal regulations can pre-empt state laws.
Now, Pom and its owners are not always so wonderful. On May 2, they were making a case to an appeals court that the Federal Trade Commission had overstepped its bounds when it determined the company's advertising was misleading. Pom, which has single-handedly created a market for pomegranates, had claimed pomegranate juice had been clinically proven to reduce the risk of heart disease, prostate cancer and other ailments.
The FTC demanded Pom produce two randomized, controlled clinical trials if it wanted to make those claims. Pom did not.
The Hershey-Brookfield matter appears to be settled with the arrival of new packaging. Pom's cases before the Supreme Court and the appellate court are still hung up.
But the most important court of all, the court of public opinion, will not take these infractions lightly. This is food, after all, not thigh-masters or pocket hoses. Reducing food science and nutrition to the level of late-night infomercials will harm the entire food & beverage industry. Consumers these days are finding enough fault with the food industry, often unjustifiably. Don’t give them a good reason to be critical.
The food industry is capable of – and obligated to do – much better.
