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Hanna: Super Case

With all the hype about campaign finance and affirmative action, I fear Vermonters missed a super-juicy case that involves super lawyers, super fruits, and the consumer’s right to know what they’re drinking.

Coca-Cola, which, incidentally, just bought a 1.3 Billion dollar stake in Green Mountain Coffee Roasters, is also in the juice business. It sells one labeled Minute Maid Pomegranate Blueberry Juice, except that 99% is something other than pomegranate and blueberries, amounting to about a teaspoon of these super fruits in a half-gallon container. That makes Coke’s product way less expensive than other juices with more than a splash of the advertised fruit.

Enter POM Wonderful, makers of 100% pomegranate juice. It claims that Coke’s label is misleading and deceptive to consumers.

Now, there’s not another state that cares more about food labeling than Vermont, but this case has a few more interesting connections to the Green Mountain state.

Because the lawyer who argued on behalf of Coke that the Food and Drug Administration’s approval of the label pre-empted POM Wonderful’s claim that Coke violated another consumer protection law was Kathleen Sullivan.

The same Kathleen Sullivan who successfully represented Vermont Yankee in its claim that federal law preempted state law it its attempts to shutter the nuclear power plant.

And in her argument on behalf of Coke last week, Sullivan frequently cited the Court’s decision in Wyeth v. Levine.

If you remember, that’s the case in which Diane Levine, a Vermont musician, successfully sued Wyeth for failing to properly warn that a drug it manufactured could cause serious complications if directly injected. Levine lost her arm even though she only sought treatment for a headache. Wyeth, like Coke, argued that that the FDA labeling preempted other laws to protect consumers.

Coincidentally, David Frederick was Diane Levine’s lawyer – the same David Frederick who represented the state of Vermont against Kathleen Sullivan in the Vermont Yankee appeal.

And Frederick’s opponent in Wyeth v. Levine just happened to be Seth Waxman, who is now representing POM Wonderful against Coca-cola.

In my absolute favorite exchange, Sullivan suggested that consumers are not as unintelligent as POM Wonderful must think they are, to which Justice Kennedy quipped back, “Don’t make me feel bad because I thought that this was pomegranate juice.”

This leads me to speculate that Kathleen Sullivan will suffer a rare defeat, Seth Waxman will be vindicated from his loss in Wyeth because he is no longer arguing that consumers should rely on the FDA to keep them informed, and consumers will have the right to sue over labels that are clearly designed to deceive even a Supreme Court Justice into thinking he’s sipping the juice of a super-fruit.

The late Cheryl Hanna was a professor at Vermont Law School in Royalton.
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