12 JUNE 2014

THE SUPREME COURT

OF THE U.S.

FDCA & LANHAM ACT SYNERGY OF PROTECTION

FDCA - Protects public health and safety; - Government is enforcement authority; - BUT government does not know the market.

Lanham Act - Protects competition on case-by-case basis; - Companies can sue competitors for unfair competition even if rival’s product is OK with FDA regulations; - Competitors know how consumers react to rivals’ products.

Labeling lawyers can help clients to minimize risks and to control competitors.

THE SAME PRINCIPLE MAY APPLY TO OTHER PRODUCTS

POM V. COCA-COLA

LABELING RULES ARE ONLY “THE FLOOR” ON HOW PRODUCTS CAN BE MARKETED,

“THE CEILING” MAY BE DEFINED BY COMPETITOR

HIGH PRICE PRODUCT V. CHEAPER PRODUCT IS A MINUTE MAID LABEL DECEPTIVE AND MISLEADING ?

100%

100% pomergranate

0.1%0.2%0.3%

99.4%

99.4% apple&grape0.3% pomergranate0.2% blueberry0.1% raspberry

POM WONDERFUL

MINUTE MAID

Mark Opanasiuk Fulbright Graduate Student LLM Program in Agricultural & Food Law University of Arkansas School of Law

Kyiv, Ukraine Fayetteville, AR

email: mark.opanasiuk@gmail.com Photo credits: POM Wonderful and Minute Maid bottles: http://www.trendingtrademarks.com/; The Supreme Court photo: en.wikipedia.org; Fruits photos: http://evoomarketplace.com; http://www.holisticselect.com/; www.monadnockoilandvinegar.com; http://gloucesterstage.com; http://www.freegreatpicture.com; sweetfrog.com; iowagirleats.com; www.colourbox.com.