Trademark Considerations In Food Labeling and Marketing

Food labeling and advertising is governed by a complicated regulatory framework involving multiple federal agencies. As consumers continue to demand more transparency and information regarding food sources and attributes, food companies must consider the interconnected nature of its messaging and marketing claims with this complex regulatory scheme, while also taking into account trademark and unfair competition issues under the Lanham Act. 

Nearly nine years ago, the United States Supreme Court held in POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102 (2014), that the Federal Food, Drug, and Cosmetic Act (FDCA) does not preclude suits under Section 43 of the Lanham Act, which allows a competitor to sue another for unfair competition arising from false or misleading product descriptions. The interplay between the FDCA and Lanham Act is obvious, with both statutes targeting false or misleading labeling. The FDCA is intended to protect consumer safety, and while a consumer cannot bring an unfair competition claim under the Lanham Act, consumers ultimately benefit from legitimate claims for misleading advertising or labeling of food and beverages. In POM Wonderful, following remand, a jury found in favor of Coca-Cola on POM Wonderful’s Lanham Act claim, determining that the Minute Maid “pomegranate blueberry” juice label was neither false nor misleading despite the product containing just 0.3% pomegranate juice and 0.2% blueberry juice. Thus, while it is now settled that FDCA-compliant labeling does not explicitly preclude Lanham Act claims, in practice, compliance with the FDCA is persuasive evidence that a label is not false or misleading and has been used to defeat Lanham Act claims in certain situations. 

The intersection of the FDCA and the Lanham Act was again on display in a recent decision, Interprofession du Gruyere v. U.S. Dairy Export Council, 61 F.4th 407 (4th Cir. 2023), concerning registration of “GRUYERE” as a certification mark. [1] That case shows how the FDCA can impact consumer awareness and the analysis of trademarks. Unlike the protected designation of origin and protected geographical indication status of “Gruyere” in Switzerland and France, respectively, the FDA’s regulatory standard of identity requirements for “Gruyere cheese” does not impose any geographical restrictions as to where gruyere cheese can be produced. Two European cheesemaking consortiums sought to register the “GRUYERE” certification mark, and the Trademark Trial and Appeal Board, the U.S. District Court for the Eastern District of Virginia, and the Fourth Circuit Court of Appeals all concluded that the term GRUYERE was generic. Consumers may not be aware of specific FDA regulations, but those regulations affect the food label and ultimately what consumers see on food labels and advertising. FDA standards of identity are not conclusive evidence of genericness, yet they are relevant to the overall analysis. 

These cases are just two illustrations of how the FDCA and Lanham Act intersect as they relate to food and beverage labels, and this interaction should be considered as part of a company’s overall food labeling and marketing strategy. 

Amy Berg is a partner in Ice Miller’s Intellectual Property Group and a member of the firm's Food and Agribusiness Group.

[1] A certification mark means any word, name, symbol, or device, or any combination thereof (1) used by a person other than its owner, or (2) which its owner has a bona fide intention to permit a person other than the owner to use in commerce and files an application to register . . . , to certify regional or other origin, material, mode of manufacture, quality, accuracy, or other characteristics of such person’s goods or services or that the work or labor on the goods or services was performed by members of a union or other organization.” 15 U.S.C. § 1127

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.