Antitrust Law Daily Wrap Up, TOP STORY—FTC: POM Wonderful Deceptively Advertised Pomegranate Products by Making Unsupported Health Claims, (Jan 16, 2013)

By William Zale, J.D.

The FTC today upheld an administrative law judge’s decision that the marketers of POM Wonderful 100% Pomegranate Juice and POMx supplements deceptively advertised their products (In the Matter of POM Wonderful LLC, FTC File No. 082-3122, Docket No. 9344). POM did not have adequate support for claims that the products could treat, prevent, or reduce the risk of heart disease, prostate cancer, and erectile dysfunction, and that they were clinically proven to work, according to the Commission.

The Commission Opinion found that the POM marketers made deceptive claims in 36 advertisements and promotional materials challenged at trial going beyond Judge D. Michael Chappell’s ruling, which found false or deceptive claims in only 19 of the challenged items. The Commission rejected the POM respondents’ arguments that the Commission’s actions would violate their First Amendment rights, or their Fifth Amendment right to due process.

The Commission’s Final Order bars the POM marketers from making any claim that a food, drug, or dietary supplement is “effective in the diagnosis, cure, mitigation, treatment, or prevention of any disease,” including heart disease, prostate cancer, and erectile dysfunction, unless the claim is supported by two randomized, well-controlled, human clinical trials. The Order also prohibits misrepresentations regarding any test, study, or research, and requires competent and reliable scientific evidence to support claims about the “health benefits, performance, or efficacy” of any food, drug, or dietary supplement.

In upholding Judge Chappell’s Initial Decision and issuing its Opinion and Final Order, the Commission denied the appeal filed by POM Wonderful, LLC, Roll Global LLC, Stewart Resnick, Lynda Resnick, and Matthew Tupper. The Commission also granted in part and denied in part an appeal filed by the FTC staff.

The challenged ads appeared in national publications such as Parade, Fitness, The New York Times, and Prevention magazines; on Internet sites such as pomegranatetruth.com, pomwonderful.com, and pompills.com; on bus stops and billboards; in newsletters to customers; and on tags attached to the product.

The Commission vote approving the Opinion and Final Order was 5-0. In addition to writing the Commission’s opinion, Commissioner Maureen K. Ohlhausen explained in a concurring statement that she would require extrinsic evidence to conclude that some of the exhibits conveyed the challenged disease-related claims rather than general health benefit claims and that she would have required only one randomized clinical trial regarding disease-related claims as fencing-in relief in the final order. Commissioner J. Thomas Rosch also filed a concurring statement.

The Respondents may file a petition for review of the Commission Opinion and Final Order with the U.S. Circuit Court of Appeals within 60 days after service of the Final Order.

Companies: POM Wonderful, LLC; Roll Global LLC.

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