Judge upholds F.T.C. complaints on POM claims

by Jeff Gelski
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WASHINGTON – D. Michael Chappell, a chief administrative law judge, on May 21 upheld a Federal Trade Commission complaint that certain POM Wonderful advertisements made deceptive claims. The F.T.C. also sought a Food and Drug Administration pre-approval requirement for future POM Wonderful claims, but the judge denied it.

The judge ruled that POM Wonderful, L.L.C., its sister corporation Roll Global, L.L.C. and principals Stewart Resnick, Lynda Resnick and Matthew Tupper violated federal law by making deceptive claims in some advertisements for POM Wonderful 100% pomegranate juice and POMx supplements. The claims said the products would treat, prevent or reduce the risk of heart disease, prostate cancer and erectile dysfunction.

According to the judge’s decision, evidence demonstrated reasonable consumers would interpret the advertisements as claiming that drinking 8 oz of POM juice daily, taking one POMx pill daily and/or taking 1 teaspoon of POMx liquid daily treats, prevents or reduces the risk of heart disease, prostate cancer and/or erectile dysfunction, and is proven clinically to do so. However, testimony demonstrated insufficient scientific evidence exists to support the claims.

The F.T.C. also wanted to prohibit POM from making any claim that any POM product “is effective in the diagnosis, cure, mitigation, treatment or prevention of any disease, including, but not limited to, any representation that the product will treat, prevent or reduce the risk of” heart disease, prostate cancer or erectile dysfunction unless the claim received prior approval from the F.D.A. The judge said he found the pre-approval requirement overreaching. He instead required POM to adhere to the standard of competent and reliable scientific evidence by requiring the company to possess evidence to substantiate disease claims and more generalized claims about the health benefits, performance and efficacy of their products.

POM Wonderful said the judge’s ruling gives the company a right to share scientifically validated information about the health benefits of its products with consumers.

“Through its lawsuit against POM, the F.T.C. tried to create a new, stricter industry standard, similar to that required for pharmaceuticals, for marketing the health benefits inherent in safe food and natural food-based products,” said Craig Cooper, chief legal officer for POM Wonderful, L.L.C. “They failed. While were are still analyzing the ruling, it is clear that we will be able to continue to promote the health benefits of our safe food products without having our advertisements, marketing or public relations efforts pre-approved by the F.D.A. and without having to rely on double-blind, randomized, placebo-controlled studies, the standard required for pharmaceuticals. We consider this not only to be a huge win for us, but for the natural food products industry.”

Roll Global, POM Wonderful’s sister company, said it disagreed with the judge’s ruling that some of the advertisements were misleading, but the company will make appropriate adjustments if necessary.

POM Wonderful has said that since 1996 it has invested more than $35 million to support scientific research on its pomegranate products at 44 universities and scientific centers. More than 70 studies have been published in peer-reviewed journals.

The judge’s decision is subject to review by the F.T.C. on its own motion or at the request of any party. The judge’s decision will become the decision of the F.T.C. 30 days after it is served upon the parties, unless a party files a notice of appeal.

The F.T.C. originally filed its complaint against POM Wonderful advertisements in September of 2010. The advertisements appeared in national publications, Internet sites, billboards, newsletters and tags attached to products.

The complaint said many of the company’s scientific studies failed to show benefits from using POM products for treating or preventing heart disease; the study relied upon for prostate cancer claims was neither blinded nor controlled; and the study relied upon for erectile dysfunction claims failed to show POM juice was any more effective than a placebo.

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