Court Upholds FTC On POM Wonderful Decision
The Federal Trade Commission and a Federal Appeals Court are in agreement that POM Wonderful's marketing wasn't so wonderful, but has modified the FTC's complaint against the company to halve the number of outside studies needed to justify disease-related marketing claims.
The court found the FTC could require at least one randomized controlled trial (RTC), but not two.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled Friday that there was no basis for setting aside the Commissioner's conclusion that many of POM’s ads made misleading or false claims about POM products. It also said that "Contrary to petitioners’ contentions, the Commission had no obligation to adhere to notice-and-comment rulemaking procedures before imposing liability in its adjudicatory proceeding."
It affirmed the order to the degree that it requires POM to get at least one randomized controlled human trial, before claiming any causal connection between consumption and "the treatment or prevention of any disease." But, it said, "We find inadequate justification, however, for the Commission’s blanket requirement of at least two such studies as a precondition to any disease-related claim. In all other respects, we deny the petition for review."
“Today’s decision by the D.C. Circuit is a victory for consumers," said FTC chairwoman Edith Ramirez. "It is in keeping with established law that advertisers who market products for serious health conditions must have rigorous science to back up those claims. The court specifically recognized that this applies to food and dietary supplement marketers such as POM....The court did not uphold the FTC order requirement for two randomized well controlled human clinical trials by POM. However, the court did affirm the FTC’s order requiring POM to have at least one such study before making disease prevention or treatment claims and held out the possibility that two might be warranted in other cases."
In January 2013, the FTC voted to bar the makers of POM Wonderful juice and POMx supplements from making any advertising claims that its products have any impact on health unless they can back it up with scientific evidence.
The vote upheld a May decision by an administrative law judge at the agency who found that POM Wonderful and POMx ads were deceptive when they claimed the products could treat, prevent or reduce the risk of heart disease, prostate cancer, and ED.
In January 2014, the FTC confirmed that POM Wonderful supplement marketers had "deceptively advertised that the products could treat, prevent, or reduce the risk of heart disease, prostate cancer, and erectile dysfunction, and were clinically proven to have such benefits."
The court confirmed that clinical proof was necessary, just not as much proof as the FTC wanted.
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Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.