FTC v. POM Wonderful, Wonderful for its Lawyers, but How Good is POM for You?

Posted by | May 26, 2011 | General | 4 Comments

Yesterday, administrative law judge (ALJ), Michael Chappell heard arguments in a case that the FTC brought against POM Wonderful, its parent company, Roll International, and the three officers of the companies, “individually as officers of the companies.”  The case was commenced by the FTC last September to prevent POM from continuing to publish allegedly unsubstantiated marketing claims about the health benefits of POM Juice and other POM products (POM Wonderful, POMx Pills, POMx Liquid, POMx Tea, POMx Iced Coffee, POMx Bars, and POMx Shots — who knew there we so many POM products?!).

The FTC took particular exception with the following “health claims” made in POM’s advertising:

[framed_box]

SUPER HEALTH POWERS! . . . It’s Heroically Healthy! . . . Backed by $25 million in medical research.  Proven to fight for cardiovascular, prostate and erectile health . . .

I’M OFF TO SAVE PROSTATES!

(The list of claims goes on for 16(!) pages). [/framed_box]

Apparently, POM’s extensive touting of its products’ health benefits can be distilled down to 6 main “unsubstantiated representations:”

[framed_box]

A. Drinking eight ounces of POM Juice, or taking one POMx Pill or one teaspoon of POMx Liquid, daily, prevents or reduces the risk of heart disease, including by (1) decreasing arterial plaque, (2) lowering blood pressure, and/or (3) improving blood flow to the heart;

B. Drinking eight ounces of POM Juice, or taking one POMx Pill or one teaspoon of POMx Liquid, daily, treats heart disease, including by (1) decreasing arterial plaque, (2) lowering blood pressure, and/or (3) improving blood flow to the heart;

C. Drinking eight ounces of POM Juice, or taking one POMx Pill or one teaspoon of POMx Liquid, daily, prevents or reduces the risk of prostate cancer, including by prolonging PSADT;

D. Drinking eight ounces of POM Juice, or taking one POMx Pill or one teaspoon of POMx Liquid, daily, treats prostate cancer, including by prolonging PSADT;

E. Drinking eight ounces of POM Juice daily prevents or reduces the risk of erectile dysfunction; and

F. Drinking eight ounces of POM Juice daily treats erectile dysfunction.[/framed_box]

POM’s Answer generally denies the allegations and states that the FTC lacks the authority to impose the relief it seeks (which is painstakingly extensive — taking up four full pages!).  The FTC’s proposed order would not terminate for twenty years from the date of its issuance, were the ALJ to approve it.  As if American’s won’t be on to the next super-cure in less than a year!

POM’s preliminary witness list contains 9 pages of employees, former employees, physicians and professors, and its expert witness list includes seven medical doctors and two Ph.Ds’ — my guess is this administrative hearing’s going to last more than a couple days.  I also don’t think this will be the end for our friends at POM Wonderful.  My bet is, win or lose, they’ll be headed to federal court after this.  Given the potential effect on the natural foods industry, this definitely is a case worth watching.

The FTC is stepping up efforts to prevent “over-hyped health claims in food advertising,” which is something food manufacturers need to heed.  Once the revised Green Guides are released, the FTC is likely to step up enforcement of those as well. Marketers will be well served by spending some time with their lawyers learning how to stay out of trouble — that’s also much more cost effective than paying a lawyer to mop up after the juice has spilled.

About Lara

Lara Pearson is a trademark attorney with Exemplar, where she also serves as the firm's Sustainability Steward. Lara's legal practice focuses on trademark and copyright law, including: intellectual property audits; trademark search & clearance; trademark and copyright registration & maintenance; intellectual property transfers; transactional work; and dispute resolution, including litigation when necessary. Lara primarily represents other social enterprises -- those leveraging their businesses and brands as catalysts for positive social and environmental change. Such businesses engage in CSR (Corporate Social Responsibility) to have a positive "triple bottom line" of people, planet and profit. As Exemplar's Sustainability Steward, Lara works with others in her law firm to measure and reduce the firm's carbon emissions and encourage engagement in social responsibility initiatives, including pro bono legal work and volunteering. Lara is a proud member of the Social Venture Network. Brand Geek is a member of 1% for the Planet and a Certified B Corporation, whose Incline Village office is certified under the regional Keep the Sierra Green program. Exemplar Companies is the most innovative professional services firm in the New Economy. Our unique, diversified expertise spans the disciplines of corporate law, business advisory, and capital/investment banking to better meet the needs of our high-potential customers. We have assembled a comprehensive suite of service to meet the complex issues facing companies in today’s challenging business environment. Our unique, holistic approach ensures the growth and success – and greatly increases the competitive advantage - of our customers. The Exemplar team is comprised of knowledgeable, highly skilled experts in a wide range of industries and disciplines. They work closely with our customers to provide trusted advice, incomparable support, expert guidance and the ultimate competitive advantage as they accelerate their businesses and position themselves to transform industries.

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