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Closing arguments in FTC case vs POM Wonderful set for March 6

By Elaine Watson , 08-Feb-2012
Last updated on 08-Feb-2012 at 14:50 GMT

The verdict in the Federal Trade Commission’s (FTC’s) high-profile false advertising case against POM Wonderful is expected early next month.

The legal battle between POM and the FTC is being followed closely by food/supplements manufacturers and lawyers alike as it addresses broader questions over free speech and health claims.

An FTC spokeswoman told NutraIngredients-USA: “1pm on March 6, 2012, is now the date and time set for closing arguments.”

Asked when a final ruling would be made, she said: “The judge typically does not issue a ruling on the spot. There may be some indication of how long this could take during the closing arguments.”

FTC: POM claims are not supported by science

In its administrative complaint filed in September 2010, which POM has dismissed as “completely unwarranted”, the FTC accused POM of making false and unsubstantiated advertising claims that its products could prevent or treat heart disease, prostate cancer, and erectile dysfunction.

“Contrary to POM Wonderful’s advertising, the available scientific information does not prove that POM Juice or POMx effectively treats or prevents these illnesses [heart disease, prostate cancer or erectile dysfunction],” said David Vladeck, director of the FTC’s Bureau of Consumer Protection.

If administrative law judge Michael Chappell affirms the FTC’s complaint, a proposed order would require pre-approval from the FDA before POM is permitted to make future claims, said the FTC last year.

"Although FDA approval of health claims generally is not required for compliance with the FTC Act, the proposed order would require FDA pre-approval before POM Wonderful makes future claims that certain products prevent or treat serious diseases."

Emord: FTC has overstepped the mark

However, commenting on the case last year, food law attorney Jonathan Emord said that the FTC had overstepped the mark and “richly deserves to lose… If the FTC prevails, this case will establish a very speech restrictive precedent."

Regardless of how Chappell rules, the losing party would appeal and, thereafter, the case could proceed to federal court, predicted Emord.

In the 1999 Pearson v. Shalala case (which validated qualified health claim messaging as a First Amendment freedom of speech right), the DC Circuit held that even if the FDA rejects a health claim under the NLEA review process, it must allow the claim to enter the market with qualifications unless it can prove there is no qualifying statement "capable of eliminating misleadingness", said Emord.

Deplorable move

He added: "FTC’s order would compel POM to obtain NLEA health claims approval as a proxy for an FTC deceptive advertising determination without complying with Pearson v. Shalala.

"While FDA is forbidden from banning claims it does not approve by Pearson v. Shalala, the FTC seeks to do what FDA constitutionally cannot: demand NLEA health claims approval without complying with Pearson v. Shalala’s less speech restrictive requirement of a claim qualification.

"That is an end-run around the Constitution and a deplorable move by FTC."

A flurry of lawsuits

POM has in turn launched legal action against the FTC alleging it has exceeded its statutory authority by establishing a two-clinical trial standard to back claims.

It has also launched a flurry of lawsuits against rivals.

In December 2011, however, it failed to convince a federal jury that Ocean Spray Cranberries misled shoppers and deprived POM of potential sales by selling a pomegranate juice product containing only small amounts of pomegranate.

While a federal jury found Welch Foods had deceived consumers in the labeling of its White Grape Pomegranate juice in September 2010, it nevertheless awarded POM no damages.

Two months later, another federal jury found that Tropicana Products’ labeling of its Pure Pomegranate Blueberry juice had not deceived consumers.

POM Wonderful is the largest producer of California Wonderful pomegranates, which are used in its POM Wonderful Pomegranate Juice and a range of other products including bars, supplements, shots and beverages.

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