Breaking News on Supplements & Nutrition - North AmericaEU edition

News > Regulation

Lawyer: FTC 'richly deserves to lose' battle vs POM Wonderful

2 commentsBy Elaine Watson , 23-May-2011

POM: Gearing up for battle with the FTC
POM: Gearing up for battle with the FTC

A high-profile legal battle between Californian juice maker POM Wonderful and the Federal Trade Commission (FTC) will move into a new phase tomorrow at a hearing in Washington DC.

The hearing, presided over by administrative law judge Michael Chappell, was called after the FTC accused POM of making unsubstantiated claims about its juices and supplements, and will be keenly followed by the food/supplements and legal professions alike.

Food law attorney Jonathan Emord said: "The FTC richly deserves to lose. By presuming to enforce the NLEA [Nutrition Labeling and Education Act] prior restraint on health claims, it has exceeded the limits of its statutory authority.

"By presuming to enforce that prior restraint without abiding by the constitutional mandate of Pearson v. Shalala [1999 case that validated qualified health claim messaging as a First Amendment freedom of speech right] it has doubly erred."

Emord: Speech restrictive precedent

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

"If the FTC prevails", he added, "this case will establish a very speech restrictive precedent." In the Pearson v. Shalala case, he said, the DC Circuit held that even if the Food and Drug Administration (FDA) refuses to approve a claim under the NLEA health claims 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".

Deplorable move

He added: "FTC’s [proposed] order [if its complaint is affirmed] would compel a party 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. The FTC is presuming to apply FDA standards not applicable to advertising. FTC says that it is doing so as a 'proxy' for its own deceptive advertising review, but that is a leap of faith, beyond the limits of its statutory authority."

‘Completely unwarranted’

In its complaint , which POM has dismissed as “completely unwarranted”, the FTC accused POM of making deceptive disease prevention and treatment claims in ads in high-profile publications including The New York Times along with its own websites.

“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.

Pre-approval needed for claims?

If Chappell affirms the FTC’s complaint, a proposed order would require the unusual step of pre-approval from the FDA before the company is permitted to make future claims, said FTC spokeswoman Betsy Lordan. The hearing could last several weeks, after which the judge will make an initial decision, she said."It will run for the rest of the week, adjourn, then start again in late July and finish sometime in August.

"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."

POM is currently embroiled in a complex web of litigation, having itself launched legal action against the FTC alleging it had exceeded its statutory authority by establishing a two-clinical trial standard to back claims.

It has also filed actions against Coca-Cola Minute Maid, PepsiCo Tropicana and Ocean Spray alleging misleading claims about the contents of their pomegranate-containing juice products.

Separately, POM is itself accused of misleading consumers in a class action lodged in a Florida state court.

2 comments (Comments are now closed)

Instead of limiting this information, we need to mandate its dissemination

There are actual scams abounding that the FTC does nothing about, like the people who sell panacea waters of various sorts, claiming that their machines alter the bond angle of the water molecule. On the other hand, there is actual clinical evidence that pomegranate consumption can favorably change some parameters of cardiovascular malfunction, not to mention other physiological effects that are the object of study. The pomegranate was so important in Biblical times that withering of the pomegranate tree was a sign of God's wrath in the old testament, and it is turning out to be just as important today. POM is not claiming that it cures or prevents anything, and we really don't know yet how effective it might be for those who consume it, say, as a cancer preventive or in the hope of reducing plaque deposition. We have nothing to lose by consuming it, and a reasonable probability of something to gain, but it will no doubt be decades before the medical community finally decides that it might be better for us than simply as part of "eat your fruits and veggies."
To deny POM and others the right to inform people, who, from our epidemics of obesity, metabolic disorder, etc., etc., are sorely in need of nutritional information, that promising work has been and is being done with this wonderful fruit, as well as its extracts, would be a crime. Instead of trying to limit the dissemination of information, Stalin-like, perhaps we ought to mandate it.
Is there some way that private citizens can act as friends of the court and send it statements in support of POM? The FTC's attitude is outrageous.

Report abuse

Posted by George A Butel
01 June 2011 | 05h41

It Is time to Revoke the Power of the FTC

It is time to revoke the power of the FTC and the FDA for abuse.
They really need to spend time questioning the offices of Doctors and agreements to share profits to sell the drug companies brand instead of what is right for the patient.
Let's question drug manufacturing practises in other countries regarding quality control and the ability for employees to read english formulaes. Many American's are subject to damages because of this huge error, however the crummy pills are traded marked as quality by drug companies.
If I want to put POM in my body...it is my business.
Pomegranate is one of the fruits that actually starve cancer cells and of course the FDA is going to block it because toxic chemotherapy is guarding the American Doctor and drug companies.

Report abuse

Posted by Sandra I. White
23 May 2011 | 21h02

Related products

Key Industry Events

 

Access all events listing

Our events, Events from partners...