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Juiced Advertising or Persecution of the Pomegranate?

By Jason Hicks, Esq.

On Monday, September 27, 2010, the FTC brought charges against Pom Wonderful for making false and unsubstantiated claims about the health benefits of their pomegranate juice. The New York Times explains: "Pom Wonderful, the pricey and popular pomegranate juice sold in the distinctly curvaceous bottle, is advertised as helping to reduce the risk of heart disease, prostate cancer and impotence." As explained in their advertising, Pom has spent millions of dollars on medical research. The FTC, however, believes Pom is overstating the results of that research because pomegranate products often show no more efficacy than a placebo.

The FTC's press release states:

?Any consumer who sees POM Wonderful products as a silver bullet against disease has been misled,? said David Vladeck, Director of the FTC?s Bureau of Consumer Protection. ?When a company touts scientific research in its advertising, the research must squarely support the claims made. Contrary to POM Wonderful?s advertising, the available scientific information does not prove that POM Juice or POMx effectively treats or prevents these illnesses.?

In response, Pom says it does not claim that its product acts as a drug: "What we do, rather, is communicate, through advertising, the promising science relating to pomegranates. Consumers and their health care providers have a right to know about this research and its results." The New York Times quotes Pom as saying: "Its a shame that the government is unable to understand this fundamental distinction ... and instead is wasting taxpayer resources to persecute the pomegranate."

The FTC's administrative complaint comes on the heels of a lawsuit that Pom filed against the FTC challenging the commission's new rules requiring advertisers to obtain FDA approval before claiming that food, beverages or dietary supplements are useful in preventing disease. Pom argues that FTC's new standards violate its First Amendment free speech rights.

Full post as published by Antitrust and Distribution Law Blog on September 29, 2010 (boomark / email).