Court Upholds Deceptive Ad Claims Against POM Wonderful

POM Wonderful FTC

WASHINGTON — A federal appeals court said Friday that many advertising claims for POM Wonderful juice were deceptive in asserting that it curbs the risk of heart disease, prostate cancer and erectile dysfunction and is clinically proven to work.

In a 3-0 decision, the U.S. Court of Appeals for the District of Columbia Circuit upheld a conclusion reached earlier by the Federal Trade Commission that many of POM’s ads made misleading or false claims. The ads appeared in national publications, on Internet sites, bus stops, billboards, newsletters and on tags attached to the products.

We see no basis for setting aside the commission’s conclusion that many of POM’s ads made misleading or false claims about POM products.

POM Wonderful produces a number of pomegranate-based products.

“We see no basis for setting aside the commission’s conclusion that many of POM’s ads made misleading or false claims about POM products,” wrote appeals judge Sri Srinivasan, an appointee of President Barack Obama.

The Federal Trade Commission Act doesn’t allow, “and the First Amendment does not protect — deceptive and misleading advertisements,” Srinivsan wrote.

The other two judges in the case were chief appeals judge Merrick Garland and appeals judge Douglas Ginsburg. Garland was nominated by President Bill Clinton, Ginsburg by President Ronald Reagan.

The court upheld the commission’s requirement that POM gain the support of at least one randomized, controlled, human clinical trial before claiming a causal relationship between consumption of POM products and the treatment or prevention of any disease.

Ruling against the FTC on one point, the appeals court said it found inadequate justification for the commission’s blanket requirement of at least two such studies as a precondition to any disease-related claim.

The appeals court examined studies the company used — an early one that was favorable to POM and two later, larger ones that weren’t. The court said that a POM newsletter omitted any mention of the unfavorable studies and trumpeted the findings of the favorable study.

“A consumer reading POM’s promotional materials after 2006 would not have known of those studies or that they cast doubt” on the prior findings, the appeals court stated.

POM had won its own false advertising case against a competitor last June, when the Supreme Court ruled in its favor. The justices ruled 8-0 that POM could proceed with a lawsuit alleging that the label on a “Pomegranate Blueberry” beverage offered by Coca-Cola Co.’s (KO) Minute Maid unit is misleading because 99 percent of the drink was apple and grape juice. The Supreme Court found that the juice label may technically comply with Food and Drug Administration rules but still may be misleading to consumers.

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