D.C. Circuit Upholds False Ad Claims Against POM Wonderful

The D.C. Circuit Court of Appeals has affirmed a Federal Trade Commission
(FTC) order that found POM Wonderful’s advertising to be misleading for
claiming that its products treat or reduce the risk of several medical conditions,
including prostate cancer and heart disease. POM Wonderful, LLC v. FTC, No. 13-1060 (D.C. Cir., order entered January 30, 2015). In 2013, FTC ordered
POM to stop making misleading health claims about its product, and POM
challenged the ruling.

POM argued that its ads were protected by the First Amendment, but the
court dismissed this argument, finding that deceptive and misleading ads
have no First Amendment protection. The juice company also asserted that
it had clinical studies to support its health claims. The circuit court affirmed
FTC’s finding that POM had cherry-picked its results when presenting them
to the public, which invalidated them as support for the claims. The court
agreed with POM, however, that the FTC requirement of two double-blind,
randomized, placebo-controlled clinical trials (RCTs) was onerous, but found
that one RCT as an across-the-board standard for disease claims would be
adequate. Finding that POM still could not meet this lowered threshold, the
court upheld the FTC ruling.

“It is in keeping with established law that advertisers who market products
for serious health conditions must have rigorous science to back up those
claims,” said FTC Chair Edith Ramirez in a January 30, 2015, press release.
“The court specifically recognized that this applied to food and dietary
supplement marketers such as POM. It also held that requiring a randomized,
well-controlled human clinical study for future disease benefit claims is an
appropriate remedy based on POM’s conduct.”

Issue 553