POM Appeals FTC Final Order Regarding Deceptive Claims

Mar 20, 2013   

As we previously reported, on May 17, 2012, an FTC Administrative Law Judge (“ALJ”) held in an Initial Decision that POM Wonderful LLC’s (“POM“) claims that its products can treat, prevent, or reduce the risk of heart disease, prostate cancer, and erectile dysfunction (“ED”) were deceptive and inadequately substantiated because the claims were not supported by sufficient “competent and reliable scientific evidence.” FTC case law defines “competent and reliable scientific evidence” as “tests, analysis, research, or studies that have been conducted and evaluated in an objective manner by qualified persons and are generally accepted in the profession to yield accurate and reliable results.” Seee.g. In re Novartis Corp., 127 F.T.C. 580, 725 (1999). Although the Initial Decision rejected the FTCs theory that competent and reliable scientific evidence for the disputed claims could only be satisfied with two double-blind, randomized placebo-controlled clinical trials (RCTs), the ALJ found that competent and reliable scientific evidence could be established without RCTs in order to adequately substantiate disease claims. Subsequently, both POM and the FTC appealed the Initial Decision to the FTC Commissioners.

On January 10, 2013, the FTC Commissioners issued a Final Order approving the Initial Decision 5-0 that POM made deceptive claims about treating, preventing or reducing the risk of heart disease, prostate cancer and ED. The Commissioners also issued a cease and desist order restraining POM’s future advertising.

On March 8, 2013, POM appealed the Commission’s Final Order to the United States Court of Appeals for the District of Columbia Circuit. POM’s petition for review can be found here. Significantly, POM’s petition did not request a stay from the D.C. Circuit. Thus, the cease and desist order restraining POM’s advertising has become effective and will remain so at least until the DC Circuit issues a ruling on this case.

Fuerst Ittleman David & Joseph, PL will continue to monitor the development of the POM case. For more information about food and dietary supplement claims or to have Fuerst Ittleman David & Joseph, PL complete a label and website review for your products, please contact us at (305) 350-5690 or contact@fidjlaw.com.