Advertising Law -- May 22, 2012: SPECIAL FOCUS: FTC Judge Rules POM Lacked Competent and Reliable Evidence for Health Benefit Claims

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On May 21, 2012, the Federal Trade Commission announced that its Chief Administrative Law Judge ("ALJ") had issued a much anticipated ruling on the FTC’s administrative complaint against POM Wonderful, its sister corporation Roll International Corp., and three of its principals, Stewart Resnick, Lynda Resnick and Matthew Tupper (hereafter “POM”). In a 335-page ruling, Judge D. Michael Chappell held that POM Wonderful lacked competent and reliable scientific evidence for a number of its advertising claims that pomegranate juice and supplements can treat or prevent heart disease, prostate cancer and erectile dysfunction. As such, he ordered POM Wonderful to cease and desist making these health benefits claims about its products.

However, with regard to the FTC’s proposed order, which would have required that POM obtain the FDA’s approval before making any future health claims about its products, Judge Chappell ruled in favor of POM, noting that such requirements would be “over-reaching.” The judge also rejected the FTC’s claim that studies involving food, beverages and supplements must comply with the same double-blind, randomized, placebo-controlled requirements imposed on pharmaceuticals. The ALJ’s decision thus represents a significant setback to the FTC’s much debated tightening of substantiation standards for certain health claims.

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