I. Introduction -

If you represent food and beverage manufacturers who advertise their products, you will want to be familiar with In the Matter of POM Wonderful LLC, a recent decision by the Federal Trade Commission (“FTC”). The FTC’s rather weighty decision (over 50 pages) contains a detailed look at the FTC’s current stance on the type of evidence that an advertiser must possess in order to make claims about the ability of a food or beverage product to treat serious health conditions. This e-lert provides an overview of the advertising claims involved, a short explanation of the FTC’s decision, and some of the key take-aways that you and your clients may want to consider in assessing your food and beverage advertising campaigns.

II. The Challenged Ads -

POM Wonderful manufactures and sells a family of pomegranate juice and related products under a variety of “POM”-branded names. From 2002-2012, POM Wonderful spent close to $250 million advertising these products including on TV and radio, in print, and through social media outlets. To help garner its piece of the multi-billion dollar beverage industry, POM Wonderful’s advertising campaign touted the health benefits associated with its pomegranate juices and related products. For example, many of the POM Wonderful ads claimed that the POM products would “treat, prevent, or reduce the risk of” serious health ailments such as “heart disease, prostate cancer, and erectile dysfunction.” Most of the POM Wonderful ads boasted more specifically that “preliminary” and/or “promising” “clinical studies” proved that using the POM Products “treats heart disease, prostate cancer, and erectile dysfunction or prevents or reduces the risk of each of these diseases.” Many of the ads also reinforced these claims by invoking “medical imagery” like white-coated lab technicians, a blood pressure cuff encasing a POM bottle, and EKG sensors, accompanied by taglines such as “[a]maze your cardiologist” and “[l]ucky I have super HEALTH POWERS.”