The saga of POM Wonderful, and the ongoing fight over its advertising, is a topic we have covered quite a bit on this blog. While the consumer class action involving POM was recently dismissed, a recent decision by the Federal Trade Commission (“FTC”) and the subsequent request for review of that decision may bear on future false advertising lawsuits against companies making health claims.
As background, the FTC issued a complaint against POM Wonderful LLC, and certain of its officers (collectively, “POM”) in 2010, alleging POM deceptively advertised its products as treating, preventing, or reducing the risk of heart disease, prostate cancer, and erectile dysfunction. In May 2012, FTC Administrative Law Judge D. Michael Chappell held that 19 POM products were indeed falsely or deceptively advertised. POM appealed the decision, and, on January 16, 2013, a panel of FTC commissioners issued a final order (“Order”). The Order upheld Judge Chappell’s decision, and in fact went beyond it, finding 36 products were falsely advertised. The Order states repeatedly that the decision is limited to POM and the circumstances of its products and advertising. However, there are several holdings noteworthy to our readers:
While holding that “competent and reliable scientific evidence” remains the standard for making representations regarding a product’s effectiveness in the diagnosis, cure, mitigation, treatment, or prevention of any disease, the Order holds that such claims by POM require “at least two randomized and controlled human clinical trials,” and that such trials must “yield statistically significant results” and be “double-blinded.”
For claims regarding the health benefits, performance, or efficacy of a product, “competent and reliable scientific evidence means tests, analyses, 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.”
Moreover, a health claim need not include the words “established” or “clinically proven” in order to be held to such standards. Simply using images of white lab coats, discussing the amount of money spent on medical research, or referring to a scientific publication could require the claim to meet the “competent and reliable scientific evidence” tests above. Qualifying claims with “may” or “can,” or using humor or hyperbole also did not preclude a claim from meeting these standards.
Finding that POM’s conduct is “serious and deliberate,” the Order requires POM to cease and desist such advertising. On March 8, POM filed a petition for review in the D.C. Circuit Court of Appeals, arguing primarily that the Order unconstitutionally violates POM’s First Amendment rights. Stay tuned for updates on the outcome of that review.