POM Loses FTC Ruling On Ads (But Says It Won)

by Thom Forbes, May 22, 2012, 7:57 AM

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It’s a POM Wonderful life when you look at things though your own garnet-colored packaging.

Here’s the hed on a New York Times article this morning: “Judge Says POM Wonderful’s Advertising Is Misleading.”

The Los Angeles Times writes: “Pomegranate Juice Maker Used Deceptive Ads, FTC Judge Rules.” The subhed spells out the gist of the finding: “POM Wonderful Used Insufficient Evidence To Back Claims That Its Products Could Treat Or Prevent Serious Diseases, The Agency's Administrative Law Judge Says.”

To complete our triangulation of the finding, let’s consult a Washington Post copy editor’s interpretation of an Associate Press story: “Judge Sides With Feds, Rules POM Wonderful Deceptively Advertised Pomegranate Juice.”

But here’s the top of the POM press release which, naturally (to throw a popular word around), is in all-caps: “COURT AFFIRMS POM’S RIGHT TO INFORM THEIR CONSUMERS OF PRODUCTS’ HEALTH BENEFITS.” The subhed somewhat clarifies its affirmation of basic First Amendment rights: “FTC Administrative Law Judge Affirms that POM Wonderful May Deliver Its Scientifically Validated Health Benefit Information to Consumers.” 

“Scientifically Validated.” Ay, there’s the rub. POM is, in other words, perfectly free to make any claims it can back up. 

The first paragraph of the summary of the decision by chief administrative law judge D. Michael Chappell reads: “The preponderance of the evidence show that some of the Challenged Advertisements disseminated by Respondents would reasonably be interpreted by consumers to contain an implied claim that the POM products treat, prevent, or reduce the risk of heart disease, prostate cancer, or erectile dysfunction, and further, as to some of these advertisements, that these effects were clinically proven, as alleged in the complaint…. As to other Challenged Advertisements disseminated by Respondents, the preponderance of evidence fails to demonstrate that such advertisements would reasonable be interpreted by consumers as containing such claims. 

Evidently working from the release from Roll Global, POM’s parent company, the website for Food Products Design also sees victory for the company. 

“After nearly two years and 2,000 exhibits filed in Washington, FTC's administrative law judge issued a 335-page initial order … to close the complaint between FTC and POM Wonderful,” reads the story. “The agency filed an administrative complaint in September 2010 -- shortly after POM sued FTC on First Amendment grounds over its requirements related to health claims -- alleging POM Wonderful, parent corporation Roll International Corp., and principals Stewart Resnick, Lynda Resnick and Matthew Tupper made deceptive disease prevention and treatment claims.”

As The Plain Dealer’s Sheryl Harris writes: “I guess if you're going to make misleading claims about your product, you can't help putting an unrecognizable spin on a judgment against you…. Just to clarify: POM lost.” 

Harris points out, however, that the judge did deny FTC's effort to have POM get its products approved as by the Food and Drug Administration. And not all of its advertising is suspect.

“The judge did not find all POM ads in the original complaint to be at fault,” the Los Angeles Times’ Ryan Faughnder reports. “But one cited as deceptive described POM juice as an ‘antioxidant superpower’," and went on to say that antioxidants guard against agents that "can cause heart disease, premature aging, Alzheimer's disease, even cancer.’”

POM spokesman Corey Martin tells Faughnder that the company intends to "appeal certain aspects of the ruling," which would be heard by the five-member FTC. If that panel upholds the judge’s decision, POM could take the case to a federal appeals court. 

At the gym I frequent, coconut water seems to have replaced pomegranate juice as the purported new/old elixir for everything that ails you, or might (whether you’re aware of it or not). The “Nutrition Diva,” Monica Reinagel, M.S., L.D./N., ran down some of the claims of this hot product on her website a while back by leading with a description of its purported benefits that is still running on the Zico website: “For more than 4,000 years, coconut water has been revered as a natural source of nutrition, wellness, beauty and hydration. In times of famine and war, coconut water has been used as an intravenous fluid and saved many lives. It’s the only natural substance that can be safely injected into the human blood stream.”

As you might suspect, Reinagel sees a touch of “hype” in some of the product’s claims. But an otherwise measured and restrained 65-year-old banker I play racquetball with swears by coconut water’s restorative powers. Hmmmm. If we drink Zico Pomberry, perhaps we can play racquetball into our 90s. Ya think?

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