• by Karlene Lukovitz  @KLmarketdaily, February 2, 2015

An appeals court has upheld a Federal Trade Commission ruling that the makers of POM Wonderful pomegranate juice and POMx supplements engaged in deceptive advertising.

The FTC ruled that the ads at issue went beyond making general health claims for the products, to make deceptive claims that they could treat, prevent, or reduce the risk of heart disease, prostate cancer and erectile dysfunction, and were clinically proven to have such benefits. The ads included wording such as "cheat death," "amaze your cardiologist” and “drink to prostate health.”  

The U.S. Court of Appeals for the District of Columbia rejected POM Wonderful LLC's argument that its ads were free speech protected by the First Amendment.  

In an opinion for the three-judge panel, judge Sri Srinivasan wrote that many of the ads had "mischaracterized the scientific evidence concerning the health benefits of Pom’s products with regard to [the referenced] diseases,” and that deceptive advertising is both prohibited by the FTC Act and not protected by the First Amendment.

The ruling provides more legal support for the FTC's efforts to curb what it deems insufficiently substantiated medical claims for food, beverages and supplements.

However, the court rejected the FTC's requirement that POM cite two randomized, controlled human clinical trials to support disease treatment and prevention claims, saying that POM need only cite one such study. Making two studies the standard could have the effect of denying consumers "useful, truthful information about products with a demonstrated capacity to treat or prevent serious disease,” wrote the court, adding that the FTC would have to better substantiate a demand to require more than one study.

In a statement following the court's decision, FTC chairwoman Edith Ramirez called it a "victory for consumers." Established law requires that "advertisers who market products for serious health conditions must have rigorous science to back up those claims," and the appeals court "specifically recognized that this applies to food and dietary supplement marketers such as POM," she wrote. "It also held that requiring a randomized, well-controlled human clinical study for future disease benefit claims is an appropriate remedy based on POM’s conduct.”

In a statement, POM LLC, which is part of the Roll Global holding company owned by billionaires Stewart and Lynda Resnick, said that it was pleased that the court “substantially reduced the requirement that the FTC tried to enforce on us to conduct multiple double-blind, placebo-controlled studies.”

It also stressed that the company "has always communicated with consumers in a transparent, honest manner, delivering valuable information about the potential health benefits of our products."