POM Wonderful: Free Speech and Advertising

In a case that has the attention of many, including the ad industry and marketers of food and supplement products, POM Wonderful, LLC (“POM”) has been battling with the FTC since 2010. On January 16, 2013, the Federal Trade Commission (“FTC”) upheld a May 2012 Administrative Law Judge’s (“ALJ”) decision that the company and its owners had falsely advertised its POM Wonderful 100% Pomegranate Juice, POMx liquid and pill supplements, by claiming that its products treat, prevent or reduce the risk of heart disease, prostate cancer, and erectile dysfunction. The Commission also rejected POM’s arguments that finding liability would violate its First Amendment right to free speech and its Fifth Amendment right to due process. The FTC’s request that POM be required to obtain FDA approval for future claims was however, denied. The FTC found that 34 out of 43 ads contained false or deceptive claims, whereas the ALJ decision found that only 19 contained false or deceptive claims. Significantly, the Commission also found that POM needed to provide more substantiation for its claims than what was determined by the ALJ decision.