POM Sues the FTC

Posted By elissa on Sep 24, 2010 | 3 comments

POM Wonderful, LLC recently filed suit against the US Federal Trade Commission, on the grounds that new FTC standards are infringing on the company’s free speech rights.  According to Law.com:

Juice maker POM Wonderful has filed suit against the Federal Trade Commission in the U.S. District Court for the District of Columbia, claiming the agency has created a new standard for the evaluation of deceptive advertising that tramples the company’s free speech rights.

Lawyers for POM, including Barry Coburn of Washington’s Coburn & Coffman, are seeking a declaration in the court that the FTC’s new standard is invalid and that the agency has overstepped its authority by allegedly encroaching on the Food and Drug Administration.

The new standards, POM’s attorneys said, requires advertisers to obtain FDA approval before making certain types of health related claims — specifically, disease claims — about food, beverages and dietary supplements.

The FTC “specifically advised” POM of the new standard and said it carries legal force, according to the Sept. 13 suit against the agency. The court papers do not indicate when the FTC made this notification. The new standard, according to POM’s lawyers, was first announced in FTC settlements with Nestlé Healthcare Nutrition Inc. and Iovate Health Sciences USA Inc. in the middle of July.

POM’s attorneys said the FTC requirement comes “regardless of whether or not the claims are true or supported by competent, reliable scientific evidence.” The standard prevents POM from “truthfully advertising” the health benefit attributes of its products, according to the complaint.

The complaint is here.

FWIW, at least one high-profile industry attorney, Marc Ullman, thinks POM’s action has the potential to hurt – rather than help – the supp/natural products industry:

While POM’s lawsuit challenges FTC policy positions that have long been troubling to the supplement/natural products industry, the consequences of taking on these issues and losing may be far reaching and damaging. The potential ramifications of an FTC requirement of multiple product-specific studies as substantiation was serious enough to bring together a broad coalition of business interests, including the car industry, the natural products industry, the Chambers of Commerce and many others in opposition, to inclusion of language in the House version of the Financial Reform legislation that would have granted FTC the power to do this through rulemaking. Should POM lose this litigation on the merits, the next time the proponents of expanded FTC powers seek to grant the Commission unfettered rulemaking powers, it will be able to counter industry objections by pointing to a federal court decision upholding the very practices industry is objecting to. The long-term implications of such an outcome may be very serious indeed.

I’ll be curious to see how this goes. Personally, I’m a bit queasy about claims of disease treatment/prevention.  It’s to consumers’ benefit that such claims be backed by solid, peer-reviewed science.