Judge issues Initial Decision in POM Wonderful case
An FTC Administrative Law Judge ruled that POM Wonderful LLC and related parties made misleading claims that POM Wonderful 100% Pomegranate Juice and other products would treat, prevent, or reduce the risk of heart disease, prostate cancer, and erectile dysfunction. Although the remedy in the case wasn’t everything the FTC staff had asked for, the ALJ concluded that POM had engaged in false and deceptive advertising.
In a 335-page decision, the Judge ruled that the company lacked competent and reliable scientific evidence that drinking eight ounces of POM Juice daily (or taking a POMx pill or one teaspoon of POMx liquid) treats, prevents, or reduces the risk of heart disease, prostate cancer, or erectile dysfunction. Although the ALJ held that the "competent and reliable scientific evidence” standard for disease claims about food didn’t necessarily require randomized clinical trials, he went on to conclude that the company’s science wasn’t adequate to support its representations. According to the opinion, “the weight of the persuasive expert testimony” demonstrated that POM didn’t have the proof it needed to back up those claims. For a few other claims, the Judge didn’t accept the FTC staff’s argument regarding how consumers would reasonably interpret what the company was conveying.
What about the order? The ALJ entered a broad order covering “any food, drug, or dietary supplement” — not just the products at issue in the trial. According to the opinion, the breadth of the order was justified by the seriousness and deliberateness of POM’s violations. Furthermore, the order is binding not just on POM, but also on Roll Global LLC, the corporate umbrella for numerous other national brands. In addition, the ALJ ruled that the order applies individually to corporate officers Stewart Resnick, Lynda Resnick, and Matthew Tupper, each of whom “participated directly in the business entity’s deceptive acts or practices, and/or had the authority to control them.”
In the future, POM will need competent and reliable scientific evidence to support both disease claims and general claims about the health benefits, performance, and efficacy of its products. The order requires that POM’s evidence has to meet standards generally accepted in the relevant scientific field and that the company has to look at it in light of the entire body of relevant and reliable scientific evidence.
However, the order entered by the ALJ wasn't all the FTC staff had requested. For claims that any POM product was effective for preventing, treating, or curing disease, the FTC staff had asked the Judge to impose a requirement that POM get FDA approval first. The Judge said no, concluding that “would constitute unnecessary overreaching.”
What’s the next step? Right now it’s wait-and-see. The decision is subject to review by the full Commission on its own motion or at the request of any party.