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POM Wonderful Responds to FTC Ruling with New Ad Campaign

30 May, 2012 By: Jackie Jones

WASHINGTON – In the wake of a recent ruling by a Federal Trade Commission (FTC) judge saying that POM Wonderful lacked competent and reliable evidence for health benefit claims, the juice maker has responded by using selected positive quotes from the adverse ruling in a new ad campaign.

FTC Judge D. Michael Chappell issued a cease-and-desist order on May 21 barring POM Wonderful from making claims that its juice reduces the risks of heart disease, prostate cancer and erectile dysfunction, but did side with the marketer in his ruling that a U.S. Food and Drug Administration (FDA) pre-approval requirement would “constitute unnecessary overreaching.”

“The preponderance of the evidence fails to demonstrate that such advertisements would reasonably be interpreted by consumers as containing such claims,” the judge said.

On May 24, POM Wonderful responded with online advertisements carrying the headline “FTC. V. POM, You be the judge,” which directed readers to a microsite with quotes from the judge’s decision that many have said are taken out of context. For example, one spot includes a portion of the FTC opinion reading, “Competent and reliable scientific evidence supports the conclusion that the consumption of pomegranate juice and pomegranate extract supports prostate health, including by prolonging PSA doubling time in men with rising PSA after primary treatment for prostate cancer.” The next line in the FTC opinion, though – which is not included in the POM Wonderful ads – reads, “However, the greater weight of the persuasive expert testimony shows that the evidence relied upon by the respondents is not adequate to substantiate claims that POM products treat, prevent or reduce the risk of prostate cancer or that they are clinically proven to do so.”

The FTC’s press release on the matter “oversimplified the ruling,” said Stewart A. Resnick, President of Roll Global, POM Wonderful’s parent company.

"We will continue to share the valuable health information of our products with consumers, and have decided to share with consumers these benefits using direct quotes from the FTC administrative law judge's ruling," Resnick said. “This week, the FTC issued a press release that oversimplified the ruling, which found a fraction of POM's advertisements misleading. The FTC critically failed to mention that out of 600 print and outdoor advertisements disseminated, the court found less than 2% of those misleading. POM is appealing those findings. The FTC's objective was to shut down all of POM's health benefit advertising and to use POM to impose a new standard of double-blind, randomized, placebo-controlled studies and preapproval by the FDA on all food companies desiring to make health claims. In these efforts, the FTC failed.”

The FTC has so far not commented on POM Wonderful’s response, according to multiple media outlets.

“Because one or both parties are likely to appeal certain aspects of the administrative law judge’s initial decision, the FTC staff has no comment on POM’s new advertising campaign at this time,” an agency spokeswoman said.

Many industry insiders have questioned POM Wonderful’s latest moves, with David Vinjamuri calling the company’s response to the FTC “disturbing” in an op-ed piece for Forbes, and August Horvath, a partner at the New York-based law firm Kelley Drye, saying “it’s extremely unusual,” according to a Brand Channel report.

“I consider it ill advised,” Horvath said. “The things POM has won on, that it is crowing about here – they could still lose on those matters and a good way to do that is to make the FTC really angry. And that’s what they might be doing.”

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