The dust has finally begun to settle in the long and highly publicized legal battle that set POM Wonderful in the FTC’s crosshairs. By all accounts it would seem Roll Global’s pomegranate juice brand is taking the ruling in stride, creating new general health benefit ads that make light of the ruling and encourage consumers to judge for themselves.
The new ad campaign is the latest chapter in an ongoing saga that began when POM came under fire by the FTC for the extensive list of health claims attached to its pomegranate juice beverage. Last month a ruling from the FTC Administrative Law Judge gave POM the green light to resume marketing its beverage with the condition that the claims must be rooted in “competent and reliable scientific evidence.”
“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,” said Stewart Resnick, president of Roll Global, POM Wonderful’s parent company.
In fact, the new POM Wonderful media campaign drew directly from the facts and opinions stated in the ruling from the Administrative Law Judge of the FTC, boldly referencing the legal battle with the headline, “FTC v. POM - You be the judge.”
Some of the ads also highlight the claims that were not struck down by the FTC. Health benefit claims ranging from its prostate and erectile health claims to general claims about the benefits of antioxidants found in pomegranates and pomegranate juice were deemed to be supported by "competent and reliable scientific evidence" in the ruling.
Those ads feature rather tongue-in-cheek depictions of the iconic POM bottle. In one ad, the bottle bears a broken hangman’s noose with the tagline, “Cheat death. POM Wonderful. The Antioxidant Superpower.” In another, the bottle of the juice is reclined on a chaise lounge with the tagline, “Heart therapy. POM Wonderful. The Antioxidant Superpower.” And in another the bottle is superimposed over a superhero-ish cartoon background with a dialogue bubble that says, “I’m off to save the PROSTATES!”
There is one component that ties all of the ads together – at the bottom of each ad is the statement “‘…Natural Fruit Product with Health Promoting Characteristics,’ – FTC Judge.”
The full-page ads are currently appearing in newspapers like the New York Times and the Los Angeles Times, as well as online, with ads on CNN, the Huffington Post, and the homepage and health pages of the New York Times online.
The Battle Continues
Despite the lemons into lemonade ad campaign, POM doesn’t seem willing to let its battle with the FTC fade away. In a statement, the company referenced an FTC press release, which “oversimplified the ruling” that “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,” the company stated, and noted that it 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 standard of ‘competent and reliable scientific evidence’ has been defined in FTC case law as ‘tests, analyses, research, studies, or other evidence based on the expertise of professionals in the relevant area, that has been conducted and evaluated in an objective manner by persons qualified to do so, using procedures generally accepted in the profession to yield accurate and reliable results,’” explained Eric Lindstrom, legal counsel at Keller and Heckman, LLP, who assists companies on FDA, FTC, and USDA regulatory matters for foods, dietary supplements and cosmetics. “When it comes to proving health-related claims for a food or a supplement, both FDA and FTC consider double-blind, randomized, placebo-controlled clinical trials to be the ‘gold standard’ of ‘competent and reliable scientific evidence,’ although depending on the specific claim, that level of substantiation may not always be required.”
Mr. Lindstrom went on to explain that the task of the Administrative Law Judge (ALJ) was to determine if the claims made by POM were adequately supported by competent and reliable scientific evidence or, put more simply, determine if the claims were truthful and not deceptive. “The ALJ held in his summary of decision that double-blind, randomized, placebo-controlled clinical trials were not required to substantiate POM's implied claims for the products, but he held that POM’s ‘substantiation was, nevertheless, inadequate,’” he said. “To be fair, the ALJ did find that some of POM's more basic claims were adequately supported, but most claims, especially the more sensational disease claims, were found not adequately supported.”
Mr. Lindstrom added that although a basic underlying goal of law is fairness, the heart of the POM case centered on whether or not POM met a legally required standard of conduct. “I read FTC's complaint against POM when it was filed and thought at the time that if the agency's allegations were true, POM would have a very difficult time winning the case,” he said. “That thought seems to have been borne out.”
How POM works to maintain its brand integrity moving forward will be a key factor governing the company’s future. “The first order of business is to make sure current and future claims are adequately supported and, from a public relations point of view, find a way to make sure consumers understand that,” Mr. Lindstrom said. “POM is trying to publicize what positive information it can from the ruling, but most of the ruling is a loss for POM. Its stronger claims were found to be not adequately supported.”
In a separate but related press release, POM said it has been “deeply committed to studying the health benefits of the pomegranate, investing over $35 million to support scientific research on Wonderful variety pomegranate products at 44 top universities and scientific centers around the globe. Out of the over 100 studies conducted, more than 70 have been published in significant peer-reviewed journals, together validating the health benefits of the pomegranate and pomegranate juice.”
The company added that the as a result of the ruling, POM Wonderful “will finally be able to share the scientific evidence that highlights the value and power inherent in pomegranates and pomegranate juice with impunity.”
“Through its lawsuit against POM, the FTC tried to create a new, stricter industry standard, similar to that required for pharmaceuticals, for marketing the health benefits inherent in safe food and natural food-based products. They failed,” explained Craig Cooper, chief legal officer for POM Wonderful LLC. “While we are still analyzing the ruling, it is clear that we will be able to continue to promote the health benefits of our safe, food products without having our advertisements, marketing or public relations efforts preapproved by the FDA and without having to rely on double-blind, randomized, placebo-controlled studies, the standard required for pharmaceuticals. We consider this not only to be a huge win for us, but for the natural food products industry.”
How the POM ruling stands to impact other companies who use health claims to market their own functional and natural food and beverage products remains to be seen. On Thursday, part two of this article will examine what this ruling means and the important lessons other companies can take away from this case.