The U.S. Supreme Court has declined to grant a petition for writ of certiorari filed by POM Wonderful in an action brought by the Federal Trade Commission.
In 2012, an administrative law judge determined that 19 ads for POM Wonderful 100% Pomegranate Juice and POMx supplements were misleading because they claimed that the products could treat, prevent, or reduce the risk of problems such as heart disease and prostate cancer. When the Commission reviewed the decision, it not only affirmed the ALJ's findings but additionally ruled that another 17 advertisements were deceptive.
The FTC issued a cease and desist order instructing the company to support any of its future disease-related claims with two randomized clinical trials (RCTs). Other health benefit claims could be supported by competent and reliable scientific evidence.
POM appealed the order to the D.C. Circuit Court of Appeals. According to POM, the agency's order created a new, heightened standard for food products similar to that of pharmaceuticals. The federal appellate panel agreed, to an extent. While the court found that the company and its principals engaged in deceptive advertising, the court declined to accept the FTC's requirement of two RCTs in support of future claims.
Instead, the D.C. Circuit panel cut the requirement in half to just one trial, holding that while two RCTs would certainly be more reliable than one, the Commission failed to justify that the increased scientific certainty afforded by the requirement outweighed the increased costs and burden to POM.
The advertiser appealed again, filing a writ of certiorari with the U.S. Supreme Court, presenting the question: "Whether a finding by the FTC that a truthful advertisement nonetheless implies a misleading message to a minority of consumers, and therefore receives no First Amendment protection, must be reviewed de novo?" The D.C. Circuit gave too much deference to the FTC's determination, POM argued, and the agency was infringing its free-speech rights.
But the justices elected to pass on the case, leaving the D.C. Circuit opinion in place and ending POM's hopes for a reversal.
To read the D.C. Circuit opinion in POM Wonderful v. FTC, click here.
To read POM Wonderful's cert petition, click here.
Why it matters: The courtroom battle may have come to an end, but both parties continued the skirmish in statements about the Supreme Court's denial of cert. "I am pleased that the POM Wonderful case has been brought to a successful conclusion," FTC Chairwoman Edith Ramirez said in a statement. "The outcome of this case makes clear that companies like POM making serious health claims about food and nutritional supplements must have rigorous scientific evidence to back them up. Consumers deserve no less." In its own statement, POM said the company "is committed to honest, transparent communication with consumers everywhere, and while the FTC questioned only 36 of our nearly 600 ads, we continue to stand behind our efforts to publicly convey valuable information about the health benefits of POM, as well as the $40 million peer-reviewed, scientific research we've conducted regarding the power of this amazing fresh fruit."