The FTC has issued a final opinion and order finding that POM Wonderful LLC and other related parties violated the FTC Act by making false or misleading claims to promote their pomegranate products. The FTC’s decision, Venable partner Gregory J. Sater writes in the February edition of the DRMA Voice, affirms in large part the previous ruling by an administrative law judge. Now, POM and the other named parties have the right to petition for review of this decision by the U.S. Circuit Court of Appeals. This, writes Sater, means that the POM saga will continue to drag on.

Sater’s article highlights a few of the key points of the 53-page decision that marketers should consider, including:

  • The FTC is entitled to rely on its own analysis of an advertisement so long as the advertisement’s claims are “reasonably clear.”
  • The use of medical language and imagery can convey disease claims by contributing to the overall “net impression” of the advertising campaign, even if disease claims are not expressly made.
  • The use of tentative language such as “preliminary,” “promising,” “may,” or “can” does not necessarily mitigate product efficacy messages in POM’s advertisements.
  • Key personnel, such as POM’s COO, can be held individually responsible and subject to the POM order because of the FTC's finding that he had participated in or had the authority to control the advertising.

Click here to read the full text of Sater’s analysis and learn what other insights FTC’s POM Wonderful decision has for marketers making aggressive advertising claims.