The Federal Trade Commission (FTC) has filed a motion to dismiss a complaint charging the agency with exceeding its authority in requiring Food and Drug Administration (FDA) pre-approval for health-related claims on food products, violating advertisers’ constitutional rights by requiring compliance with these standards and failing to comply with notice-and-comment rulemaking procedures in establishing the standards. POM Wonderful LLC v. FTC, No. 10-1539 (U.S. Dist. Ct., D.D.C., motion filed November 16, 2010). Additional information about POM Wonderful’s complaint appears in Issue 364 of this Update.

FTC contends that the court lacks jurisdiction to consider the matter because the complaint is moot, the company lacks standing, the company is attempting to preclude an enforcement action, and the complaint does not challenge final agency action.

Specifically, FTC claims (i) the agency merely created a possible remedy of FDA pre-approval in consent agreements with food producers making healthrelated claims and not an enforceable rule; (ii) it has proceeded against POM Wonderful without relying on any “rule” or “standard” other than the FTC Act, thus making POM Wonderful’s allegation that FTC would seek to enforce the new “rule” against it moot; (iii) FTC has caused no injury to POM Wonderful; (iv) POM Wonderful has raised the same issues in its defense to the administrative action FTC filed against it and will have the opportunity in that proceeding to litigate whether the condition of FDA pre-approval should be imposed; (v) the remedy POM Wonderful seeks would likely interfere with FTC’s enforcement action; and (vi) the complaint fails to state a claim on which relief can be granted in that the language purportedly creating the new standard was agreed on by FTC and other parties and does not constitute final agency action under the Administrative Procedure Act.

In its motion, FTC claims that POM Wonderful was aware, when the company filed its challenge on September 13, 2010, that FTC was poised to issue a complaint against it, and, on September 27, FTC did so. FTC’s complaint alleges that POM Wonderful’s promotions for pomegranate juice and pills were unfair or deceptive acts and false advertising in violation of the FTC Act. FTC also alleged that POM Wonderful misrepresented the results of purported clinical studies. The proposed order that FTC filed with its complaint would forbid any health-related claims “unless those representations are nonmisleading and substantiated by competent and reliable scientific evidence.” According to FTC, POM Wonderful’s responses to the complaint raise all the same issues advanced in the company’s litigation against the agency.  

It remains to be seen whether the parties’ “race to the courthouse” will affect how the court addresses these issues.