The Eleventh Circuit Court of Appeals has rejected most of the Federal Trade Commission’s (FTC’s) claims that a dietary supplement manufacturer was in contempt of a stipulated final order and permanent injunction under a 2006 consent agreement; the court remanded one claim—that Garden of Life “misrepresented the six-month results of a bone density study in an advertisement for Grow Bone system”—for the district court to address. FTC v. Garden of Life, Inc., No. 12-12382 (11th Cir., decided April 15, 2013) (unpublished).
The consent agreement, which settled a dispute over alleged advertising misrepresentations, apparently prohibited unsubstantiated claims “about absolute or comparative health benefits, efficacy, performance, safety, or side effects” and misrepresentations about “the existence, contents, validity, results, conclusions, or interpretations of any test or study.” Garden of Life contracted with ISS, a consulting firm headed by a clinical pharmacologist with 20 years of experience evaluating advertising claims, to comply with its obligations under the FTC agreement.
FTC brought contempt claims over ads for products the company launched in 2009, calcium supplements RAW Calcium® and Grow Bone System®, and an omega-3 supplement for children Oceans Kids Chewables®. While the district court rejected FTC’s contempt claims, it failed to expressly address an advertisement for the company’s Grow Bone System® alleged to have falsely reported six-month increases in bone density that were in fact annualized figures that doubled a study’s six-month findings. The Eleventh Circuit found that the district court’s order did not provide a sufficient record on this issue for its review, so it remanded the case for the court to “specifically address whether [Garden of Life’s] false description of the bone density study’s results constituted a violation of §2,” that part of the consent agreement barring misrepresentations of study results.