(UPDATEDCOVERAGE May 9)
Fifteen minutes each wasn’t long enough for the Federal Trade Commission and Pom Wonderful to summarize their points in a deceptive advertising case that drew a standing room only crowd to the U.S. Court of Appeals in Washington D.C.
The docket for the May 2 hearing before a three-judge panel called for each side to present their cases in 15 minutes.
However, the audio recording of the hearing runs almost two hours and is dmoniated by questions and comments from Judges Sri Srinivasan and Douglas Ginsburg and the circuit’s Chief Judge Merrick Garland. The judges have taken the case under advisement and will issue their opinion at a later date.
“By presenting our case before the D.C. Circuit Court of Appeals in Friday’s hearing, POM Wonderful is pursuing an appeal to set the record straight and to ensure that consumers can be told about the benefits of healthy foods,” according to a statement issued by Roll Global, the parent company of Pom Wonderful.
The lawyers representing the FTC declined to comment on the pending litigation.
At issue are print and broadcast advertisements by Los Angeles-based Pom Wonderful that stated the company’s 100% pomegranate juice, powdered pomegranate capsule supplements and concentrated pomegranate liquid can treat, prevent and cure heart disease, prostate cancer and erectile dysfunction.
Pom Wonderful killed some of its advertisements in 2005 and discontinued more in 2007. The company claims the FTC violated its First Amendment rights by restricting the ads.
The FTC contends 36 advertisements make unsupported claims. Roll Global owners Stewart and Lynda Resnick — who also own Paramount Citrus, Wonderful Pistachios and several other companies — say they’ve invested more than $35 million in research that proves their claims.
In court documents, the FTC argued that some of the research paid for by the Resnicks actually showed their products were not more effective than placebos. During the hearing, the FTC’s attorney said some of the research money Pom cited as proving its claims was spent on unrelated projects.
In the May 2 hearing, the Resnicks’ attorney Thomas Goldstein said the FTC’s demand for two randomized, controlled clinical trials was excessive.He also argued with Chief Judge Garland about related case law, causing the judge to respond, “(the case law) does not say that. I was on the panel and here’s what we said about disclaimers. ...”
At one point the judge said all of Pom’s disclaimers fell short of the guidelines. Goldstein responded that he thought it was a straightforawrd point. The judge told him “yes, but I think you’ve got it wrong.”
Judge Garland read part of a Pom advertisement aloud and said, “I don’t understand if you look at those two paragraphs how you can say that it’s not misleading.”
The FTC lawyer said Pom not only published misleading advertisements with insufficient and vague disclaimers, but the company also failed to provide consumers with information about studies that showed its product’s effect on erectile dysfunction to be ineffective.
“An ommission is a violation of the FTC Act as much as an outright mistake,” the FTC attorney said.
The case began with a February 2010 warning from the Food and Drug Administration.
The FDA told Pom Wonderful that claims on labels and websites related to the pomegranate juice, POMx supplements and POMx Liquid meant the products were drugs as defined by federal law. The FDA ordered the company to change the information.
In September 2010 the FTC filed a complaint against the Resnicks and other corporate officers at Pom Wonderful, saying the company’s labeling, marketing and advertising related to health claims were deceptive and unsubstantiated.
The FTC ordered Pom Wonderful to stop making the disease prevention and treatment claims unless it could produce scientific evidence.
“When a company touts scientific research in its advertising, the research must squarely support the claims made. Contrary to POM Wonderful’s advertising, the available scientific information does not prove that POM Juice or POMx effectively treats or prevents these illnesses,” David Vladeck, director of FTC’s Bureau of Consumer Protection, said when the FTC filed the complaint.