FTC Wins Long-Running Dispute with POM Wonderful

The Supreme Court has denied POM Wonderful, LLC’s petition for a writ of certiorari in its ongoing dispute with the FTC. POM sought to challenge the D.C. Circuit’s 2015 decision upholding the FTC’s determination that POM’s advertisements touting the health benefits of its products violated the FTC Act.

In a series of thirty-six advertisements, POM touted medical studies ostensibly showing that daily consumption of its pomegranate-based products could treat, prevent, or reduce the risk of various ailments, including heart disease, prostate cancer, and erectile dysfunction. However, many of those ads mischaracterized the scientific evidence supporting POM’s assertions by failing to disclose the studies’ limitations or selectively highlighting favorable studies. For example, one of POM’s newsletters claimed that research proved that the heart benefits of drinking POM’s juice included a 30% decrease in arterial plaque. The ad was based on one study and failed to mention two subsequent and much larger studies that showed no such benefits.

The Commission’s ruling had emphasized a distinction between “generalized nutritional and health benefit claims” and the “specific disease treatment and prevention claims at issue in this case.” Though the Commission did not address the level of support required to make general health or nutritional claims, it explained that POM’s ads convey[ed] the net impression that clinical studies or trials show that a causal relation has been established between the consumption of the challenged POM products and their efficacy in treating, preventing or reducing the risk of the serious diseases in question. In light of POM’s “selective touting of ostensibly favorable study results and nondisclosure of contrary indications from the same or a later study,” the Commission found many omissions of material facts in POM’s ads that consumers would not be able to independently verify. Accordingly, the Commission barred POM from running future ads stating that POM’s products treat or prevent any disease unless armed with at least two randomized, controlled, human clinical trial studies (“RCTs”) demonstrating statistically significant results.

The D.C. Circuit’s 2015 opinion affirmed almost all of the Commission’s findings. However, the Court agreed with POM that the Commission’s baseline requirement for all disease-related claims violated the First Amendment. According to the Court, the Commission had not justified a categorical floor of at least two RCTs for any and all disease claims, and found that one would be sufficient in this case. The Court noted that the consequences of mandating more than one RCT, without justification, would not only exact considerable costs on parties needing to design and conduct such trials, but would also adversely impact consumers who might be denied useful and truthful information regarding products that have a demonstrated capacity to treat or prevent diseases. Though two RCTs were not justified in this case, the Court noted that the Commission would not necessarily be barred from imposing a two-RCT substantiation requirement in other cases.

The case is POM Wonderful, LLC v. Federal Trade Commission, No. 13-1060 (Jan. 30, 2015).