POM Wonderful has gone on the offensive following a ruling on its legal battle with the Federal Trade Commission (FTC) from an administrative law judge (ALJ) with a bold series of new ads selectively quoting from his 335-page initial decision.
One ad - which features a quote from ALJ Michael Chappell describing POM Wonderful juice as a ‘natural fruit product with health promoting characteristics’ - also features the strapline: ‘I’m off to save prostates’.
Given that Chappell agreed that POM products could support prostate health - but concluded there was insufficient evidence that they could treat, prevent or reduce the risk of prostate cancer - this could be seen as provocative.
However, Chappell did not specifically object to this strapline, which POM has used before, the firm’s corporate communications boss Corey Martin told NutraIngredients-USA: “This was not included in the claims that the ALJ found misleading.”
Other ads in POM’s new campaign - which includes full-page print ads in the New York Times plus online ads on the websites of CNN and the Huffington Post - use the same ‘health promoting’ quote from Chappell but include the straplines: Heart Therapy… and Cheat Death…
Chappell: Some claims are OK, others are not…
In his ruling, dated May 17 and available here , Chappell concluded that structure/function type claims that pomegranate juice can "support prostate health" and "promote erectile health" can be supported by the evidence.
However, stronger claims that it can prevent, treat or reduce the risk of prostate cancer, erectile dysfunction and heart disease are not supported by competent and reliable scientific evidence, and must be amended, he said.
POM to appeal 'those aspects of the ALJ’s ruling that we find objectionable'
The new ad campaign is designed to “illuminate the facts and opinions” in Chappell’s ruling, said POM, which claims the FTC’s press release on his decision “oversimplified” it.
POM also plans to appeal some of his findings, added the firm, which has itself been accused of ‘spinning’ Chappell’s ruling as a victory, given that bosses have been ordered to revise some claims as they are not supported by competent and reliable scientific evidence.
However, this only applied to a “fraction” of its claims, stressed POM.
“The FTC critically failed to mention that out of 600 print and outdoor advertisements disseminated, the court found less than 2% of those misleading. POM is appealing those findings.”
Martin added: “We will be appealing those aspects of the ALJ’s ruling that we find objectionable.”
Asked whether the FTC would also be appealing Chappell’s findings, an FTC spokeswoman said: “The FTC has said nothing about appealing the ruling.”
Mary Engle, director at the FTC's Division of Advertising Practices added: "Because one or both parties are likely to appeal certain aspects of the administrative law judge’s Initial Decision, the FTC staff has no comment on POM’s new advertising campaign at this time."
Has POM lost the battle but won the war?
The battle between POM and the FTC has been followed closely by the food and dietary supplements industry and the legal profession alike as it addresses broader questions over the substantiation required for making claims about foods and supplements (as distinct from drugs).
Indeed, many observers believe that while POM might have lost the battle, it has won the war - in that it has successfully challenged the accepted wisdom that firms can only make claims about food or supplements if they are backed at least two ‘gold standard’ human trials.
Crucially, said POM, contrary to the FTC’s position, Chappell concluded that randomized, double-blind placebo-controlled human clinical trials (RCTs) are not essential for supporting structure-function claims and are “not necessarily” even essential for products marketed as reducing the risk of disease.
“The true significance of this ruling is that companies like POM Wonderful can share valuable scientific information and research with consumers; information that gives consumers the opportunity to make healthier choices.”
Click here to read more about the case.
Click here for reaction to the ruling.
Click here to read Chappell's ruling.