The Federal Trade Commission (FTC) is proposing updates to its labeling and packaging requirements under the Fair Packaging and Labeling Act (FPLA), including deleting specific requirements for commodities advertised using terms such as “introductory offer,” “cents off,” and “economy size.” The proposed changes would also modernize place-of-business requirements,
The name of POM Wonderful, LLC (“POM”) will now forever be linked to some important advertising rulings that are not only of central significance to the food industry, but have broader advertising significance as well. We are reminded of those actions today because POM’s advertising claims touting health benefits of pomegranate juice resulted in a ruling by the D.C. Circuit Court of Appeal upholding in part a January 2014 Federal Trade Commission (“FTC”) decision on POM’s health claim advertising, but rejecting one of the remedies of most concern to industry as a whole: a requirement that claims be supported by two (not one) well controlled, randomized clinical trials.
A statement by FTC Chairwoman Edith Ramirez rejected the notion that the Commission would be precluded from requiring two clinical trials in other circumstances. Chairwoman Ramirez explained that this court decision affirmed the January 2014 FTC decision that the marketers of POM Wonderful 100% Pomegranate Juice and POMx supplements deceptively advertised that the products could treat, prevent, or reduce the risk of heart disease, prostate cancer, and erectile dysfunction, and were clinically proven to have such benefits. She noted that the court did not uphold the FTC order requirement for two randomized well controlled human clinical trials by POM in that case. However, she explained that the court did affirm the FTC’s order requiring POM to have at least one such study before making disease prevention or treatment claims, and held out the possibility that two might be warranted in other cases.
POM of course was not just the recipient of a claim about allegedly false advertising claims. POM previously challenged successfully a competitor making “pomegranate” juice claims, resulting in an important 8 to 0 U.S. Supreme Court ruling in POM Wonderful LLC v. The Coca-Cola Company, 133 S. Ct. 2224 (Jun. 12, 2014). In that case, the Court ruled that regardless of whether a 100% juice product complies (or not) with Food and Drug Administration (“FDA”) labeling regulations under the federal Food, Drug and Cosmetic Act (“FDCA”), a competitor’s false advertising case under the federal Lanham Act could still proceed. Continue Reading POM-eled: POM Wonderful, The FTC and Competitor Challenges (Hint – It’s All About Consumer Deception)
In the advertising world, we know that deception lies in the eyes of the beholder. Agencies like the Federal Trade Commission (FTC), or self-regulatory bodies like the National Advertising Division (NAD), legally stand in the shoes of the consumer, in the absence of consumer perception studies. In private litigation, however, the question of consumer perception
On November 25, 2014, the Food and Drug Administration (FDA) released final regulations implementing nutrition labeling requirements for retail food establishments. The regulations implement Section 4205 from the Patient Protection and Affordable Care Act, which requires chain restaurants and similar retail food establishments to provide consumers with more nutrition information. From an advertising perspective, the
