“Native Advertising” has been on the radar screen for several years, with consumer groups, businesses and regulators alike considering what the rules of the game should be to avoid deception as the nature of publishing and advertising continue to evolve at a dizzying pace. Those rules became clearer on December 22, 2015, when the Federal
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. …