As we reported last week, Federal Trade Commission (“FTC”) Chief Administrative Law Judge D. Michael Chappell sided with the FTC when he found that POM’s marketing campaign – the one that reminded us of the alleged “wonderful” capability of pomegranate juice to treat, prevent, or reduce the risk of certain medical conditions – was in fact “deceptive.” In particular, Judge Chappell found that POM’s claims that its juice can ward off and treat heart disease, prostate cancer and even erectile dysfunction lacked the scientific “juice” to support these statements.
Unlike other companies that have been recently embroiled in this same type of fight with the FTC POM is not going away without a fight. In fact, it has poked a big stick in the eye of the FTC with a new advertising campaign which omits any mention of its failure to substantiate its claims of disease prevention and treatment, and instead “illuminates the facts and opinions” in the judge’s decision which emphasize the health “benefits” of pomegranate juice.
Using excerpts pulled directly from Judge Chappell’s 335 page decision, POM’s “new” marketing approach touts the facts that pomegranate juice “supports prostate health” and “provides a benefit to promoting erectile health and erectile function.
POM and the FTC have until June 18 to appeal Judge Chappell’s decision. And based on its actions thus far, it is likely that POM will in fact appeal the ruling. In the meantime, it is clear that POM will not go down without a fight, and will challenge the limits of the FTC’s power to regulate the content of its advertising campaigns. This strategy is, however, not without risks. Such actions may cause the FTC, at some later date, to seek corrective advertisements and penalties if it finds that POM mischaracterized the judge’s ruling in its advertising. Stay tuned, as this fight has likely just begun.