Appellate judges Friday taste-tested a pomegranate juice maker’s health claims.
In an intriguing case about science, truth and advertising, judges on the U.S. Court of Appeals for the District of Columbia Circuit repeatedly pressed the attorney for California-based Pom Wonderful. Judicial skepticism abounded about some of the company’s health-based ads.
“I don’t understand how you can regard that as not misleading,” Chief Judge Merrick Garland told Pom Wonderful’s attorney, citing a particular advertisement’s wording.
But while some of Pom Wonderful’s ads raised eyebrows, some proposed solutions raised questions. In particular, the Federal Trade Commission’s requirement that future Pom Wonderful health claims be supported by two “randomized and controlled” clinical trials could effectively suppress free speech, Judge Douglas Ginsburg suggested.
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Pom Wonderful says the required studies would be exorbitantly expensive.
“This is an exceptionally strong remedial measure,” said Pom Wonderful’s appellate attorney, Thomas Goldstein, adding that it would be “essentially saying you can’t make any health-related claims.”
Another potential solution is to require disclaimers to offset health claims, though Goldstein said these, too, might amount to “speech restrictions.”
A lot is at stake for Pom Wonderful and, potentially, for other companies regulated by the FTC. Perhaps because of this, the fifth-floor courtroom was packed Friday morning and the oral argument went more than twice as long as planned.
From 2002 to 2010, sales for Pom Wonderful juice and POMx pills, described by the company as a pomegranate supplement, totaled close to $250 million, according to the FTC. The privately held company prides itself on having grown the pomegranate market, with the roughly 32,000 acres of pomegranates planted in California a tenfold increase over the planted acreage in 1976.
Health claims have anchored the company’s aggressive marketing.
Running in magazines from Playboy to Men’s Health, Pom Wonderful ads have included vivid language such as “Cheat Death” and “Drink to Prostate Health,” as well as myriad references to scientific studies.
One ad, for instance, declared that “a clinical pilot study” showed that a daily 8-ounce glass of Pom Wonderful reduces plaque in the arteries up to 30 percent. The FTC countered that the study was “tiny and methodologically flawed.” Much larger, double-blind studies “showed no significant plaque-reducing benefits at all,” according to the trade commission.
In another ad that regulators said was based on “unreliable science,” Pom Wonderful claimed that men who consumed the pomegranate products “reported a 50 percent greater likelihood of improved erections,” compared with those who took a placebo.
‘“I’m out to save prostates,’” Garland read from one Pom Wonderful ad, before asking, “Save them from what?”
After a trial whose transcript spanned some 3,300 pages, an FTC administrative trial judge previously found that 19 Pom Wonderful claims were false or misleading. In January 2013, the full Federal Trade Commission went further, concluding that 36 ads or promotional materials were false or misleading.
“We’re talking about a pattern and practice that occurred over seven years,” FTC General Counsel Jonathan E. Nuechterlein told the three-judge panel Friday morning. “This company has a record of distorting scientific results.”
Goldstein countered that the company’s ads have matured.
“The ads that are so concerning haven’t run for nine years,” Goldstein said.
Several judges noted Friday that the First Amendment protects commercial speech, as well as the political speech that people often think of first. In a crucial 1980 Supreme Court decision that involved a New York state utility company’s advertising, justices stressed that the protected commercial speech must not be misleading.
“The whole game in advertising, obviously, is to sell products,” Nuechterlein said, “but you have to be forthright about it.”
The case Friday is different from the one the U.S. Supreme Court heard last month, in which Pom Wonderful wants a green light to sue Coca-Cola for false advertising. In that case, Pom Wonderful officials complain, the Coca-Cola brand of a drink labeled “Pomegranate-Blueberry” juice contains less than 1 percent pomegranate juice