Choose Your (Advertisement) Words Wisely: One Company’s Battle with the FTC Over Freedom of Speech in Advertising

Recent FTC target, Pom Wonderful, LLC, is forging ahead in a tough battle with the Federal Trade Commission and Federal Courts over what it claims is an invasion of its freedom of speech in advertising. In 2013, the FTC slammed Pom for advertisements of its pomegranate juice that claimed the juice could benefit people suffering from certain medical conditions and diseases, such as heart disease and prostate cancer. The FTC decided Pom had not performed enough scientific research to back its claims, so it found the advertisements to be “misleading.”  The FTC then set a high standard for Pom to meet before it would be allowed to make such claims in the future — some say too high a standard. Specifically, the FTC now requires the company to have at least two double-blind, randomized, placebo-controlled clinical trials before it can make similar claims. Although Pom has conducted multiple studies and questionnaires to bolster its claims that its pomegranate juice and dietary supplements provide health benefits, it continues to fight to be permitted to promote and advertise those benefits.

On May 2, 2014, Pom implored a Washington D.C. Federal Circuit Court panel to strike down the FTC’s restrictions and requirements barring it from making health and disease-related claims in its juice advertisements. Pom appealed to the Circuit Court arguing the FTC is holding it to an “impossible” standard before it would be allowed to make health claims. Interestingly, the Court signaled it would likely uphold the FTC’s ultimate conclusion that Pom made misleading claims about the health benefits of its juices, but it also hinted the FTC’s restrictions and requirements on future Pom advertising may be too broad and might threaten the company’s freedom of speech in advertising. For example, the Court suggested that if Pom had at least one study indicating its juice could help to improve a certain aspect of health or fight some disease, it might be a First Amendment violation to prevent Pom from simply conveying that information to the public.

As consumer interest in the health benefits of all types of food and beverage products is on the rise, surely the Federal Court’s ruling in this action will hold significance for future advertising practices. Of course, any company would want to advertise any potential health benefits of its products, but as this example demonstrates, it is possible to be too aggressive, and thereby “misleading,” by praising your product or its supposed health benefits too much. Certainly, the Federal Court’s ultimate ruling will provide additional guidance on the line between free dissemination of scientifically-supported information and overzealous advertising.

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