POM's New Ads Stick it to FTC, Quoting Judge Out of Contextby
Just days after Chief Administrative Law Judge Michael Chappell of the Federal Trade Commission ruled that POM Wonderful made “false or misleading” claims about the effects of its drink, the pomegranate-beverage maker launched an ad campaign on May 24 that quotes an “FTC Judge” describing the product as a “…Natural Fruit Product with Health Promoting Characteristics.” The ads pull further quotes from the opinion.
POM has bought full-page ads in such newspapers as the New York Times and the Los Angeles Times, as well as home-page takeovers on websites like CNN, the Huffington Post, and the Times home page and health pages online, according to a press release from the company.
Judge Chappell likely didn’t foresee his opinion being used to endorse the product, and POM did not seek approval or inform the Federal Trade Commission about the campaign. Still, “POM would not need the FTC’s permission to quote the judge in advertisements that they produce. The judge’s opinion is public. it’s posted on our site,” says Betsy Lordan, a spokesperson for the FTC.
The quote comes from page 103 of the 335-page opinion. The full quote is: “Pomegranate juice is a natural fruit product with health promoting characteristics. The safety of pomegranate juice is not in doubt.”
The opinion found that there was “insufficient competent and reliable scientific evidence to support the implied claims,” in POM’s advertisements, that the juice can combat conditions such as heart disease, prostate cancer, and erectile dysfunction. “The use of the word ‘implied’ is critical because no direct claims were made,” Corey Martin, vice president of corporate communications at Roll Global, POM Wonderful’s sister company, wrote in an e-mail.
POM goes on to state in the release: “[O]ut of 600 print and outdoor advertisements disseminated, the court found less than 2 percent of those misleading. POM is appealing those findings.” Martin confirms that this means 12 of 600 ads make specific health claims.
“Because one or both parties are likely to appeal certain aspects of the administrative law judge’s Initial Decision, the FTC staff has no comment on POM’s new advertising campaign at this time,” says Mary Engle, director of the FTC Division of Advertising Practices. The initial decision is subject to review by the FTC and becomes the Commission’s decision 30 days after it is served, unless a party files a notice of appeal.
“We will continue to make generalized health claims that are substantiated,” Martin says. “If you look at the ruling, essentially, the judge upheld our right to share scientifically proven health benefits.”
The press release says: “The FTC’s objective was to shut down all of POM’s health benefit advertising and to use POM to impose a new standard of double-blind, randomized, placebo-controlled studies and preapproval by the FDA on all food companies desiring to make health claims. In these efforts, the FTC failed.”
Martin says the company will not disclose spending on the ads, but the campaign “will last as long as necessary to inform the public of the truth.”