POM not so wonderful, says judge

WASHINGTON, D.C.
May 22, 2012 5:13am

An administrative law judge has dealt a blow to one of the Central Valley’s most powerful water rights holders, but not over water.

The judge has upheld the Federal Trade Commission’s complaint that POM Wonderful LLC, its sister corporation Roll Global LLC, and principals Stewart Resnick, Lynda Resnick, and Matthew Tupper violated federal law by making deceptive claims in some advertisements that their POM Wonderful 100% Pomegranate Juice and POMx supplements (POM products) would treat, prevent, or reduce the risk of heart disease, prostate cancer, and erectile dysfunction.

Mr. Resnick, of Beverly Hills, owns Paramount Farms of Kern County, the nation’s largest grower of pomegranates, almonds and pistachios. In turn, Paramount Farms controls the Kern Water Bank, which was developed by the state in the 1980s as California’s largest underground reservoir, but exchanged in the 1990s for rights to 45,000 acre-feet of water.

Chief Administrative Law Judge Michael Chappell’s ruling bars the representation about the “health benefits, performance, or efficacy” of POM products or any other food, drug, or dietary supplement – unless the representation is not misleading, and the POM respondents possess “competent and reliable scientific evidence . . . to substantiate that the representation is true.” It also would bar them from representing that any such product “is effective in the diagnosis, cure, mitigation, treatment, or prevention of any disease,” including treating, preventing, or reducing the risk of heart disease, prostate cancer, or erectile dysfunction – unless the representation is not misleading, and the POM respondents possess “competent and reliable scientific evidence . . . to substantiate that the representation is true.” The order also would bar the POM respondents from misrepresenting “the existence, contents, validity, results, conclusions, or interpretations of any test, study, or research.”

According to the decision:

• The POM respondents’ violations of federal advertising law were serious because their claims “pertained to serious diseases and dysfunction of the body, including cancer,” and because consumers were unable to evaluate whether the claims were true or supported by the clinical studies cited in the ads.

• The evidence demonstrated that reasonable consumers would interpret the POM respondents’ advertisements as claiming that drinking eight ounces of POM Juice daily, taking one POMx pill daily, and/or taking one teaspoon of POMx Liquid daily treats, prevents, or reduces the risk of heart disease, prostate cancer, and/or erectile dysfunction, and/or is clinically proven to do so.

• Expert testimony demonstrated that there was insufficient competent and reliable scientific evidence to support claims that POM products treat, prevent, or reduce the risk of heart disease, prostate cancer, or erectile dysfunction, or are clinically proven to do so.

While Judge Chappell ruled that some of the POM respondents’ advertisements made the unsubstantiated claims, he found that with regard to some of their other ads, “the preponderance of the evidence fails to demonstrate that such advertisements would reasonably be interpreted by consumers as containing such claims.”

Filed in September 2010, the FTC complaint charged that the POM respondents violated federal law by making deceptive disease prevention and treatment claims. The ads in question appeared in national publications such as Parade, Fitness, The New York Times, and Prevention magazines; on Internet sites such as pomtruth.com, pomwonderful.com, and pompills.com; on bus stops and billboards; in newsletters to customers; and on tags attached to the product. POM Wonderful Pomegranate Juice is widely available at grocery stores nationwide. POMx pills and liquid extract are sold via direct mail.

The FTC complaint alleged that the POM respondents’ heart disease claims were false and unsubstantiated because many of their scientific studies did not show benefits from using POM products for treating or preventing heart disease. It alleged that the prostate cancer claims were false and unsubstantiated because, among other reasons, the study the POM respondents relied on was neither “blinded” nor controlled. Finally, it alleged that the erectile dysfunction claims were false and unsubstantiated because the study on which the company relied did not show that POM Juice was any more effective than a placebo.

The judge’s decision is subject to review by the full Federal Trade Commission on its own motion, or at the request of any party. The Initial Decision will become the decision of the Commission 30 days after it is served upon the parties, unless a party files a timely notice of appeal – and thereafter files a timely appeal brief – or the Commission places the case on its own docket for review or stays the effective date of the decision.