The action states there is no need for the courts to wait until a verdict is reached by an FTC Administrative Law Judge for the FTC’s own administrative complaint against alleged misleading POM marketing on May 24. That complaint can be found here.
In the filing lodged by Coburn & Coffman, POM, in re-emphasizing the basis of its earlier action, said the FTC was promulgating “a stealth regulation” that was placing an unfair burden of proof on food marketing by establishing a two-clinical trial standard to back claims.
The FTC has since moved to have that action dismissed, stating no such standard exists as the references to trials were made in individual cases (Iovate Health Sciences, Kellogg’s and Nestlé Healthcare Nutrition) and did not constitute an official standard, and which at any rate, had nothing to do with POM Wonderful.
POM says a verdict should be delivered on this matter before the FTC complaint is heard – something that may please many in the healthy foods and supplements industries who are highly aware of the wide-reaching effect these cases are likely to have on future claim-making.
POM’s lawyers write there is, “no reason why both actions cannot and should not proceed concurrently”.
POM’s action alleged the agency’s claim standards breach free speech principles and were therefore invalid and that it did not have the authority to establish them in the first place.
But POM’s assertion that the FTC’s complaint against its antioxidant-based health claims will not be influenced by their own court battle over what constitutes scientific substantiation and who has the right to establish it, has already been called into question by the judge in another case involving highly litigious POM Wonderful and Pepsi-owned Tropicana.
In that case over pomegranate juice claims the presiding judge called on both parties to submit comments about the FTC complaint.
In an October, 2010, pre-trial hearing, counsel for Tropicana said the FTC complaint could have a "significant bearing" on the case, provoking the judge to call for comments on it.
"Obviously, we disagree as to the significance of the complaint," said POM’s attorney at the time.
The FTC complaint hinge on what it alleges are unsubstantiated claims that POM's juices and supplements could benefit atherosclerosis; blood pressure; prostate cancer; erectile function; cardiovascular disease; cholesterol levels and other age-related medical conditions.
SymphonyIRI data shows POM Wonderful sold just over $35m in juice at supermarkets, drugstores, gas/convenience stores and mass market retailers excluding Wal-Mart in the 12 months to September 5, 2010 – a 6.74 percent drop on the previous 12 months.