The two have served actions on each other that will be adjudicated upon next year. The FTC administrative complaint that will be heard by a judge within the FTC in May 2011 says POM’s antioxidant-based claims are not backed in the scientific literature.
POM alleges the FTC substantiation standards are inappropriate for nutrition science and curb free commercial speech as laid out in the First Amendment of the US Constitution. That action will also be heard next year, although the FTC has moved to have it dismissed.
In the festive season, NutraIngredients-USA.com presents a discussion with two prominent food attorneys on the merits of those biblical fruit-based cases. Has POM gone too far in its claim making? Are the FTC standards fair? How closely are the two cases linked?
New York-based Marc Ullman of Ullman, Shapiro and Ullman, and Colorado-based James Prochnow, from Greenberg Traurig, slake their legal thirst on the complex case that has fast become a defining moment in the regulation of healthy foods messaging.
POM v FTC
Ullman highlights the difficulty POM is going to have in demonstrating that the FTC has inappropriately established a two-clinical trial standard to back claims as the agency has stated there is no such standard, merely references to two trials in individual settlements with Kellogg’s, Nestlé and Iovate Health Sciences.
“I think POM has a very hard case,” Ullman said, noting the case had the potential to affirm the two-trial standard, even as POM seeks to have it abolished, as it may empower the FTC to independently create such a rule if granted such authority by Congress, as has been mooted.
“The FTC could come back and say we don’t understand why industry objects to this so strenuously – a court has already said there is nothing wrong with us requiring two studies.”
FTC v POM
Prochnow highlights the ambiguity surrounding the area by noting that in the FTC’s own complaint against POM, there is no mention of two clinical trials.
“They don’t ask for the two clinical studies that POM Wonderful was basically complaining of in their lawsuit and that will present a problem for any plaintiff,” he said.
“Consent degrees do not apply to the whole industry. They are very individual situations."
"One could guess that the reason [POM} took the position here is that they wanted to undercut the lawsuit filed against them in the Federal court...Those things don't seem to be coincidental."