In a complaint filed in a federal court in Georgia on February 16, plaintiff W Rex Templeton Jr claims POM misled shoppers by claiming “special health benefits” about its products “where such products do not, in fact, contain said benefits”.
POM, which has also been targeted in similar class action suits in Florida, Kansas, Missouri and California, says it has spent millions on clinical research to back up the claims it makes about its juices and other products.
However, in the latest action*, brought on behalf of all Georgia consumers who purchased POM Wonderful pomegranate products from September 2006 to the present, the plaintiff accuses it of the “knowing and willful deception of Georgia consumers”.
He also alleges unjust enrichment, because POM benefitted financially from its alleged “misrepresentations and false statements”, adding: “It would be inequitable for Defendants to retain the monies received from Georgia consumers as a result of Defendants' unfair, deceptive, and misleading business practices.”
POM’s claims are deceptive and misleading
POM ads promoted the consumption of POM Wonderful pomegranate products as having “special health benefits, including but not limited to the prevention mitigation, and/ortreatment of the following: atherosclerosis; blood flow/pressure; prostatecancer; erectile function; cardiovascular disease; reduce LDLcholesterol; and other age-related medical conditions”, said the complaint.
But it added: “Defendants’ disease prevention and mitigation claims at issue in the lawsuit case are deceptive, and misleading because they had no reasonable basis that substantiated these representation at the time the representations were made.”
FTC vs POM
POM, which said it couldn't comment on this case, has been accused of overstating the health benefits of its products on several occasions in recent years.
The first high-profile challenge came from the US National Advertising Division of the Council of Better Business Bureaus (NAD), which argued in 2005 and 2006 that POM could not substantiate its claims.
In 2009, UK ad watchdog the Advertising Standards Authority (ASA) concluded that POM’s ‘Cheat Death’ ads were misleading .
In 2010, the US regulators stepped in, with the Food and Drug Administration (FDA) sending POM a warning letter in February alleging that POM was making unauthorized disease claims.
POM: FTC case is completely unwarranted
Seven months later the Federal Trade Commission (FTC) filed an administrative complaint accusing POM of making false and unsubstantiated advertising claims that its products could prevent or treat heart disease, prostate cancer, and erectile dysfunction.
POM immediately dismissed the case as “completely unwarranted” and accused the FTC of “wasting taxpayer resources to persecute the pomegranate”.
It added: “We believe the commission is acting beyond its jurisdiction, exceeding its authority, and creating a new regulatory scheme that attempts to treat our juice as a drug, which it is not.”
Lawyer: FTC richly deserves to lose
The verdict in the FTC’s case against POM Wonderful is expected next month and will be watched closely by food/supplements manufacturers and lawyers alike as it addresses broader questions over free speech and health claims.
An FTC spokeswoman told NutraIngredients-USA: “1pm on March 6, 2012, is now the date and time set for closing arguments.”
If administrative law judge Michael Chappell affirms the FTC’s complaint, a proposed order would require pre-approval from the FDA before POM is permitted to make future claims.
However, commenting on the case last year, food law attorney Jonathan Emord said that the FTC had overstepped the mark and “richly deserves to lose… If the FTC prevails, this case will establish a very speech restrictive precedent."
*The class action complaint was filed in the US District Court in the southern district of Georgia, Savannah Division, on Thursday, February 16 against Roll International Corporation and its subsidiary POM Wonderful.