Is Advertising Protected Speech? POM Wonderful v. FTC

By Joseph A. Nicholson, CLASS Member, 2010-11

The Federal Trade Commission plays an important role in protecting consumers by investigating and prosecuting individuals and companies that use deceptive practices. But is the FTC going too far in requiring FDA approval of certain health-related claims associated with products even if the claims are supported by reputable scientific consensus and are therefore not “deceptive?” 

POM Wonderful, the maker of a pomegranate juice beverage, certainly thinks so. In September, the company filed suit against the FTC in federal district court seeking to curb the agency’s new policy. Specifically, the FTC now requires claims that represent a product treats, mitigates, or prevents disease receive prior FDA approval regardless of whether or not the claims are true or supported by competent, reliable scientific evidence.

Obtaining FDA approval is a lengthy and costly process that would prevent many product makers from speaking freely about legitimate benefits of their products. Doing so violates their First Amendment rights, says POM, and is beyond the FTC’s authority. POM’s suit comes in response to a complaint filed by the FTC in the Northern District of California seeking to enjoin POM from toting the health benefits of pomegranates in marketing their products.

The litigation between POM Wonderful and the FTC has the potential to reshape the regulation of health claims in consumer products, and has been called “the biggest fight since Ali vs. Frasier.” Underscoring the legal challenge are conflicting consumer interests. The consumer benefits from the restriction of unsound claims, but also relies on advertising to provide information about potentially beneficial products. Waiting for formal approval of claims from the FDA can keep true claims out of the market for too long, and it makes the agency the final arbiter of health decisions many consumers prefer to make themselves. Makers of food, beverages and dietary supplements, and the consumers of these products, will certain want to stay tuned for developments in this case.