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Federal Agencies Target Natural Products—But Give Big Food a Free Pass on False Advertising

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pom_header_imageThe FDA and the FTC won’t allow reasonable, science-based claims about foods and supplements, but they let mega-companies like Coke run wild. Action Alert!

Something is rotten in the state of false advertising:

Coca-Cola POM Wonderful
The product? Pomegranate Blueberry Flavored Juice Pomegranate Juice
The composition? 0.3% pomegranate juice 100% pomegranate juice
The label? “Help Nourish Your Brain!”; big picture of pomegranate “Cheat Death!”; humorous picture of the bottle in a noose
The government? According to the FDA, this label is completely kosher. The FTC hasn’t made a peep. According to the FTC, POM Wonderful needs two Randomized Controlled Trials (a standard typically reserved for drug approval) to support its prior labeling claims—even the ones clearly intended to be humorous.

Two important court cases shed some light on FTC’s special treatment of Coca-Cola, and its targeting of POM Wonderful:

POM Wonderful vs. Coca-Cola: POM Stands Up for Consumers

In 2008, POM Wonderful took Coca-Cola to court over its Minute Maid brand’s “Pomegranate Blueberry” flavored juice. It sued Coke under the Lanham Act, which allows a company to litigate against competitors that misrepresent the nature of their products.

According to POM’s suit, Coca-Cola engaged in false advertising by portraying a product that contains less than 1% of pomegranate and blueberry juice (it’s mostly apple and grape juice) as pomegranate juice. It seems Coca-Cola wanted to cash in on the market largely created by POM Wonderful, but in a way that would let it cut corners and save money (its solution was to slap a “Pomegranate Flavored Juice!” label on apple juice and call it a day).

Questions about this case have made it all the way to the Supreme Court, which now has to decide whether or not POM can proceed with its lawsuit. One issue being debated is whether an FDA-approved label is exempt from a lawsuit under the Lanham Act.

That’s right: the FDA didn’t take action on Coca-Cola’s clearly deceptive labeling because the product’s label is 100% FDA compliant—the agency has no qualms about it whatsoever. In part, this is because the FDA allows companies to label a product based on its flavor, rather than its contents.

Another question being debated by SCOTUS: can a label that is FDA-compliant still be held legally responsible for misleading consumers? If the Supreme Court says “yes,” this could be a potential embarrassment to the FDA: it could illustrate that Big Food companies can easily game the FDA’s system, to the detriment of consumers.

Based on the arguments heard thus far, the Supreme Court seems inclined to let POM proceed for its false advertising lawsuit. But we’ll keep you updated.

FTC vs. POM Wonderful: A Gag Order on Health Benefits

Unfortunately, this isn’t POM Wonderful’s first “false advertising” difficulty—for the past several years, it’s been engaged in an ongoing battle with the FTC over claims made for its own products.

A bit of background: in 2012, an administrative law judge (ALJ) for the Federal Trade Commission upheld POM’s right to make what the FDA would call structure/function claims in ads. Structure/function claims include statements such as “calcium helps build bones,” and don’t directly talk about curing a disease. At the same time, the ALJ found that some of the company’s claims went too far—specifically where POM claimed the juice could help heart disease, prostate cancer, and erectile dysfunction.

Because the ALJ’s decision was a partial victory for both POM Wonderful and the FTC, both sides appealed, which necessitated a ruling from the FTC as a whole. In 2013, the commission took a much more unreasonable line. It found that thirty-four of POM’s forty-three claims were implied disease claims—fifteen more than the ALJ had found. The full commission further ruled that a double-blind random-controlled trial (RCT) is required for any “efficacy” claim and two double blind RCTs for any claim that might seem to be related to a disease. The $35 million spent on peer-reviewed scientific research previously spent by POM was brushed aside because the studies were not RCTs.

Undaunted, POM again appealed, and the case is now being heard by the US Court of Appeals for the District of Columbia Circuit. The FTC is claiming that POM’s advertisements could “mislead consumers into stopping prescribed medical treatments.” In other words, the FTC thinks the American public are idiots.

Seriously, though: what do you think the FTC is more concerned about: consumer health, or Big Pharma’s bottom line?

ANH-USA has filed an amicus brief (a legal opinion submitted to the court by a third party) in the support of POM Wonderful’s suit against the FTC. It’s vital that we participate in this discussion to protect free speech rights for natural products, and ensure your access to information about the therapeutic effects of natural products.

Action Alert: Tell the FTC to Respond to ANH-USA’s Petition! In 2011, ANH-USA filed a Citizen Petition with the FTC alleging that its arbitrary requirements for food and dietary supplement health claims oversteps its jurisdiction, violates the First Amendment, and chills protected speech. Don’t let the FTC continue to ignore citizens asking for change! Please take action immediately!

Take-Action11

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  • Charles Clines

    The FDA and FTC do a poor job of monitoring healthy food…probably because of pressure from the large food and drink companies. Now, we’re consuming GMO food, tons of sugar and unhealthy oils and who knows what else. No wonder, health costs in the U.S. are so high….and the kids growing up today will be even worse off.

  • Christine

    Huh…

    I remember there being a call for boycotting POM Wonderful several years ago because they HAD tested their product, on animals. Rabbits, IIRC.

  • Benson Hill

    I am 64 years young man and it took me 30 years to realize that, all my life I have been manipulated, brainwashed and mind controlled by corrupted government for the most par of the American history including todays government. It is amazing that, larger percent of people depend and trust the government , and not believing that, the real and healthy food is the organic food. All government agencies against common sense, law of nature and most importantly against the Constitution of United States of America-“To protect and serve…the people” contribute to the health disaster we face every day. It became regular practice for FDA ,FTC and many others to intimidate farmers involved in Organic farming with “regulations and recommendations, fees” and non of witch is base on a law. Everything is base on corruption, and we are forced to raise unhealthy generation after generation. All this must stop for the sake of our children and their future.

  • Christine Lund

    Coke has a new ad that says that their Coke tastes better than any other major food chain. What they aren’t saying is that is because they use the highest percentage of syrup in the industry. AT LEAST TELL US THE TRUTH.

  • Sharon

    I’m so entirely sick of the FDA! They are nothing but the Mob for big pharma and anyone else who pays them well. Grrrr….

  • Large concentrated interests use government power and uneven taxation to injure competitors. There is also an agenda to damage health in order to be able to seize more wealth by treating harm that was intentionally caused. Soft drinks are the cause of a lot of dental issues. Coca Cola is another interest controlled by the “Pilgrims Society,” Eugene R. Black of the World Bank was a director in the 1960s and more recently James D. Robinson III of American Express. The Pilgrims are easily the top group in Wall Street, and are the world’s largest wealth trust. The New York Social Diary mentioned Astor property in Manhattan is worth north of $100 billion, while Forbes and Fortune (both Pilgrims Society owned interests) stay silent about it. Jacqueline Astor is married to John R. Drexel IV, a Pilgrims official whose lineage traces to the Earls of Camoy over 700 years ago, and controls Drexel University and large monied interests.