Pom Files Suit Against FTC

The Federal Trade Commission has of late issued subpoenas and opened investigations of many marketers. But Pom Wonderful, makers of pomegranate juice, on Sept. 13 filed a lawsuit against the FTC, claiming the agency has created new regulations for the evaluation of deceptive advertising that squash the company's first-amendment rights.

According to Pom's legal filing, the FTC standard requires marketers to get approval from the U.S. Food & Drug Administration before making any claims about the health benefits of food, beverages or dietary supplements. "Until now, the FTC had regulated only 'deceptive' speech or advertising. The FTC never before required prior approval of advertising statements by any agency or the FDA. Invoking such a requirement, in effect, constitutes a ban on both deceptive speech and non-deceptive speech, the latter of which is protected by the first amendment," the complaint said. Pom's filing adds that the FTC's "new standard" and set of requirements to the food industry were "represented" to Pom and the food industry at large, not through the process of rule-making, but through two consent orders against Nestle USA and Iovate Health Sciences published in July. Nestle in the consent order agreed to drop allegedly deceptive advertising claims about the health benefits of its Boost Kid Essentials drink.