POM Wonderful isn't done fighting the Federal Trade Commission, even in the wake of Monday's smackdown by an FTC administrative-law judge that puts the squeeze on POM's advertising and marketing efforts with regard to health claims. Not by a long shot.
In an extraordinary thumb in the eye of the federal regulatory agency, POM Wonderful greeted online readers of the New York Times and other media websites this morning with a defiant volley of opposition to what the judge handed down.
"FTC v. POM. You be the judge" is the rallying cry for in the brand's FTC response campaign. Clicking on the ad takes readers to a new website, pomtruth.com, which selects quotes from the judge's decision that, taken out of context, appear to favor POM's argument, such as, "Pomegranate juice is a natural fruit product with health promoting characteristics. The safety of pomegranate juice is not in doubt."
Go further and you hit a page headlined: "Out of 600 print and outdoor ads, the judge found less than 2% misleading*. Here are some of the other 98%. ... *And we're fighting for those other 2%."
Those ads include one with a noose around the neck of one of its curvy bottles, with the caption, "Cheat death." The ad touts the benefits of antioxidants in the juice that help guard the body "against free radicals, unstable molecules that emerging science suggests aggressively destroy healthy cells in your body and contribute to disease."
The FTC judge ruled that POM must refrain from public claims in its advertising or marketing that the fruit juice helps cure or mitigate specific diseases such as cancer, but said that it can continue to promote pomegranate beverages as good and healthy for the body in certain ways. POM had already backed off its aggressive "healthy for you" positioning as a result of its FTC battles, adopting a positioning that cast pomegranates and their juice as sexy.
After POM Wonderful got word of the FTC ruling on Monday, it tried to spin it with a press release declaring that the 335-page decision was a victory for the entire natural-products industry. But within a few hours, the agency released the ruling to the public, and it became clear that the juice-maker had lost the case.
David Vinjamuri wrote in an op-ed column for Forbes that POM's response to the FTC's cease-and-desist order barring it from making health-related claims is "disturbing. The thousand-odd word press release essentially claims victory without even mentioning the cease and desist order, based on the fact that the judge did not throw out every single POM Wonderful claim and did not require FDA prescreening of future advertising."
Now, POM's getting even more aggressive with an online campaign running not only on the New York Times' website but also latimes.com, cnn.com and huffingtonpost.com. POM Wonderful parent Roll Global's press release on today's web campaign — advertising about its advertising — notes:
"We will continue to share the valuable health information of our products with consumers, and have decided to share with consumers these benefits using direct quotes from the FTC Administrative Law Judge's ruling," said Stewart A. Resnick, President of Roll Global. This week, the FTC issued a press release that oversimplified the ruling, which found a fraction of POM's advertisements misleading. The FTC critically failed to mention that out of 600 print and outdoor advertisements disseminated, the court found less than 2% of those misleading. POM is appealing those findings. The FTC's objective was to shut down all of POM's health benefit advertising and to use POM to impose a new standard of double-blind, randomized, placebo-controlled studies and preapproval by the FDA on all food companies desiring to make health claims. In these efforts, the FTC failed. Contrary to headlines in the media that have over-simplified and in some cases, mischaracterized, the ruling, POM Wonderful is not under an order to halt advertising of the science that supports the health benefits of the pomegranate and 100% pomegranate juice. Health benefit claims ranging from its prostate and erectile health claims to general claims about the benefits of antioxidants found in pomegranates and pomegranate juice were deemed to be supported by "competent and reliable scientific evidence" in the ruling.
“It’s extremely unusual,” August Horvath, partner at Kelley Drye, a New York-based firm, commented. “And I consider it ill-advised …The things that Pom has won on, that it is crowing about here — they could still lose on those matters, and a good way to do it is to make the FTC really angry. And that’s what they might be doing.”
Today, the FTC kept its cool. “Because one or both parties are likely to appeal certain aspects of the administrative law judge’s Initial Decision, the FTC staff has no comment on Pom’s new advertising campaign at this time,” an agency spokeswoman told brandchannel.
See more of the POM ads its parent company is defending (with quotes lifted from the judge's FTC ruling) below, and tell us what you think below.