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What POM Doesn't Want You to Know About Its Fight With the FTC

POM Wonderful has just picked a fight it will lose with the FTC. The juice marketer is suing the FTC claiming free speech violations, but its claims are far-fetched. Specifically, POM alleges that the FTC is requiring:
... prior FDA approval [for new ads] regardless of whether or not the claims are true or supported by competent, reliable scientific evidence.
... The FTC never before required prior approval of advertising statements by any agency or the FDA.
What the suit -- and much of the news coverage of it -- doesn't say is that the FTC was previously investigating POM for false advertising claims, that it sued to prevent knowledge of that probe being made public, and that the FDA had previously cited POM for falsely claiming that its drink prevents prostate cancer, atherosclerosis and erectile dysfunction. Nor does POM mention that it's been cited for false advertising in the U.K. Nor that it has twice cited by the National Advertising Division of the Council of Better Business Bureaus.
POM claims the FTC is unlawfully requiring two "well-controlled" studies to support health claims made in ads, and that this goes beyond the FTC's mandate of policing misleading advertising. Let's take a look at how "well-controlled" the studies were that POM was using to make its cancer, artery-thickening, and ED claims:
  • The prostate cancer study had just 55 men in it.
  • The atherosclerosis study had 19 subjects.
  • The cancer study had 46 men.
You don't need to know much math to realize that this is far too few people to be statistically significant. In a 50-person study, one person equals 2 percent of all the results. You'd only need a couple of outliers to swing the results dramatically. In a 19-person study -- like POM's atherosclerosis test -- each subject represents over 5 percent of all the results.

Furthermore, it is not the FTC's policy to clear ads in advance. The FTC confirms this on its FAQ page:

FTC staff cannot clear your ads in advance. However, there is guidance to help you comply with the law. Information about advertising particular kinds of products (for example, foods, dietary supplements, or "environmentally friendly" merchandise), ...
So why is POM doing this? Sure, it may gain some temporary PR highlighting its fight for "natural" drinks. But this is more to do with POM's lawyer-driven, scorched-earth management culture. As this article, this article and this article make clear, the company basically sues everyone it meets.

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