Dual defeats in recent months haven’t soured Pom Wonderful LLC’s fight in court to defend health claims about its 100 percent pomegranate juice.
On June 18, in a case brought by the Federal Trade Commission, Pom appealed a ruling by an administrative law judge that some of its advertisements touting the health benefits of pomegranate juice were false and misleading. Pom brought in Edward Lazarus, former chief of staff at the Federal Communications Commission, to handle the appeal. The FTC also has appealed the ruling.
In related multidistrict litigation in Los Angeles, Pom has opposed certification of a nationwide class of consumers who argue that its health claims are false and misleading. Pom also signaled plans to ask for a rehearing, or a hearing en banc, of last month’s ruling by the U.S. Court of Appeals for the Ninth Circuit that The Coca-Cola Co. did not infringe its trademark in labeling its Minute Maid subsidiary’s Pomegranate Blueberry juice.
In the FTC action, Judge Michael Chappell found on May 21 that Pom lacked scientific proof that an 8-ounce glass of pomegranate juice, or the supplement equivalent, would treat, prevent or reduce the risk of heart disease, prostate cancer or erectile dysfunction. Claims to that effect in some of Pom’s advertising and marketing were false and misleading, he concluded. He ordered Pom, principals Stewart and Lynda Resnick and former Chief Executive Officer Matthew Tupper to cease and desist from promoting such claims.
However, Chappell rejected the FTC’s broader argument that Pom should be required to secure approval from the U.S. Food and Drug Administration before making health claims. Chappel called that “unnecessary overreaching.”
On May 31, Pom brought in Lazarus and Michael Small, senior counsel at Akin Gump Strauss Hauer & Feld in Los Angeles, to appeal the order. Lazarus, formerly at Akin, was named to the FCC post in 2009. He left that position earlier this year.
Lazarus referred an e-mail seeking comment to Kristina Diaz, associate general counsel at Roll Law Group, the legal division of Roll Global LLC, Pom’s parent company. Diaz did not respond to a request for comment.
At the time of the FTC ruling, Craig Cooper, chief legal officer for POM Wonderful LLC, issued this statement: “Through its lawsuit against POM, the FTC tried to create a new, stricter industry standard, similar to that required for pharmaceuticals, for marketing the health benefits inherent in safe food and natural food-based products. They failed,” he said. “While we are still analyzing the ruling, it is clear that we will be able to continue to promote the health benefits of our safe, food products without having our advertisements, marketing or public relations efforts preapproved by the FDA and without having to rely on double-blind, randomized, placebo-controlled studies, the standard required for pharmaceuticals. We consider this not only to be a huge win for us, but for the natural food products industry.”
In the FTC action, Pom also is represented by John Graubert, a partner at Washington’s Covington & Burling who was principal deputy general counsel and acting general counsel at the FTC; and entertainment litigator Bertram Fields of Greenberg Glusker Fields Claman & Machtinger in Los Angeles.
“The FTC has an important history of protecting consumers against entities selling snake oil, misrepresenting ingredients, or making generalized claims that their products are ‘proven’ to cure various medical ailments without credible scientific backing,” Lazarus wrote.
“But POM fits none of these categories,” he continued. “It sells a food that has been thought to promote health for thousands of years. And it has marketed its products not by declaring that they are proven to cure heart disease or prostate cancer or impotence, but rather by tailoring its ad campaigns to what tens of millions of dollars’ worth of scientific studies conducted by highly respected scientists at some of the world’s most prominent public health research institutions have actually shown.”
Lazarus said the ruling raised First Amendment problems and noted that Chappell found that the majority of the ads at issue were not objectionable. He also objected to the “sweeping 20 year” injunction order, which applies to Roll Global’s other products, such as Fiji Water and Paramount pistachios.
“Roll Global has been selling these other products for many years without ever embarking on such a combined research and marketing program,” Lazarus wrote. “And the record contains no evidence that the Roll Global companies would likely start similar actions with respect to their many other commodity food and drink products that would be covered by the proposed order.”
The FTC, in its own appeal, argued that the order didn’t go far enough — that Pom should have been required to comply with FDA regulations in promoting the health benefits of its pomegranate juice. The FTC maintained that Chappell should have concluded that all the ads at issue were false and misleading and imposed a more stringent scientific requirement of Pom.
FTC spokeswoman Betsy Lordan had no comment on the brief.
Oral argument in the FTC appeal is scheduled for Aug. 23.
Pom cited the ruling in the FTC case in opposing a move to certify a class of millions of consumers in the multidistrict litigation over the sales and marketing of its pomegranate juice. The plaintiffs motion, filed under seal on May 18, was brought on behalf of consumers who purchased the juice between October 2005 and September 2010.
In its opposition, filed on June 25, Pom attorney Diaz argued that the Ninth Circuit’s Jan. 12 ruling in Mazza v. American Honda Motor Co. prevented the plaintiffs from certifying a nationwide class under California law. Furthermore, Diaz wrote, a class of California consumers should not be certified because Pom’s ads, and the reasons why consumers bought its product, varied too much. As an example, Diaz cited the case brought by the FTC, which challenged only 43 of about 600 ads.
“Ultimately, the ALJ [administrative law judge] found that less than half of the challenged 43 ads lacked sufficient scientific substantiation for the ‘implied’ claims allegedly made in those ads (which findings POM is appealing),” Diaz wrote. “Plaintiffs cannot skip this required level of detailed analysis for the advertising they challenge — yet have offered no plan on how to address these issues on a class wide basis.”
A hearing on the class certification issue is scheduled for Aug. 13.
The lead plaintiffs counsel in the litigation, Michael Kelly, of Kirtland and Packard in Los Angeles, did not respond to a request for comment.
Meanwhile, Pom plans to appeal a Ninth Circuit ruling in its trademark dispute with Coca-Cola. The ruling on May 17 was the first appellate decision in a series of trademark infringement cases Pom has brought against its juice competitors, including Welch Foods Inc., Ocean Spray Cranberries Inc. and Tropicana Products Inc.
In the Coca-Cola case, Pom, represented by Seth Waxman, chairman of the appellate and Supreme Court litigation practiced at Wilmer Cutler Pickering Hale and Dorr, had alleged that its Pomegranate Blueberry drink contained little to no pomegranate juice but, instead, was more than 99 percent apple and grape juice. The Ninth Circuit upheld a lower court ruling in finding that Pom’s claims were precluded by the U.S. Food, Drug and Cosmetic Act and FDA regulations governing product labeling.
Pom is expected to file its rehearing request on July 2, according to court documents.
Contact Amanda Bronstad at email@example.com.