On January 30, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld claims of false advertising by POM Wonderful LLC (“POM Wonderful”), finding that the government could prohibit the pomegranate juice company from advertising its products as being effective in fighting heart disease, prostate cancer and erectile dysfunction.  The court sided with the Federal Trade Commission (“FTC”) on most issues in the case, while rejecting POM Wonderful’s argument that the advertisements and claims were protected by the First Amendment.

However, the court invalidated a requirement imposed by the FTC that POM Wonderful obtain support from two clinical trials before making disease-fighting claims, instead holding that one clinical trial was sufficient, and put the burden on the FTC to show why an additional study would be needed.  The court rejected POM Wonderful’s claim that even performing one clinical study is too onerous a requirement, but held that a requirement of two clinical studies could have the effect of denying consumers “useful, truthful information about products with a demonstrated capacity to treat or prevent serious disease.”

FTC Chairwoman Edith Ramirez issued a statement on the decision, saying, “Today’s decision by the D.C. Circuit is a victory for consumers.  It is in keeping with established law that advertisers who market products for serious health conditions must have rigorous science to back up those claims.  The court specifically recognized that this applies to food and dietary supplement marketers such as POM.  It also held that requiring a randomized, well-controlled human clinical study for future disease benefit claims is an appropriate remedy based on POM’s conduct.”