Pom Wonderful has added another suit to its already busy docket. This time, the company is going up against the Federal Trade Commission (FTC) and the FTC is not backing down. Pom’s complaint, filed in the US District Court for the District of Columbia, alleges that the FTC has overstepped its boundaries with the Food and Drug Administration (FDA) by creating a new standard for the evaluation of deceptive advertising for claims made by food, beverage, and dietary supplement producers.

In the US District Court for the District of Columbia, Pom is fighting to save the millions of dollars it has invested in research about the disease-fighting effects of pomegranate juice and future dollars to be spent on advertising. Under the FTC’s new requirements, all advertisers must first obtain FDA approval before making claims about the health benefits and disease-fighting capabilities of food, beverages, and dietary supplements. Additionally, the FTC is requiring clinical studies for non-disease related claims.

Pom believes that the FTC has overstepped its authority because the FTC has never before required such approvals for advertising statements. Pom’s attorney finds the new standard unreasonable due to the approval process now required for products that are sufficiently supported by “competent, reliable scientific evidence.” The company argues that the FTC’s actions have not only changed the definition of deceptive advertising, but have also disrupted Pom’s business.

In response, the FTC filed an administrative complaint against Pom for deceptive advertising regarding disease prevention and treatment claims. The claims revolve around Pom’s advertisements promoting the pomegranate juice’s ability to treat heart disease, prostate cancer, and erectile dysfunction disorder. At the hearing, scheduled for May 24, 2011, Pom will have the opportunity to argue why it should not be ordered to stop making its health claims.

These suits comes on the heels of the jury verdict in favor of Welch Foods, Inc. after Pom sued the company for advertising a juice that contained one ounce of pomegranate juice per 64-ounce bottle as “100 percent white grape pomegranate juice.” Pom argued that the use of the term “pomegranate” in the juice name was a deceptive attempt to capitalize on Pom’s ad campaign touting the health benefits of pomegranate juice. The jury decided that Welch’s advertising was deceptive, but that Welch’s deception had no negative impact on Pom’s sales or goodwill. Despite what many might consider a loss, Pom’s president, Matt Tupper considered the verdict a victory for “consumers who are constantly bombarded by deceptively labeled products marketed by big juice companies.”

Welch, however, was not the first of Pom’s lawsuits to defend the name of the pomegranate. Pom has also sued The Coca-Cola Co. and Tropicana Products, Inc. over their pomegranate juice drinks. Unfortunately for Pom, those two cases had similar outcomes as the Welch case, with the judges holding that Pom could not pursue claims regarding the labeling and naming of products where that authority rests with the FDA. Pom is, no doubt, hoping for an outcome more in its favor with the current FTC cases.

Pom’s case against the FTC has been assigned to Judge Richard Roberts and the outcome could have a large impact on the regulations surrounding deceptive advertising. It will be interesting to see how the Pom v. FTC and the FTC v. Pom cases come out and which will be decided first.

Arent Fox is monitoring these cases. For more information regarding these cases and other cases involving deceptive advertising, please contact Anthony V. Lupo or Sarah Bruno.