Rise in Consumer Litigation Challenging Advertising and Labeling Claims

Food and dietary supplement manufacturers should be cautioned about the recent rise in consumer litigation. Over the past several years, there has been a noticeable increase in lawsuits by consumers aiming to challenge advertising and labeling claims for dietary supplements and food products.  Most recently, on February 16, a class action lawsuit was filed in a federal court in Georgia, alleging that POM Wonderful, LLC (“POM”) misled consumers by claiming “special health benefits” about its products “where such products do not, in fact, contain said benefits.” The complaint alleges that POM knowingly and willfully deceived Georgia consumers with “deceptive, misleading, false and/or misrepresentations of fact”. POM has also been targeted in similar class action suits in Florida, Kansas, Missouri, and California.

POM is the maker of POM Wonderful pomegranate products, including juices, supplements, and concentrates. According to the complaint in the latest action, POMs advertisements promoted the consumption of POM Wonderful pomegranate products as “having special health benefits, including but not limited to, the prevention, mitigation, and/or treatment of the following: atherosclerosis; blood flow/pressure; prostate cancer; erectile function; cardiovascular disease; reduce LDL cholesterol; and other age-related medical conditions.” According to the complaint, these claims are deceptive and misleading because POM had “no reasonable basis that substantiated these representation[s] at the time the representations were made. Therefore, these representations are false, misleading, and reasonably likely to deceive the public.”

In its defense, POM states that it has spent millions of dollars on its clinical research to substantiate the claims it makes about its juices and other products. POM has stated, in a September 2010 press release, that it “stands behind the vast body of scientific research documenting the healthy properties of Wonderful variety pomegranates.” Furthermore, in the press release, POM stated that “[o]ur research is unprecedented among food and beverage companies.” Furthermore, according to the company, as of September 2010, there have been more than 55 studies on POM products, including clinical trials that have been published in peer reviewed journals to substantiate its labeling and advertising claims for its products.

Additionally, POM is involved in litigation with the U.S. Federal Trade Commission (“FTC”) regarding the level of substantiation required to support its claims. As we previously reported, on September 13, 2012, POM filed a complaint in court against the FTC alleging that the FTC has adopted a “new standard” for substantiation that it is applying to POMs claims. POM also challenged that the FTC could not require that the U.S. Food and Drug Administration (“FDA”) approve certain disease claims for a food or dietary supplement. This case is still pending in federal court.

After POM sued the FTC, the FTC sued POM within the FTC system. FTC argues that POMs claims that its products prevent, reduce the risk of, or treat heart disease, high blood pressure, prostate cancer, and erectile dysfunction (“ED”) are not supported by competent and reliable evidence. FTC filed a proposed cease and desist order that will require, among other things, FDA approval of certain claims. The case was tried before an FTC Administrative Law Judge and closing arguments were set for March 6, 2012. We will continue to watch to see how this case is resolved.

POMs trouble should be a lesson to all food and dietary supplement manufacturers to make sure their label and advertising claims are fully substantiated and not false or misleading. For more information about food and dietary supplement claims or to have Fuerst Ittleman complete a label and website review of your products, please contact us at (305) 350-5690 or contact@fuerstlaw.com.

This entry was posted on Monday, March 19th, 2012 at 11:45 am and is filed under FDA.

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