Learnings from FTC’s POM Wonderful ruling

The fresh produce industry counts on being able to promote the healthy profile of our wares. So what can we learn from the recent POM Wonderful case?

(Background: In May 2012, a federal judge agreed with the Federal Trade Commission (FTC) that POM Wonderful has engaged in deceptive advertising. Finding the company’s claims about the health benefits of its pomegranate products to be false and unsubstantiated, the judge ordered POM to halt all such claims.)

1. Refresher: Take advantage of what we can say about our foods. In addition to bringing us the now-ubiquitous Nutrition Facts boxes, the Nutrition Labeling and Education Act (NLEA) laid out rules for making nutrient content claims and health claims. NLEA defined criteria for using terms such as “no”, “low”, “free”, “light”, “healthy” and even “fresh”. The act also authorized several preworded health claims, such as the link between low-fat foods and cancer prevention, for qualifying foods. (The Food and Drug Administration (FDA) has approved additional claims since then.)

NLEA puts the fresh produce industry in an enviable position. Our naturally healthy profile means we qualify to make numerous claims about our nutrients and good health (though admittedly the approved health claims are wordy). If you aren’t already making the most of those claims, jump on that immediately.

You can access all of FDA’s online labeling and nutrition resources here. While technically NLEA applies to product labeling, FTC extends its rules to advertising, which can be construed to include online and other content.

2. Understand what it takes to say more. In the POM case, the judge ruled that the research evidence regarding pomegranates wasn’t sufficient to back up POM’s claims. FDA has defined the scientific agreement that it takes to earn a health claim, including “qualified” health claims that caveat the potential benefit. Human feeding studies are the research gold standard; animal and in vitro studies are considered background. Be advised, human studies are expensive and complex, and a single study isn’t going to be enough. Your best move is to vet findings with FDA.

Further, this post by food policy advocate Marion Nestle about the POM case demonstrates why our industry should make sure that studies we commission meet generally-accepted scientific standards.

3. Promote without overstepping. We can reasonably assume that POM captured FTC’s attention with its high profile actions. While awaiting gold-standard research, I advise Clarity clients to make the most of the approved nutrient content and health claims — we can get a lot of mileage out of them. When discussing potential health benefits, be clear that evidence is preliminary and further research is needed for surety.

It is indeed frustrating to watch other companies “get away with” claims you’re sure aren’t substantiated. The dietary supplements industry has so far managed to avoid the kind of claims regulation that foods face. However, the POM case demonstrates that long term, it doesn’t pay to bend the rules – with FDA, FTC or the consumers who want to establish a trusting relationship with us as providers of their food. At least our industry has the healthy high ground of being one of the only food groups that consumers should eat more of, not less.

Now it’s your turn. What did you learn from the POM case?

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