POM Wonderful Petitioners File Appeal Briefs in D.C. Circuit

By Riëtte van Laack –

In March 2013, the nearly three-year battle between POM Wonderful and the FTC that was fought at the FTC moved to the United States Court of Appeals for the D.C. Circuit (see our previous posts here and here).  Following several extensions for filing its opening brief, on August 14, 2013, POM Wonderful LLC Roll Global, and the owners, Mr. and Mrs. Resnick filed a brief in the D.C. Circuit.  On the same date, Matthew Tupper (President of POM) filed his brief.  Because each brief adopted by reference portions of the other brief, we will refer to the parties submitting the two briefs collectively as “POM.”.  

POM argues that the Order bans constitutionally protected speech.  It asserts that its advertising claims are based on the best science available and are an “important part of a larger ongoing public discussion about the health benefits of antioxidants.”  POM asserts that its speech is protected because POM’s advertising, at worst, constitutes potentially misleading, rather than actually misleading, speech.  POM states that its ads did not claim that it had uncontroversial evidence; in fact, “every mention of science in the ads [was] heavily qualified.” POM alleges that the FTC presumed that the advertising claims did actually mislead the consumers but “the First Amendment does not permit the government to presume that protected speech is misleading” and shift to the “speaker” the burden to prove that the speaker’s speech is not misleading. 

POM further argues that if the Court were to decide that POM did violate the FTC Act, the FTC’s requirement of two RCTs for all health claims would be inappropriately broad fencing in, where far less intrusive remedies are available.  POM relies on Pearson v. Shalala and its progeny for the proposition that the FTC may not opt for suppression or total prohibition of potentially misleading speech where an alternative non-misleading presentation, possibly disclaimers, may be available.

POM also argues that the order violates the Administrative Procedure Act ("APA")  because the FTC has introduced a new standard, i.e., a requirement for two RCTs for a disease claim without proper procedures.  POM claims that the more flexible traditional substantiation standard has been, and should remain, whether there is competent and reliable scientific evidence, not two RCTs.  POM claims that the RCT standard departs from “years of the [FTC’s] own precedent” and will impose new costs on any advertiser advancing this type of claims.  POM asserts that the FTC’s change in standard requires notice and comment rulemaking to avoid violating the APA.

Mr. Tupper argued that he lacked sufficient control over POM’s conduct to be held responsible under the FTC’s order.

The FTC’s brief is due on October 17, 2013.  The court has not scheduled a date for oral argument.