POM Wonderful Petitions Court for Rehearing En Banc

April 21, 2015

By Riëtte van Laack

As we previously reported, the U.S. Court of Appeals for the D.C. Circuit issued a decision in what some have identified as a landmark advertising case of the Federal Trade Commission (FTC) against POM Wonderful et al. (POM).  On April 6, 2015, POM requested a rehearing from the entire D.C. Circuit to address, what POM claims is, “the exceptionally important question whether the [DC Circuit] must defer to an agency [in this case the FTC] finding that speech is not protected by the First Amendment.”

In its January 2015 decision, a three-judge panel of the D.C. Circuit held that POM’s advertising made false claims that POM products could treat, prevent, or reduce the risk of heart disease, prostate cancer, and erectile dysfunction.  The panel gave deference to the FTC’s determination that 36 ads were false and misleading even though the Administrative Law Judge had previously determined that only 19 ads made improper claims.  In its Petition for Rehearing En Banc, POM argues that the panel should not have given deference to FTC’s determination regarding the additional 17 ads.  It claims that many of these 17 ads contained qualified language signaling that the research findings mentioned in the ads were not conclusive.  According to POM, the panel’s deference was inappropriate because all the FTC did was apply its own judgment as to how “reasonable” people would interpret the ads.

Which ads are false or misleading is relevant for POM because it determines the scope of the FTC’s injunction.  If the 17 additional ads are not false or misleading, POM has a right to publish them.  POM maintains that these ads convey important information to consumers.

POM further argues that the Court should grant the rehearing because 1). food advertising cases frequently settle and the Court is unlikely to get another chance to consider the present issues, 2). “the chilling effect of definitively endorsing the weak standard of review in this case will be immense,” and 3). a case like the present one with a large number of claims at issue is unlikely to arise again soon.

In the alternative, POM requests that the panel reconsider its opinion and remove two specific paragraphs.  Although this edit will not affect the results for POM, it claims that it is important to remove these paragraphs because they “might be mischaracterized by future litigants to vastly expand the conduct that actually underlies POM’s . . . liability.”

The FTC’s response to the Petition is due May 4, 2015.