Thursday, May 24, 2012

False Advertising - a New Low!!

"FTC V. POM You be the judge" is the headline in an advertisement on page A13 in today's New York Times.  The ad goes on to "inform" the consumer that an "FTC judge agreed that POM Wonderful 100% Pomegranate Juice and POMx do provide significant health benefits.  Here is what the judge said in his own words."

The ad goes on to quote out-of-context statements contained in the decision of the administrative judge in a suit brought by the Federal Trade Commission accusing the POM Wonderful Co. of false and misleading advertising vis-a-vis its claims to significantly affect matters such as prostate health and erectile dysfunction.

The ad quotes the judge's ruling:

"Competent and reliable scientific evidence supports the conclusion that the consumption of pomegranate juice and pomegranate extract supports prostate health, including by prolonging PSA doubling time in men with rising PSA after primary treatment for prostate cancer." (page 282.)

Here is the quote in context from page 282 of the decision:


As discussed above, the expert testimony regarding the studies relied upon by Respondents is conflicting. The greater weight of the persuasive expert testimony demonstrates the following: The basic research, the Pantuck Study, and the Carducci Study, relied on by Respondents, support the conclusion that pomegranate juice has a beneficial effect on prostate health. F. 1142. Competent and reliable scientific evidence supports the conclusion that the consumption of pomegranate juice and pomegranate extract supports prostate health, including by prolonging PSA doubling time in men with rising PSA after primary treatment for prostate cancer. F. 1142. However, the greater weight of the persuasive expert testimony shows that the evidence relied upon by Respondents is not adequate to substantiate claims that the POM Products treat, prevent, or reduce the risk of prostate cancer or that they are clinically proven to do so. F. 1143. Indeed, the authors of the Pantuck Study and the Carducci Study each testified that their study did not conclude that POM Juice treats, prevents, or reduces the risk of prostate cancer. F. 1055, 1056, 1084, 1085. And, as Respondents’ expert conceded, no clinical studies, research and/or trials show definitively that the POM Products treat, prevent, or reduce the risk of prostate cancer. F. 1135-1138.

Having fully considered and weighed all the evidence and the conflicting expert testimony on Respondents’ basic research and clinical trials, the greater weight of the persuasive expert testimony demonstrates that there is insufficient competent and reliable scientific evidence to substantiate a claim that the POM Products treat, prevent, or reduce the risk of prostate cancer or that clinical studies, research, and/or trials prove that the POM products treat, prevent, or reduce the risk of prostate cancer. F. 1143. Accordingly, Complaint Counsel has met its burden of proving that Respondents’ substantiation was inadequate to make the implied prostate cancer claims found to have been made in this case, and that, therefore, such claims were false or misleading.

The ad concludes with the following cited "claim" from the judge's decision:

"Competent and reliable scientific evidence shows that pomegranate juice provides a beneft to promoting erectile health and erectile function." (page 188)

In fact, page 188 cites various studies that are being examined by the court, including the one above and the one I cite below, also on page 188.

There is insufficient competent and reliable scientific evidence to show that pomegranate juice treats erectile dysfunction in a clinical sense or has been clinically proven to do so. (Burnett Tr. 2285, 2300; Goldstein, Tr. 2611; CX1289 (Melman Expert Report at 0018). See also Burnett, Tr. 2261-64).

And here is part of the court's final conclusion:

The weight of the persuasive expert testimony demonstrates that there was insufficient competent and reliable scientific evidence to support the implied claims, made in advertisements disseminated by Respondents, that the POM Products treat, prevent or reduce the risk of heart disease, prostate cancer, or erectile dysfunction, or are clinically proven to do so. Therefore, such claims were false or misleading within the meaning of Section 12 of the FTC Act, and Complaint Counsel met its burden of proving the second element of a false advertising claim.

Once again - If it seems too easy to be true - best check it out!!





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