By Elaine Watson Nutra Ingredients USA
It is now increasingly likely that a judgment in the Federal Trade Commission’s (FTC’s) false advertising case against POM Wonderful will not be issued before POM squares up with rival Ocean Spray next month at a trial the cranberry juice giant has unsuccessfully been trying to delay until the FTC case is over.
POM Wonderful has developed a range of pomegranate-based products from juices and shots to supplements and nutrition bars
Ocean Spray, which was sued by POM under federal trademark infringement law, is accused of false advertising by giving the impression that its Cranberry & Pomegranate juice contains more pomegranate juice than it actually does (its two main ingredients are grape and apple juice).
Consumers, meanwhile, had been “tricked” into thinking they were getting a product similar to POM Wonderful’s juice for a lower price, thus depriving POM of potential sales, claimed POM.
Ocean Spray: POM has misled consumers, not us...
Ocean Spray - which recently hit back with a counterclaim alleging that it was in fact POM which has misled consumers by building a market for its pomegranate juice based on false claims – has tried to get the trial date moved from November to March next year – by which time there should be a judgment in the FTC case vs POM.
It has also tried to get the case dismissed on the grounds that there is no basis for a lawsuit because its product labels comply with FDA requirements.
However, none of these tactics has proved successful, and it now looks like the trial will go ahead as scheduled on November 15, Rick Shackelton from legal firm Greenberg Traurig (which represents Ocean Spray) told NutraIngredients-USA.
FTC: We don't expect a verdict imminently...
Meanwhile, there is still no news on the high-profile FTC case vs POM, with a ruling by November 15 now seeming unlikely.
An FTC spokeswoman told NutraIngredients-USA: “The trial resumed for one day in September and it’s not clear when the judge will rule. The trial has not concluded, and the same judge is working on other trials, so we don’t expect a verdict imminently.”
In its complaint, which POM has dismissed as “completely unwarranted”, the FTC accused POM of making deceptive disease prevention and treatment claims in ads in high-profile publications including The New York Times, plus its own websites.
“Contrary to POM Wonderful’s advertising, the available scientific information does not prove that POM Juice or POMx effectively treats or prevents these illnesses [heart disease, prostate cancer or erectile dysfunction],” said David Vladeck, director of the FTC’s Bureau of Consumer Protection.
However, food law attorney Jonathan Emord told NutraIngredients-USA in August that the FTC had overstepped the mark and “richly deserves to lose… If the FTC prevails, this case will establish a very speech restrictive precedent."
Complex web of litigation
POM is currently embroiled in a complex web of litigation, having itself launched legal action against the FTC alleging it had exceeded its statutory authority by establishing a two-clinical trial standard to back claims.
It has also filed actions against Coca-Cola Minute Maid, PepsiCo Tropicana and Welch Foods alleging misleading claims about the content of their pomegranate-containing juice products.
While a federal jury recently found that Welch had deceived consumers in the labeling of its White Grape Pomegranate juice, it awarded POM no damages.
Meanwhile, another federal jury found that Tropicana’s labeling of its Pure Pomegranate Blueberry juice did not deceive consumers, and that POM had not made it clear to consumers that its products also contained water and other fruit juices.
POM Wonderful is the largest producer of California Wonderful pomegranates, which are used in its POM Wonderful Pomegranate Juice and a range of other products including bars, supplements, shots and beverages.
POM Wonderful has not returned calls or emails from NutraIngredients-USA.