Food Labeling – FTC Fumbles The First Amendment

FTC deftly ignores the most interesting and important aspect of the POM Wonderful case. On January 10, 2013 the Federal Trade Commission issued its Opinion, a long awaited next-step in the arduous journey of In the Matter of POM Wonderful LLC et al to the United States Supreme Court that is provided that POM has enough fight left to continue this battle. This is a significant First Amendment case buried and obscured within a quagmire of administrative second guessing. The FTC addresses the Constitutional First Amendment issues while applying a poorly reasoned rubber stamp to the government's disdain for the First Amendment. The government historically “wins” battles involving the First Amendment and FDA regulated industry, most notably settlements involving criminal prosecutions concerning off-label promotion. The government prevails not necessarily because of the merits but because it applies unlimited resources coupled with devastating civil and criminal penalties crushing the few who can afford to fight but cannot afford to lose and fewer who can afford to lose but cannot afford to fight. POM is different for a number of reasons. For one, the case raises serious First Amendment issues without the looming specter of criminal charges or civil penalties. In an Initial Decision issued on May 17, 2012, a Federal Trade Commission Administrative Law Judge found that some of POM Wonderful's claims implied that its products treat disease and those claims were not supported by sufficient scientific evidence, rendering the claims “false and misleading” under the Federal Trade Commission Act (“FTC Act”) (15 U.S.C. § 41 et seq.). The ALJ entered a multi year cease and desist order against POM Wonderful, but the ruling was not the victory the FTC sought. Instead, it sought prior review of marketing materials and a requirement for a heightened level of scientific research. The FTC dropped this issue before the Commission. Since the enactment of the Dietary Supplement Health Safety Act in 1994, manufacturers making health related claims on food products have resided in an uncomfortable regulatory world between foods, which is how they are regulated, and drugs, which is how they are prosecuted. The ALJ recognized thatindividuals could benefit from truthful claims about a product's ability to treat, prevent, or reduce the risk of diseases or medical conditions... In re POM Wonderful LLC, No. 9344, 2012 FTC LEXIS 106, at *558 (May 17, 2012). However...