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Pom Wonderful, et. al v. Federal Trade Commission: Petition to Supreme Court for Writ of Certiorari Related to Advertising and Labeling

Pom Wonderful, et. al v. Federal Trade Commission: Petition to Supreme Court for Writ of Certiorari Related to Advertising and Labeling

This case could have broad implications for how the FTC evaluates labeling claims related to the health benefits of products. Pom Wonderful, et. al v. Federal Trade Commission, Petition for Writ of Certiorari, No. 15-525, October 23, 2015. Pom Wonderful asks the Supreme Court to address whether a finding by the FTC that truthful advertisements imply a misleading message to a minority of consumers, and therefore should receive no First Amendment protection, must be reviewed de novo? In other words, Pom wants the Court to address the difficult question of how far can the agencies go when regulating the labeling speech when they choose to ban it as “implying” a misleading message in the absence of evidence of how the general public, or even the scientific community, will evaluate such speech. Pom argues that the First Amendment requires courts to play a more meaningful role in evaluating a decision to ban particular truthful speech to customers on the paternalistic assumption that they will be misled by some lurking implication hiding behind the labeling message.

Pom has done significant research into the health benefits of its pomegranate products. While the research is limited by ethical concerns related to asking a control group to avoid any consumption of an important nutrient, feasibility concerns associated with trying to blind a natural product like fruit juice, and the costs associated with large random control trials, it still has developed significant evidence of the health benefits of its products. However, the studies did not reach the rigor of a random control trial associated with FDA approved drugs.

Pom argues that the U.S. Court of Appeals for the District of Columbia Circuit should have reviewed the ads that were the subject of the FTC proceedings de novo to determine if they implied that there was an unqualified proof that pomegranate juice could cure or prevent diseases. Pom argues that the D.C. Circuit’s substantial deference standard of review is inappropriate given the First Amendment implications. Pom is relying on Supreme Court precedent that when an agency determines that a particular advertisement cannot be shown to consumers because it may mislead them, the appellate court must scrutinize that claim de novo to avoid placing the ad outside the First Amendment’s protections at the discretion of the sensor. See Ibanez v. Florida Department of  Business and Professional Regulation, 512 US 136 (1994), Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 US 91 (1990); and Bose Corp. v. Consumers Union, 466 US 485 (1984).

It remains to be seen whether the legal review principle Pom seeks to have the Supreme Court apply, will succeed given the facts of the case. While the ads clearly state truths, it may be difficult for the Supreme Court under these circumstances and for all of the ads in question to abandon significant deference given to the agency. To do otherwise, puts the courts in the position of evaluating the very claims and advertisements which the agency is charged to evaluate. We could only hope that the Court stays true to its First Amendment jurisprudence in favor of protecting speech.