Some of our readers wondered about contradictory major media headlines. The facts of the case follow.
Last week we reported on the court decision in favor of pomegranate maker POM Wonderful, allowing the company to tell consumers about the health benefits of its juice.
Pat writes: “Moments after reading this article claiming the ‘win’ I saw the Yahoo headline below.”
The headline reads: “Pomegranate juice claims deceptive, US rules.”
We saw that too. The New York Times and many others are also reporting the POM Wonderful decision as a loss for POM, but this is a case where the media are completely misrepresenting the story. This is either gross media bias or simple ignorance; we can’t really say which. What we can say is that it is a disgrace to report without carefully checking facts or providing context.
The judge in the case issued a 335-page decision, so there was a lot in it. He found that product claims don’t need double-blind Random Controlled Trials (RCTs) to support them, and that claims don’t need to be FDA-approved. This is hugely important win and the heart of the case.
The judge’s decision is a major roadblock to the FTC’s and FDA’s desire to create a pharmaceutical-like pre-approval system for supplements. It reaffirms existing law which forbids such pharmaceutical standards. The idea of treating supplements as if they were drugs may sound good to an uninformed public, but it would really mean the end of supplements. A natural food or supplement ingredient cannot, in general, be patented because it is a natural substance, and without patent protection it can never get an exclusive share of the market and recoup the investment of millions of dollars it takes to do those double-blind RCTs.
The judge also found that the evidence POM Wonderful presented to substantiate some of its ads—specifically, the ones allegedly claiming that POM products treat, prevent, or reduce the risk of heart disease, prostate cancer, or erectile dysfunction—was inadequate. This was not a surprise. It is very difficult under existing law for a supplement to make a disease claim or what can be interpreted as a disease claim. But for the media to trumpet this in headlines and present it as evidence that POM “lost” is completely misleading. POM won its case, and so did natural health.
Over the past couple of years, the FTC has been requiring two RCTs as part of lawsuit settlement agreements (“consent decrees”). As we have reported, this is illegal, and FTC has been attempting to circumvent the rulemaking process by creating new law this way. In fact, the reason ANH-USA filed a Petition for Rulemaking against the FTC was that we have every reason to believe FTC will continue in this practice, and as we note above, companies simply cannot afford to perform two RCTs for each claim on each product.
Note that structure/function claims are completely legal under DSHEA, so what FTC was doing here is in opposition to the law governing supplements. There is little enough information we are currently allowed access—we can’t risk even that little bit being trampled. That is why this ruling matters.