Pom Wonderful: Recommended By One Out Of One Administrative Judge

The lawyers for juice maker Pom Wonderful appear to have found a way to make lemonade from a lemon. After the company was hit by a largely negative ruling by Administrative Judge D. Michael Chappell over false advertising of the health benefits of his product, the company used lines from the opinion as part of its new advertising. Many have complained that the selective quotation is misleading. Whatever the accuracy, it is a move that will not go over well with Chappell or other judges.

While the company did not claim that “one out of every one reviewing judges recommend Poms,” it wasn’t far off. Chappell’s opinion would normally not be much to crow about. He issued a cease-and-desist order barring the company from claiming that its juice reduces the risks of heart disease, prostate cancer and erectile dysfunction. However, the company proceeded to snip out a line from the 355-page opinion that was more favorable: “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.” While the court did find that the produce had “significant health benefits,” that particular line was followed by this (and not included in the advertisement): “However, the greater weight of the persuasive expert testimony shows that the evidence relied upon by the respondents is not adequate to substantiate claims that POM products treat, prevent or reduce the risk of prostate cancer or that they are clinically proven to do so.”

It is an interesting controversy. A judicial opinion is a public document and may be quoted from in an advertisement. Moreover, the court did find that the product could be sold as promoting a healthy lifestyle. However, the difference between “supports” health and “prevents” certain illnesses can be unclear to consumers.

I think legally the company is probably safe in the advertisement. After all it is hard for competitors to challenge a line that comes directly out of a court finding. However, it is a move that will likely alienate not simply Chappell but other judges.

There are alternatives available rather than using judicial opinions as part of a Mad Man brain session. For example, there is the myth of Persephone, the goddess of the Underworld, who was tricked by Hades into staying in the underworld for six months every year when she could not resist six pomegranate seeds. “Competent and reliable mythical evidence supports the conclusion that the consumption of pomegranate juice and pomegranate extract supports immorality and the ability to move freely to and from the underworld.”

Source: NY Timesas first seen on ABA Journal