When the ad above ran on English billboards last year, the country’s advertising regulator was quick to take action. The Guardian reports that the company’s defense was that of course the claim was ridiculous, and it “could not possibly be taken seriously.”
That kind of nudge-nudge advertising is now under attack here as well, with the Federal Trade Commission suing the company, called POM Wonderful, for “false and unsubstantiated claims.”
This time the company’s response is not so tongue-in-cheek. It claims to have spent $34 million on over 55 trials, and stood behind its First Amendment rights.
The FTC is violating POM’s constitutional rights to share useful and important information with the public, and therefore we have initiated a separate lawsuit to preserve these rights.
Maybe. But even the First Amendment Center says only “commercial speech that is neither false nor misleading is fully protected speech.” So are POM’s ads misleading?
The question may be one of burden of proof.
Drugs have to prove everything they claim with scientific rigor. Getting into the market takes years, and ads are closely watched. (That’s why most are so vague.) Regulators seem anxious to bring this standard to food claims. They even went after Cheerios. (That may be why Ben & Jerry’s no longer claims to be all natural.)
This week’s action should be no surprise to POM. The FDA warned about its ads in February. But the words in the FTC’s notice are unequivocal. ” When a company touts scientific research in its advertising, the research must squarely support the claims made.” (The full complaint is on the FTC Web site.)
What I find most interesting here is the personal angle. The target of the government action appears to be Lynda Resnick, a paid-in-full member of the Hollywood Glitterati who has made a career of pushing the envelope in marketing claims. She has even written a how-to book on it, Rubies in the Orchard. (And she’s an active Democratic contributor.)
A 2008 New Yorker profile dubbed Resnick “The Pomegranate Princess” and she trades on that reputation, giving speeches where she touts the health benefits of pomegranates. She’s also a TV regular, having appeared on Oprah, Charlie Rose and other programs.
The question here is one of the border between marketing and huckstering. If Resnick goes on TV and claims pomegranates prevent cancer, is that advertising or free speech? Should foods be made to substantiate every health claim they make, the way drugs do, or are such claims merely marketing, harmless hype no one should take seriously.
Lynda Resnick has made her life on the border of that question, and her reputation depends on how we answer it.
