Marketers Wary Following FTC/POM Dispute

If the Federal Trade Commission’s complaint against POM Wonderful doesn’t send more than a couple of marketers back to the drawing board, it should at the very least “be a wake-up call” to the functional beverage segment, according to Marc Ullman, a partner at Ullman, Shapiro & Ullman, LLP: Food and Drug Law Counsel.

“The Commission has made it clear that regardless whether you’re a supplement, food or beverage, if it feels you’re making false claims, you’re likely to see enforcement action,” he said. ”The functional beverage class of goods really does need to pay attention to this.”

Whether or not going after a high-profile company like POM will prompt other companies to act and watch their claims is yet to be seen, but the FTC’s complaint may certainly encourage some to toe the line. For instance, Ben Weiss of Bai Brands – a self-described “antioxidant infused, thirst-quenching” beverage made with coffee fruit– communicated that the company supported the FTC’s action. Via an email statement, he wrote that the commission “acted in its capacity as a regulatory agent,” adding, “brands have now been reminded that they need to be more careful at how they illustrate their product's function within the bottle.”

While Bai claims to provide “natural energy” for the consumer, such a statement certainly seems tame against POM’s claims that it will prevent or treat heart disease, prostate cancer, and erectile dysfunction – all things that the FTC found to be false and unsubstantiated. In Ullman’s opinion, the commission’s position is not out of the blue. POM, he said, should have been more responsible about the statements the company was making.

“Both agencies [the FDA and the FTC] feel they have given plenty of warning to the functional beverage industry, offered plenty of guidance as to claims and now we’re going to start seeing enforcement action,” Ullman said.

 Shep Doniger, the President and CEO of Black Dog Communications Group, which works with several beverage companies, has observed that it is possible to be aware of FDA and FTC guidelines and responsibly inform the public. He cites the beverage Celsius as an “example of a company that has gone way out of its way to conduct clinical studies to support and substantiate the claims it makes. Even as an emerging company, they had done the first clinical study before releasing the product.” He added, “I guess you’d call it responsible marketing. “

President and founder of Modjo Beverages, Victor H. Diaz, concurs in that companies will now have to be more vigilant with the claims they choose to make about their products. Call it taking responsibility, or simply telling the truth, but Diaz feels that companies have to watch their marketing language and be more honest.

“Everyone in the functional beverage industry should be concerned that a spotlight has been put on the industry,” he said. “We should all be careful.” Diaz suggests language choice of words like “may” and “potential benefits” when discussing how a beverage can enhance the consumer’s health are ways to advertise without stepping on regulator’s toes.

Similarly, Communications Manager Kaia Lai from Sambazon weighed in on communicating accurate information to the consumer via clear and honest labeling and the significance of this FTC complaint. “There is a need for transparency across the board, both for the benefit of the consumer and for companies that are trying to do the right thing,” she commented via email. “This case brings to light the confusion in the marketplace regarding the health benefits of food products.”

However, it can’t be denied that making POM a big, bold test case was an action that cannot be ignored by the entire functional beverage category. The rather explicit message for other companies is that they can’t expect to get away with sweeping or potentially fraudulent claims going forward.

“You’re not going to be under the radar screen for a long time if you’re a high profile company like POM,” said Ullman. As things develop, other companies may also find that they’re showing up as more than mere blips on the FTC radar screen.