FTC v. POM – Dissecting the Legal Issues of this Landmark Case

July 30, 2014 9:30am

Ronald Levine
Partner, Co-Chair, Litigation Department Chair, Best Practices Committee
Herrick, Feinstein LLP

Carlos Lazatin
Partner
O’Melveny & Myers LLP (Los Angeles, CA)

By popular request, this important session will provide attendees with an update on the landmark FTC v. POM case with a thorough discussion of the legal issues presented by this litigation as well as what learnings from this case food and beverage companies can use in their daily compliance programs. This session was designed to engage participants in a dissection of the constitutional and other legal challenges presented by this history-making case. Arguments presented against the FTC include:

  • Constitutionally protected speech – First Amendment does not permit the government to presume that protected speech is misleading” and shift to the “speaker” the burden to prove that the speaker’s speech is not misleading
  • FTC’s requirement of two RCTs for all health claims would be inappropriately broad, where far less intrusive remedies are available (e.g. disclaimers)
  • FTC’s order violates the Administrative Procedure Act (“APA”) because the FTC has introduced a new standard without proper procedures – requiring that two RCTs for a disease claim