Lawyers representing the Federal Trade Commission want a federal judge in Washington to throw out juice maker POM Wonderful's suit against the agency, saying the complaint is a baseless attempt to thwart an enforcement action against the company.
POM's suit, filed in September in Washington’s federal trial court, challenges what lawyers for the company argue is a new standard at the FTC for the evaluation of deceptive practices and false advertising.
The suit claims the FTC adopted a new rule that requires a company to get Food and Drug Administration to approve a product before a company can advertise health claims about it. POM filed its complaint shortly before the FTC lodged an administrative complaint against the company that alleges, among other things, false advertising about the health benefits of pomegranate juice and pills.
Justice Department lawyers late yesterday filed court papers asking a judge to throw out POM’s suit. The DOJ attorneys, including Drake Cutini of the Civil Division’s consumer litigation office, said in a motion to dismiss that POM is interfering with the agency’s enforcement action.
Cutini said in court papers that a company subject to an enforcement action cannot file a separate challenge. The allegations POM makes in the suit, Cutini said, mirror what the company is saying in defense of the FTC administrative complaint.
The FTC’s issuance of an administrative complaint itself is not a final action and therefore doesn’t give a federal district judge authority to review it, DOJ lawyers said in yesterday’s motion to dismiss. Click here for a copy of the filing.
Also, the FTC denies the agency has created any new rule. Lawyers for POM said in court papers the new standard stems from two consent orders that the FTC entered into recently with Nestlé Healthcare Nutrition Inc. and Iovate Health Sciences USA Inc.
Lawyers for the FTC said POM was not a party in either of the cases and “neither of these consent decrees binds POM nor addresses POM’s acts or practices.”