Mouths are puckering over POM Wonderful’s new advertisements that selectively quote from an unfavorable decision it recently received from Chief Administrative Law Judge Michael Chappell of the Federal Trade Commission (“FTC”). The decision concluded that POM Wonderful made “false or misleading” claims regarding the purported health benefits of its popular pomegranate juice beverages. Perhaps it is only natural that POM Wonderful, being in the business of making juice, would try to take this proverbial lemon and make some lemonade. Within a week after Judge Chappell’s May 17th decision, POM Wonderful was promoting it in an advertising campaign by highlighting certain statements describing the product as providing significant health benefits. The ads, though, omit several “howevers” and “buts” relating to POM Wonderful’s claims about specific effects of pomegranate juice. Since Judge Chappell’s initial decision is likely to be appealed, a number of commentators have questioned the propriety of POM Wonderful’s ad campaign.
There are a couple of important lessons to be learned here, and they extend beyond POM Wonderful’s particular orchard of litigation:
First, litigants should tread lightly before publicly commenting on pending litigation because it’s hard to predict how those comments will be received. You do not typically want to risk angering the judge/regulatory agency that controls your fate. (I’m running out of good juice metaphors here, but the old “biting the hand that feeds you” admonition serves as a fine substitute). Whether POM Wonderful consulted with professionals, including attorneys, beforehand, this particular campaign seems ill-advised. You don’t have to look far to see the irony: Having just received a 300-plus page decision detailing its false and misleading advertising, POM Wonderful turns around and uses that same decision as the basis for what some commentators are terming potentially misleading advertisements. You can bet this irony will not be lost on POM Wonderful’s opposing counsel or the FTC if the matter is appealed.
Second, be careful when you selectively quote from a source to support an argument. That’s not quite what POM Wonderful did here, but the lesson is easy to extrapolate. You want your audience to believe you. You need them to believe you. If they find you’re employing tricks to win an argument, not only do you risk losing the argument, but you also risk losing your credibility with the audience. This is especially applicable to use of the dreaded ellipsis. When you pepper a motion or brief with ellipses, you are inviting further scrutiny. If you have to punch holes in a quotation to support your argument, reconsider the source or reconsider the argument.
As for POM Wonderful’s immediate needs, perhaps it should turn to that hallmark of fruit juice advertising: precocious children.