Kantha Shelke, PhD, principal of the food research firm Corvus Blue, said that she believes science has actually become an inconvenient truth for POM. "Scientific evidence-based analysis seems to be getting in the way of POM's marketing copy, [which states that] 'pomegranate juice will help you cheat death,'" said Shelke, noting that POM does not have evidence to support that the antioxidants in pomegranate prevent mortality in healthy people or patients with various diseases. In fact, added Shelke, an extensive Cochrane review shows that scientific research fails to show that antioxidant supplements prevent mortality in healthy or unhealthy people.

"It appears that POM's marketers recognize how inconvenient science continues to be," Shelke said. "Perhaps, that's why they are not suing that they have science on their side but that their health claims, supported or not, are protected by the First Amendment."

For Kim Stewart, POM's marketing presents an all too familiar scenario whereby a good product, with good but early science, gets a little ahead of itself. "The current regulatory atmosphere does not allow for any embellishment, especially when diseases are mentioned," Stewart said. "Only products with FDA-approved health claims can get close to making an inkling of a disease claim—there is no way to get around this—no way, no how, so don't go there. This is a hard lesson for many food manufacturers to understand, regardless of the First Amendment."

As the NPA's Fabricant and others see it, POM did make some claims that go a bit above and beyond what companies are allowed to say under the letter of the law. "That is a bit concerning," Fabricant said. "I hope folks don't feel they can go out and make drug claims and then sue their way out of it. That is not a good place to be for the industry."