United States: FTC Settlement Sheds Light On Claims Of Increased Cognition

Last Updated: January 8 2016
Article by Shahin O. Rothermel and Amy R. Mudge

It doesn't take a genius to know that health claims are on the FTC's radar.  In fact, at last year's NAD conference, Commissioner Brill said that the FTC will prioritize enforcement of unsubstantiated health claims, such as cognitive claims.  We have blogged about learning claims before, including the Word Smart case.  However, Lumosity, which created a program marketed to train the brain, improve memory, and delay cognitive impairment, was cast into the spotlight this week when it settled a case with the FTC.

According to the FTC's complaint, Lumosity, which contains 40 games ostensibly designed to improve brain function, advertised that training on its program for 10 to 15 minutes three or four times a week could help users achieve their "full potential in every aspect of life."  The FTC alleged that Lumosity claimed that scientific studies showed that users would improve performance on everyday tasks, in school, at work, and in athletics; delay age-related cognitive decline and protect against dementia and Alzheimer's disease; and reduce cognitive impairment associated with health conditions, including stroke, traumatic brain injury, PTSD, ADHD, the side effects of chemotherapy, and Turner syndrome. 

According to the complaint, Lumosity failed to highlight that it did not have substantiation that its program would improve performance on everyday tasks, improve performance in school, improve performance at work, and improve athletic performance.

As we've blogged before, and as the FTC stated in the FAQs of its Guides Concerning Use of Endorsements and Testimonials in Advertising, when using customer endorsements and testimonials, disclosure is key.  In the complaint, the FTC again illuminated the importance of disclosures of material connections when marketers use testimonials.  Specifically, it alleged that Lumosity did not disclose that some of the consumers whose testimonials were used on its website had their days brightened with prizes like a free iPad, a lifetime Lumosity subscription, and a round-trip to San Francisco.

The settlement requires the company to have competent and reliable scientific evidence before making claims about any benefits for real-world performance, age-related decline, or other health conditions.  It defined "competent and reliable scientific evidence" as human clinical testing that is (1) randomized, adequately controlled, and blinded to the maximum extent practicable; and (2) conducted by researchers qualified by training and experience to conduct such testing.  In addition, all underlying or supporting data and documents must be generally accepted by experts in the relevant field.

And in case companies remain in the dark about whether cognitive claims will continue to be an enforcement priority for the FTC, Commissioner Brill wrote a concurring statement warning marketers of brain products not to overstate their efficacy and to ensure that they have a reasonable basis to support their express and implied claims.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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