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Areas of Interest
February 23rd, 2015
Paying Attention: FTC Focuses on Cognitive Function Claims in a Video Game
The Federal Trade Commission has made clear in recent months that it will scrutinize claims from advertisers about products that allegedly improve cognitive function, including video game products. See e.g. Your Baby Can Read, and BrainStrong. That trend continued in January when the FTC settled a case against Focus Education, LLC and its officers over allegedly unsubstantiated claims about the company's ifocus System. According to the FTC, Focus's advertisements for iFocus (which included the computer game, Jungle Rangers) claimed the game contained "scientifically proven memory and attention brain training exercises, designed to improve focus, concentration and memory." The ads also claimed the product gave children - even those with Attention Deficit Hyperactivity Disorder (ADHD) - the permanent "ability to focus, complete school work, homework, and to stay on task." Focus also created an infomercial including testimonials from children, parents, and a school psychiatrist claiming that the Jungle Rangers game made kids pay attention to teachers and do better in school.
Under the settlement, the FTC prohibited Focus and its officers from:
- making any further claims about the iFocus System, or any similar product, unless the claims are true, not misleading, and appropriately substantiated;
- making claims about Focus products being able to affect the brain's structure or function, improve cognitive abilities, behavior or academic performance, or treat or lessen the symptoms of cognitive abnormalities or disorders, including ADHD; and/or
- misrepresenting the results of any test, study, or research.
The FTC also announced that Focus would be subject to a five year audit of all of its advertisements containing any representation covered by the proposed consent order.
This case should be a reminder to advertisers and agencies that cognitive products, including games, are on the FTC's radar. Advertisers and agencies should work to ensure that all advertisements for such products contain claims that are truthful and backed by competent and reliable scientific evidence.
If you have any questions about this latest enforcement action, or about other advertising law issues, please contact Greg Boyd at (212) 826 5581 or gboyd@fkks.com, Hannah Taylor at (212) 705 4849 or htaylor@fkks.com, or any other member of the Frankfurt Kurnit Advertising Group or Interactive Entertainment Groups.
Other Advertising Law Alerts
What the Advertising Industry Can Learn from Kim Kardashian’s Settlement with the SEC
On October 3, 2022, the Securities and Exchange Commission (SEC) announced that it entered into a $1.26 million settlement with Kim Kardashian over her social media promotion of the EMAX token without disclosing payment she received from token issuer, EthereumMax. The matter provides important lessons for advertisers. Read more.
October 10 2022
Get Ready for California’s New “Automatic Renewal” Rules
California recently amended its Automatic Purchase Renewals law. The amended statute - effective July 1st -- require marketers to provide consumers of automatic renewal or continuous service offers with more information and easier ways to terminate. Read more.
June 22 2018
“Made in the U.S.A.” Claims Continue to be Scrutinized
In 2016, California amended Section 17533.7 of the California Business and Professions Code ("Section 17533"), liberalizing the standard for selling products labeled "Made in U.S.A" to California consumers. Read more.
June 4 2018
