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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 firstname.lastname@example.org, Hannah Taylor at (212) 705 4849 or email@example.com, or any other member of the Frankfurt Kurnit Advertising Group or Interactive Entertainment Groups.
Other Advertising Law Alerts
New Low-Budget Waiver is Now Available for Digital Commercial Productions
Advertisers and agencies that are signatories to the SAG-AFTRA Commercials Contract can now take advantage of a new waiver issued by SAG-AFTRA and the Joint Policy Committee on Broadcast Talent Union Relations when producing low-budget digital commercials.
November 10 2017
FTC Updates Endorsement Guide FAQs and Settles First-Ever Action Against Individual “Influencers”
Recent developments demonstrate the FTC's continued interest in social media endorsements.
September 11 2017
FTC Announces Reforms to Its Investigative Process
Recently, the FTC announced a set of internal reforms intended to improve the process by which the Commission investigates unfair, deceptive and fraudulent business practices. The reforms relate to the Civil Investigative Demands ("CID") that the FTC's Bureau of Consumer Protection issues to request information from investigation targets.
September 7 2017