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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
End of an Era at NAD?
Last week Frankfurt Kurnit's Advertising Group proudly hosted "A Twenty-Year NAD Retrospective: The Levine Legacy," an ABA program honoring Andrea Levine, on the occasion of her retirement as Director of NAD. With NAD transitioning to new (as yet unnamed) leadership, we thought it would be a good time to review some of the best practices that guide NAD practitioners every day.
July 10 2017
FTC “Influencer” Letters Shed More Light on “Clear and Conspicuous”
The FTC staff recently sent out more than 90 letters reminding influencers and marketers that influencers should clearly and conspicuously disclose their relationship to brands when promoting or endorsing products through social media.
May 30 2017
It’s Blowing Up: Lessons from Two Recent Social Media Promotions
Last week, the apparel company Sunny Co Clothing launched an Instagram promotion promising to give away the red swimsuit below for free (except for shipping and handling costs) to each person who reposted the photo and tagged the company. Unfortunately, the company failed to cap the number of participants or make clear this was a "limited supply" offer, instead promising the free suit to "EVERYONE" who complied with the giveaway terms.
May 10 2017