February 23rd, 2015

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.