FTC Warning to Brain and Fitness App and Software Makers: Game / App Must Remove Unscientific Claims of Memory and Mental Fitness Improvement

January 27, 2015

By Steven E. Helland

According to the FTC, the so-called “Brain Training” was not the rigorous mental workout the seller claimed.

The Federal Trade Commission (FTC) has signaled its willingness to regulate and scrutinize claims of improved physical and mental fitness made by software and app makers. Click here for the full news release and related materials from the FTC.

Infomercial’s Claims of Behavior and School Performance Improvement

In its complaint against Focus Education, LLC, the maker of the “Jungle Rangers” software and game, the FTC highlighted statements and claims from the company’s infomercial touting the benefits of playing the game, such as:

  • What if you could give your child the ability to focus, complete school work, homework and to stay on task, to reach the promise of his or her potential simply by playing a fun and easy computer game? Now you can with ifocus.”
  • [B]ecause hidden within every level of the nine innovative ifocus Jungle Rangers games are scientifically proven memory and attention brain training exercises, designed to improve focus, concentration and memory[,] strengthening important neuron connections.”

Focus Education added some techno-babble for good measure:

  • The secret is integrated neuro technology. Every challenge and sequence built into the ifocus game was scientifically engineered to strengthen important neuron connections…. Jungle Rangers game is cutting edge science….”

The FTC took the position that the infomercial claims were unsubstantiated, false and misleading, in violation of the Federal Trade Commission Act.

Takeaway for Health / Fitness App, Software and Game Makers: Reliable Scientific Evidence Required

In its settlement and order with Focus Education, the FTC stated the rule for any future advertising claims by Focus. This rule should guide other app, game and software makers generally:”

“[The advertisers] shall not make any representation in any manner, expressly or by implication… about the benefits, performance, or efficacy of any [advertised app, game, or software], unless the representation is non-misleading, and, at the time of making such representation, [the advertisers] possess and rely upon competent and reliable scientific evidence that is sufficient in quality and quantity based upon standards generally accepted in the relevant scientific fields, when considered in light of the entire body of relevant and reliable scientific evidence, to substantiate that the representation is true.”

Applying the Rule to Your Advertising – We Can Help

The above standard is quite elaborate and technical, and its application will vary depending upon the circumstances and advertising claim to be made. If you would like help understanding what type of scientific evidence is required to support your advertising claim, you can contact Steve Helland at shelland@fredlaw.com, or 612.492.7113, or any other attorney in Fredrikson & Byron’s Advertising, Marketing & Trademark Group.

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