Antitrust Law Daily Wrap Up, ADVERTISING NEWS: FTC approves final order barring marketer from deceptively claiming its app improves vision, (Feb 23, 2016)

By Linda O’Brien, J.D., LL.M.

Following a public comment period, the FTC has approved a final consent order with Carrot Neurotechnology, Inc. and its owners, requiring them to cease making deceptive claims that their “Ultimeyes” software application can improve users’ vision, the agency announced today (In re Carrot Neurotechnology, Inc.., File No. 142-3132).

Carrot Neurotechnology is a California-based marketer of software applications for mobile devices and personal computers. According to the FTC complaint, advertising for Ultimeyes falsely stated that the app would “Turn Back The Clock On Your Vision.” The ads further claimed that users would benefit from “comprehensive vision improvement” for activities such as sports, reading, and driving, and that using the app would reduce the need for glasses and contact lenses.

The final order settling the complaint requires Carrot and its owners, Adam Goldberg and Aaron Seitz, to have competent and reliable scientific evidence before making the vision claims challenged in the FTC complaint for Ultimeyes and similar products, or claims regarding the health benefits, performance, efficacy, safety, or side effects of any product or service.

The final order also prohibits the defendants from misrepresenting any scientific research and requires them to clearly disclose their connections with anyone conducting or participating in scientific research they cite as substantiation for their claims, and with anyone endorsing their products. They also will pay $150,000 to the Commission.

In a letter addressing the public comments, the FTC explained that the agency had long standing authority and experience to regulate advertising claims for devices under Sections 5 and 12 of the FTC Act. When interpreting advertising claims, the FTC has “special expertise in determining what sort of substantiation is necessary to assure that advertising is not deceptive.”

In the Commission’s view, clinical testing with proper blinding and controls is reasonable and appropriate substantiation for the specific and unqualified vision improvement claims at issue. Acknowledging appreciation for comments consumers’ individual experiences, anecdotal user evidence is not reliable support for a claim that a product will cause the same effect in the general population, the letter stated.

In response to commenters’ concern about the equitable monetary remedy, based on all the information available in the case, the respondents and FTC counsel settled for equitable monetary relief of $150,000, which the Commission believes is an appropriate amount, the letter noted.

In a concurring statement, Commissioner Maureen Ohlhausen addressed concerns from commenters that the consent agreement requires Carrot to substantiate any future vision improvement claims through testing that is “double-blinded.” The blinding requirement already is context-sensitive and flexible “more so than the commenters may realize,” Ohlhausen noted. The blinding requirement is flexible because “[w]hat constitutes appropriate blinding and controls … may differ depending on the nature of the intervention and other circumstances.”

Companies: Carrot Neurotechnology, Inc.

News: Advertising ConsumerProtection FederalTradeCommissionNews