Antitrust Law Daily Wrap Up, ADVERTISING NEWS: Maker of children’s computer game settles FTC charges of deceptive “brain training” claims, (Jan 20, 2015)

By Linda O’Brien, J.D., LL.M.

A Texas based marketing company and its officers are barred from making unsubstantiated claims that their computer game, Jungle Rangers, permanently improves children’s focus, memory, attention, behavior, and school performance, including for children with attention deficit hyperactivity disorder (ADHD), under a FTC settlement, the agency announced today (In re Focus Education, LLC, File No.122-3153).

According to the FTC’s complaint, Focus Education; its chief executive officer, Michael Apstein; and its chief financial officer, John Able, have marketed and sold the ifocus System, including the Jungle Rangers computer game, via television infomercials and the company’s websites for $214, generating sales of approximately $4.5 million between 2012 and the middle of 2013. The software was intended for children aged six through twelve and purportedly offered adaptive cognitive training.

The advertisements claimed that Jungle Rangers had "scientifically proven memory and attention brain training exercises, designed to improve focus, concentration and memory" and touted the software as giving children "the ability to focus, complete school work, homework, and to stay on task." Focus Education’s website implied that these benefits would be permanent.

The infomercial featured children stating that because of Jungle Rangers they could "pay attention to [their] teacher a lot more," and got "better grades" and "a lot more 100 percents," according to the complaint. Parents, teachers, and a child psychiatrist also appeared, stating that Jungle Rangers had improved children’s school performance and behavior.

The FTC charged that Focus Education and its officers violated the FTC Act by making false or unsubstantiated claims that the ifocus System permanently improves children’s focus, memory, attention, behavior, and/or school performance, including in children with ADHD. The company also allegedly falsely claimed that these benefits were scientifically proven.

The proposed consent order settling the FTC charges prohibits Focus Education and its principals from making the claims alleged in the complaint about the ifocus System, or any substantially similar product, unless the claims are non-misleading and are supported by competent and reliable scientific evidence.

The proposed order further prohibits the company and its principals from making unsubstantiated claims about the benefits, performance, or efficacy of products or services that supposedly alter the brain’s structure or function; improve cognitive abilities, behavior, or academic performance; or treat or reduce the symptoms of cognitive disorders, including ADHD.

Finally, the proposed order bars the company and its principals from misrepresenting the results of any test, study, or research; or misrepresenting that the benefits of a cognitive improvement product are scientifically proven.

"This case is the most recent example of the FTC’s efforts to ensure that advertisements for cognitive products, especially those marketed for children, are true and supported by evidence," said Jessica Rich, Director of the Bureau of Consumer Protection. "Many parents are interested in products that can improve their children’s focus, behavior, and grades, but companies must back up their brain training claims with reliable science."

The FTC will publish a description of the consent agreement package in the Federal Register shortly. The proposed consent order will be subject to public comment through February 20, 2015. Interested parties can submit written comments electronically or in paper form by following the instructions in the "Invitation to Comment" part of the "Supplementary Information" section of the Federal Register notice.

The Commission vote to accept the proposed consent order for public comment was 5-0.

Companies: Focus Education, LLC

News: Advertising ConsumerProtection FederalTradeCommissionNews