Antitrust Law Daily Wrap Up, CONSUMER PROTECTION NEWS: FTC Order Prohibits Brain-Pad from Claiming Its Mouth-Guards Can Reduce Concussion Risk , (Nov 29, 2012)

By Tobias J. Gillett, J.D., LLM.

The Federal Trade Commission has voted 4-1 to approve a consent order settling claims that Brain-Pad, Inc. deceptively marketed its mouth-guards as capable of reducing the concussion risk of consumers who wore them while playing contact sports. Commissioner J. Thomas Rosch voted against the final order.

According to the FTC’s complaint, Brain-Pad and its president, Joseph Manzo, had advertised and sold Brain-Pad-branded mouth-guards for use in contact sports. Brain-Pad’s advertising and packaging claimed the Brain-Pad mouth-guard “creates new brain safety space,” “Reduces Risk of Concussions! From Lower Jaw Impacts,” and “Reduces risk of CONCUSSIONS! Protects Upper AND Lower Teeth,” among other claims. The complaint also alleged that the respondents represented that scientific studies supported the claims of reduced concussion risk.

The complaint charged that Brain-Pad and its president “did not possess and rely upon a reasonable basis that substantiated” those claims, and that “scientific studies do not prove that Brain-Pad mouth guards reduce the risk of concussions or reduce the risk of concussions from lower jaw impacts.” Therefore, the complaint alleged, the respondents’ claims were “false and misleading.”

Among other obligations, the settlement order requires Brain-Pad and its president to refrain from expressly or impliedly representing that any product reduces risk of concussion unless the claim is true, not misleading, and supported by reliable scientific evidence. Moreover, the order prohibits the respondents from misrepresenting the existence or character of any scientific study in connection with the marketing of any mouth-guard or athletic equipment intended to protect the brain from injury. The order also bars the respondents from expressly or impliedly representing the health benefits of any mouth-guard or athletic equipment intended to protect the brain from injury unless the claim is true, not misleading, and supported by reliable scientific evidence.

The consent order represents part of an FTC campaign to protect consumers from over-hyped health claims. The FTC also sent 18 warning letters to other sports equipment manufacturers that may have made claims regarding the capacity of their equipment to reduce concussion risk.

News: ConsumerProtection FederalTradeCommissionNews