May 24, 2016

Keep Thinking: FTC Penalizes Another Brain Game App Developer

Seller Beware: Consumer Protection Insights for Industry

Continuing its recent trend of enforcement, the FTC announced last week that the developers and marketers of the LearningRx "brain training" programs agreed to stop making a range of false and unsubstantiated claims and pay $200,000 under a settlement with FTC. This enforcement is an important reminder of the scrutiny that is provided to any product promoted with claims that it can improve cognition, including the promotion of such products with ads that target search terms related to brain-related diseases or injuries.

In the LearningRx action, the FTC maintained that LearningRx Franchise Corp. and its CEO, Dr. Ken Gibson, "deceptively claimed that their programs were clinically proven to permanently improve serious health conditions like ADHD, autism, dementia, Alzheimer's disease, strokes, traumatic brain injury, and concussions and that the training substantially improved school grades and college admission test scores, IQ scores, career earnings, and job and athletic performance."

The company also allegedly claimed that LearningRx brain training is 10 times more cost-effective than tutoring.

The FTC's Complaint cites numerous examples, quotes, and customer testimonials from the website for each of these claims, and the agency posted screen shots and images of these claims on it's website. Claims included:

  • "Our programs raise IQ an average of 15 points in 12 weeks, and 20 points in 24 weeks."
  • "LearningRx clients don't just get better grades and greater IQ; they get faster, sharper brains …."
  • "Our results are clinically proven, scientifically measurable and permanent."
  • "Our personalized braining training programs have proven successful at restoring memory, focus skills, and clear thinking in men and women with mild to severe TBI [Traumatic Brain Injury]."

According to the FTC's Complaint, the company promoted LearningRx through and affiliated websites, as well as through a blog, Facebook and Twitter posts, print and radio ads, and direct mail pieces, in addition to using Google search ads to target consumers searching for terms such as "cure for ADD," "autism cure," "Asperger cure," and "severe traumatic brain injury cure." The company's training is also offered through more than 80 LearningRx centers that it franchised in 25 states.

Similar to other recent cases, the FTC asserted that LearningRx made the above noted health or other real-world claims without scientific or reliable evidence to support such claims. The agency also posted a short blog post to consumers about the settlement entitled, "Before you get on the brain train …"Among other things, the proposed order settling FTC's charges would prohibit LearningRx from making the aforementioned claims unless the claims are not misleading and substantiated by human clinical testing.

The LearningRx case is yet another example of FTC's scrutiny of cognitive and brain training games. Both the FTC and FDA have been active in this space over the past few years.

For example, as we reported back in January, the creators of Luminosity brain training program agreed to pay $2 million to settle charges alleging that they deceived consumers with the unfounded claims that Lumosity could help users perform better at work and in school, and reduce or delay cognitive impairment associated with age and other serious health conditions. In November 2015, we reported that FDA had issued a Warning Letter regarding the Quotient ADHD Systemis, a software program made by Pearson Education, Inc, alleging that the company's website was promoting the software and making claims that constituted a "major change or modification" to its intended use for which it lacked clearance or approval. And, in January 2015, the FTC entered into a Consent Order with Focus Education, LLC to resolve allegations that the company made false and misleading claims about its ADHD educational software for which there was not adequate substantiation or reliable scientific evidence.

With this in mind, app developers and related stakeholders should require all marketing and promotional materials related to cognitive or brain training claims to be closely scrutinized by legal, medical, and regulatory teams prior to their dissemination or publication to ensure that the claims are substantiated by competent and reliable scientific evidence. Otherwise, the FTC is likely to tell your customers not to board your "brain train."

© Arnold & Porter Kaye Scholer LLP 2016 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.


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