The promise of improved cognitive capability or memory appeals to almost everyone. So it’s no surprise that the market for such enhancements is broad, ranging from “brain training” apps for your phone to dietary supplements promising memory boosts.
Manufacturers of these products should be aware, however, that “cognitive performance” claims of this sort have attracted the attention of the Federal Trade Commission (“FTC”) and various state Attorneys General in recent years. For example, in 2016, the FTC filed a complaint in the Northern District of California against Lumos Labs, makers of the popular personalized “brain-training-program” Luminosity – a series of games and puzzles played online or through a phone app. See FTC v. Lumos Labs, Inc., No. 16-cv-00001 (Dkt. 1) (N.D. Cal. Jan. 4, 2016). The FTC alleged that the company (and its co-founders) had violated the FTC Act by making unfounded claims that the program could help its users improve performance on everyday tasks; delay age-related mental decline; and reduce cognitive impairment associated with certain health conditions, such as stroke and PTSD.
The case settled quickly. The stipulated court order, inter alia, required the company to possess competent and reliable scientific evidence to substantiate its cognitive-related claims, consisting of “human clinical testing” of the product “that is sufficient in quality and quantity, based on standards generally accepted by experts in the relevant field, when considered in light of the entire body of relevant and reliable scientific evidence, to substantiate that the representation is true.” Order at 6. Under the settlement, Lumos Labs also had to pay $2 million in redress and notify certain subscribers of the action, providing them with a way to cancel their Luminosity subscriptions. Id. at 9-12.
On the supplements side, the FTC has sought relief against a number of companies making promises of increased cognitive capabilities by way of pills.[1] One case that reemerged recently: FTC v. Quincy Bioscience Holding Co., 272 F. Supp. 3d 547 (S.D.N.Y. 2017). Back in 2017, the FTC and the New York Attorney General sought relief against the developers of a dietary supplement known as Prevagen. The makers of Prevagen make advertising claims (1) that Prevagen improves memory and provides other cognitive benefits; (2) that the effects are clinically proven; and (3) that Prevagen’s active ingredient “supplements” brain proteins that are otherwise lost with...
