The Federal Trade Commission recently announced a settlement with Lumosity regarding charges that advertising for its “brain training” games was unfair and deceptive. Lumosity offers over 40 different “brain training” games, both online and via its mobile app, designed to improve cognitive skills such as attention and memory. The FTC alleged that the company advertised the games as being capable of improving an individual’s performance on everyday tasks (including school, work, and athletics), delaying decline in memory and other mild cognitive impairment, and reducing cognitive impairment caused by health conditions. However, the FTC alleged that the company did not have science to support its claims and, therefore, the claims were false and misleading.

 Additionally, the FTC charged Lumosity with a failure to disclose that at least some of its customer testimonials had been solicited through contests offering a chance to win a prize as an incentive. In addition to a $2 million payment, Lumosity also agreed to allow its subscribers to cancel their automatically renewing subscriptions.

Tip: Advertisers must have competent and reliable scientific evidence that consists of sufficient human clinical testing, which is especially important when the claims relate to vulnerable populations, such as claims regarding age-related cognitive decline. Additionally, when statements by customers used in advertising are incentivized by a chance to win a prize (or other inducement), advertisers must clearly and conspicuously disclose that fact.