On August 21, 2014, the Federal Trade Commission (“FTC”) approved a final order (the “Order”) settling false advertising claims against i-Health, Inc. and Martek Biosciences, respectively (collectively the “Marketers”). Specifically, the FTC alleged that the Marketers made use of unsupported health benefit claims concerning their “BrainStrong Adult” dietary supplement in their product marketing. Pursuant to the terms of the Order, the Marketers are prohibited from making future unsubstantiated health claims about any of their products through August 21, 2034.
The Deceptive Advertising Allegations
According to the FTC’s complaint, the Marketers published unsubstantiated advertising claims relating to the memory benefits associated with ingesting the BrainStrong product. Specifically, the FTC alleged that the research relied upon by the Marketers was incomplete and did not adequately support the Marketer’s claims that the BrainStrong product prevents cognitive decline in adults. Moreover, the study relied on by the Marketers “employed three types of laboratory tasks to test different, but interrelated, aspects of episodic memory.” Essentially, the Marketers only tested two types of memory, not all types of memory, as represented to consumers.
Pursuant to the terms of the Order, the Marketers cannot make any future claims about any product’s ability to improve memory or prevent cognitive decline unless such claims are truthful and supported by FTC approved clinical testing. The Marketers are also prohibited from making claims of clinical proof where no such proof exists.
This blog has previously addressed the FTC’s increased scrutiny of the health supplement marketing industry. (See Cactus Juice Marketers Agree to Pay $3.5 Million to FTC.) Additionally, various state attorneys general have also begun taking action against supplement marketers. (See Deceptive Advertising Lawsuits Filed by Multiple State Attorneys General against 5-Hour Energy.) Given this regulatory environment, health supplement marketers should be cautious and employ competent counsel to review their marketing practices.