Consumers over 50 are on an endless quest for things that make us feel, look, or perform like younger versions of ourselves. Marketers aware of how aging demographics are tuned into this quest. The FTC has been especially vigilant in policing claims that dietary supplements, especially in the cognitive and memory space, can turn back the clock (for additional reading on the FTC’s history with unsubstantiated cognitive claims, check out our previous blog posts on Prevagen, 5-Hour ENERGY®, Brain Training, Lumosity, Word Smart, and Your Baby Can Read). Last week, the FTC reached a $25 million settlement with four individuals and their companies that sold supplements touted as “Viagra for the Brain” and promising to increase users’ cognitive abilities (see the settlement orders here and here). The case provides a guide of what not to do in selling dietary supplements.
In its complaint, the FTC argued that the defendants falsely claimed that their supplements Geniux, Xcel, EVO, and Ion-Z could enhance users’ focus by as much as 300 percent; concentration, memory recall, and IQ by as much as 100 percent; and brainpower by as much as 89.2 percent. The advertisements claimed that scientists were declaring the defendants’ “Smart Pill” to be “Viagra for the Brain,” and that the supplements should be “taken as directed for extreme IQ effects.” The supplements were sold for between $47 and $57 per bottle.
To coax consumers to their websites where the supplements could be purchased, defendants created web pages that were deceptively formatted to look like real news outlets, also known as advertorials. In the advertorials the defendants made references to sham endorsements from consumers and celebrities. For example, fictitious consumer testimonials included statements such as, “[a]fter I started taking Geniux I got a promotion at work after just 3 weeks. Three months later I’m CEO and have surpassed all my colleagues,” and “I saw this . . . a lot on the news about that student who took it and got blamed for cheating [because] it gave him an edge over everyone else. . . . I tried [Geniux] and I’ll admit, it’s the best thing I’ve had for focus and clarity. . . .” And in regards to sham endorsements, the defendants tried to ride the coattails of Bill Gates, Elon Musk and Stephen Hawking in claiming these folks achieved dramatic results from one of the defendants’ supplements. The defendants claimed—with no support—that one of their products had been tested in more than 2,000 clinical trials.
Unsurprisingly, the proposed orders ban the defendants from making misleading, false, or unsupported claims and require competent and reliable scientific evidence to substantiate health efficacy claims going forward. Concerning endorsements, defendants cannot claim that: (1) any person is an objective news reporter regarding the endorsement message provided; (2) purported consumers or celebrities who appear in their advertising achieved a reported result due to using any of the covered products; and (3) anyone depicted in advertisements is providing objective and independent opinions about the products. The defendants are required to monitor their affiliate networks, websites, and advertisers to ensure that the affiliates advertising complies with the terms of the settlement. The orders also prevent the defendants from failing to honor refund requests and from refusing to allow returns or order cancellations.
You don’t need to be a genius (or take Geniux) to remember what not to do in marketing supplements. Don’t fake the science, don’t fake the endorsements and testimonials, and don’t fake the refund policy. In short, fake news is bad news.