Markets Wired

Supplement marketers i-Health, Inc. and Martek Biosciences Corporation have agreed to settle FTC charges of deceptive advertising for claiming that their BrainStrong Adult dietary supplement will improve adult memory and prevent cognitive decline. The complaint also alleges the marketers falsely claimed they had clinical proof that BrainStrong Adult improves adult memory.

“Supplement marketers must ensure that adequate scientific proof supports their specific advertising claims,” said Jessica Rich, Director of the FTC’s Bureau of Consumer Protection. “When the results of a scientific study don’t match the hype, consumers are likely to be misled.”

Since at least March 2011, i-Health and Martek have sold BrainStrong Adult for about $30 for a 30-day supply at major retail stores, including CVS Pharmacy, Walmart, Walgreens, and Rite Aid; and online through drugstore.com and Amazon.com. They advertised the product – which contains the Omega-3 fatty acid DHA – on television, on Twitter, and at brainstrongdha.com.

In the television ad, a woman forgets why she walked into a room. Through a voice over, her dog tells the audience she is there to find her sunglasses, which are sitting on top of her head.  Another voice over then asks, “Need a memory boost?  Introducing BrainStrong…Clinically shown to improve adult memory.”

The proposed administrative settlement covers any dietary supplement, food, or drug promoted to prevent cognitive decline or improve memory, or containing DHA. It bars the companies from claiming that any such product prevents cognitive decline or improves memory in adults unless the claim is truthful and supported by human clinical testing. The settlement also prohibits claims about the health benefits, performance, safety, or effectiveness of these products unless the claims are backed up by competent and reliable scientific evidence. Finally, the companies cannot claim they have clinical proof to support their claims when they do not.

For consumer information see: What’s in a health claim? Should be a healthy dose of proof. 

The Commission vote to accept the agreement containing the proposed consent order for public comment was 3-1-1, with Commissioner Ohlhausen voting no, and Commissioner McSweeny not participating. Chairwoman Ramirez and Commissioner Brill issued a joint concurring statement, Commissioner Wright issued a separate concurring statement, and Commissioner Ohlhausen issued a dissenting statement.

The FTC will publish a description of the consent agreement in the Federal Register shortly. The agreement will be subject to public comment for 30 days, beginning today and continuing through July 9, 2014, after which the Commission will decide whether to make the proposed consent order final. Interested parties can submit written comments electronically or in paper form by following the instructions in “Supplementary Information” section of the Federal Register notice. Comments should be submitted electronically using this form. Instructions for submitting comments in paper form are listed in the “Accessibility” portion of the form.

NOTE: When the Commission issues a consent order on a final basis, it carries the force of law with respect to future actions. Each violation of such an order may result in a civil penalty of up to $16,000.

The Federal Trade Commission works for consumers to prevent fraudulent, deceptive, and unfair business practices and to provide information to help spot, stop, and avoid them. To file a complaint in English or Spanish, visit the FTC’s online Complaint Assistant or call 1-877-FTC-HELP (1-877-382-4357).  The FTC enters complaints into Consumer Sentinel, a secure, online database available to more than 2,000 civil and criminal law enforcement agencies in the U.S. and abroad.  The FTC’s website provides free information on a variety of consumer topics.  Like the FTC on Facebook, follow us on Twitter, and subscribe to press releases for the latest FTC news and resources.