The year ended with a flurry of activity related to the FTC’s ability to obtain permanent injunctions and restitution under Section 13(b) of the FTC Act.  As we head into 2020, a level-set is in order.

To File or Not File is No Longer the Question

On December 19, 2019, the FTC filed a petition

Earlier this week, the FTC announced that supplement marketers i-Health, Inc. and Martek Biosciences Corporation (the Companies) have agreed to settle charges of deceptive advertising for claiming that their BrainStrong Adult dietary supplement will improve adult memory and prevent cognitive decline.  BrainStrong Adult, which is sold at drug stores nationally and advertised online and on television, is an omega-3 DHA-based supplement.  The Companies claimed that the product was “clinically shown to improve adult memory,” could “naturally support mental clarity,” and “helps protect against normal cognitive decline as we age.”

The FTC alleged that the terms “memory” and “cognitive” function mean many different things.  For example,  the FTC points out that there is episodic memory (memories of specific experiences), sensory memory (memories of specific sensory perceptions), working memory (short term mental manipulation of numbers), semantic memory (general knowledge, facts, concepts), and procedural memory (learned skills, such as riding a bike).  The same is true of cognition.  As such, even though BrainStrong Adult was supported by clinical trial evidence showing that participants who consumed 900 mg of DHA daily experienced certain memory-related improvements, because it did not support an improvement in all different variations of memory and cognition, the FTC alleged that the benefits communicated were not properly supported by the study and, thus, the claims were deceptive.


Continue Reading FTC’s i-Health Settlement Features Evolving Substantiation and Fencing-In Standards

A new article published by the Food and Drug Policy Forum Ravioli Trees and Tortellini Bushes: What Should Courts Expect from the Reasonable Consumer When it Comes to “Natural” Claims?'” discusses how in recent years there have been many consumer class action cases alleging that advertisers are deceptively labeling their products as natural when