AD-ttorneys@law – December 5, 2019

Author:Ms Linda Goldstein, Amy Ralph Mudge and Randal M. Shaheen

AD-ttorneys@law Webinar - NAD: 2019 Year in Review

The countdown is on!

We're just weeks away from the end of 2019. Don't miss out as we recap the year's most important NAD issues, outcomes, and procedural changes and look ahead to what's in store for 2020. Register here for our next AD-ttorneys@law CLE webinar taking place at 2 p.m. EST on Thursday, Dec. 12. Sets Up Neurocore for an FTC Investigation

Noggin-training company somehow misses stark enforcement trend

Brain in Vain

When we report about brain-improvement therapies, we're usually sharing news about dietary supplements. But over the past five years or so, brain-training apps and in-person treatments have experienced a surge in popularity. And this popularity, predictably, has attracted the attention of regulators.

In 2016, the Federal Trade Commission (FTC) engaged in two high-profile investigations - of LearningRx, a brain-training center franchisor, and Lumosity, an online service featuring apps and games. In both cases, the FTC claimed that the companies were deceptively advertising their products and were unable to substantiate their claims of cognitive improvement. Worst of all, the FTC alleged, the companies had specifically targeted ads toward consumers dealing with age-related cognitive problems and other serious mental impairments.

Both cases were settled - Lumosity for $2 million, and LearningRx for $200,000.

Big Brother Is Adjusting You

That's why we wonder about the folks at Neurocore.

The company offers therapies based on “neurofeedback,” which measures various aspects of brain performance through a headband monitor as users react to stimuli. The user watches a video or plays a game, which responds to their brainwaves and breathing patterns, supposedly fine-tuning cerebral performance. One package of such sessions costs around $2,000.

Terrifyingly, the service, which was formerly available only in the company's in-person centers, is now available through a smartphone app, which is downloading consumer brainwaves. “All of your data is then stored and displayed within the app,” Neurocore's website says, allowing “your brain coach to monitor your progress.”

Orwellian paranoia aside, Truth in Advertising Inc. (TINA) maintains that neurofeedback is unsubstantiated hogwash. In a letter sent to the FTC in mid-November, the watchdog group pillories Neurocore for “deceptive marketing … used to attract vulnerable consumers, many of whom struggle with difficult psychiatric disorders, are caring for children who struggle with such disorders, or are seniors dealing with age-related memory loss, to its Brain Performance Centers.” It recommends the FTC open an investigation and “take appropriate enforcement action.” TINA sent a similar letter to the Food and Drug Administration, and the press release is available here.

Given the FTC's record in this space, didn't Neurocore see this coming?

The Takeaway

Additionally, TINA's campaign against the company isn't Neurocore's first time at the rodeo.

In August 2017, the National Advertising Division (NAD) came down on the company like a ton of bricks, recommending that it “discontinue challenged advertising claims … related to Attention Deficit/Hyperactivity Disorder (ADHD), autism, migraines, memory issues, sleep disorders and stress.” Perhaps unsurprisingly, Neurocore appealed the decision to the National Advertising Review Board, which affirmed NAD's ruling in June 2018 (the company agreed to cooperate with the final results of the appeal).

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