Major Supplement Marketers Settle FTC Deceptive Advertising Lawsuit

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Two major supplement marketers, I-Health, Inc. and Martek Biosciences Corporation (“Defendants”), have agreed to the terms of an administrative settlement with the Federal Trade Commission (“FTC”), which will bar them from making further unsubstantiated claims about the dietary and cognitive supplements they advertise and sell to consumers.  The settlement agreement with the Defendants comes on the heels of a lawsuit brought by the FTC last month accusing several marketers of advertising and selling green coffee bean extract through use of fake online news sites and testimonials, without necessary scientific or clinical support.

Claims of Improved Memory that Lack Scientific Support Deemed Deceptive Advertising

In this case, the FTC alleged that the Defendants were misleading consumers into believing that the product marketed by them, BrainStrong Adult, would improve their mental facilities without proper supporting clinical evidence.  According to the FTC Director of Consumer Protection, Jessica Rich, “[s]upplement marketers must ensure that adequate scientific proof supports their specific advertising claims . . . [w]hen the results of a scientific study don’t match the hype, consumers are likely to be misled.”

BrainStrong Adult, which has been advertised and sold for more than two (2) years nation-wide in drug stores and through television infomercials and online, retails for approximately $30.00 for a 30-day supply.  According to the FTC, the Defendants violated Sections 5 and 12 of the FTC Act by advertising BrainStrong Adult as a supplement that would improve consumer’s cognitive abilities, without the requisite clinical support.  Despite stating in television advertisements that BrainStrong Adult is “[c]linically shown to improve adult memory,” the only clinical study relied upon by the Defendants was not even designed to test cognitive abilities.

Deceptive Advertising Settlement

By entering into the settlement agreement with the FTC, the Defendants have agreed to discontinue any further advertising campaigns that claim that BrainStrong Adult prevents cognitive decline or improves memory in adults, unless the claim is supported by human clinical testing and reliable scientific evidence. The settlement agreement also bars the Defendants from advertising that they have clinical proof to support their claims when they do not.

Takeaway

As evidenced by our regular posts on the topic, online marketers of dietary (or cognitive) supplements must be careful to comply with applicable state and federal marketing regulations.  Prior to launching a supplement product marketing campaign, the best advice is to: 1) secure two double-blind independent clinical studies that substantiate any and all advertised claims; and 2) make sure that the entire campaign is vetted by seasoned advertising counsel.

If you are looking for Internet marketing advice or are interested in learning more about this topic, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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David O. Klein

David O. Klein

David Klein is one of the most recognized attorneys in the telemarketing, technology, Internet marketing, sweepstakes and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

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