By D. John Hendrickson
In reviewing advertising copy and claims relating to a product’s performance, all products are not created equal. While some products may be advertised with little concern for regulatory scrutiny, others fall within categories that are clearly “high risk.” We’ve long known that dietary supplements, weight loss programs, skin care products, children’s educational products, and home business opportunity programs fall into higher overall higher risk categories than say, for example, cooking utensils, clothing or home furnishings. But what about an app intended to help improve your vision?
Enter Carrot Neurotechnology’s Ultimeyes®, a health app intended to improve the user’s vision through exercises targeting vision skills such as visual acuity, reading speed, contrast sensitivity, and vision in dim light. Vision exercise products are nothing new, and the Commission’s high level of scrutiny over health-related claims is also well-established in its regulatory enforcement history. But Ultimeyes is a good reminder that, while technology continues to evolve, the FTC’s enforcement concerns remain constant.
According to the allegations in the FTC’s complaint, Carrot made claims on its website that use of its app could “Turn Back the Clock on Your Vision,” and help users “Achieve Peak Athletic Performance.” Going a step further, the Commission attributed to Carrot a series of efficacy claims contained in press releases and other media articles that were made accessible to consumers through hyperlinks included on the Ultimeyes website, such as “This Simple app can Train Your Brain to Have 20/7.5 Vision,” “Reverse the effects of aging eyes,” and “25 Minutes on this App Will Improve Your Vision By 31%.”
The consent order requires that Carrot and its owners have competent and reliable scientific evidence going forward for their vision improvement claims as well as for health, performance and efficacy claims for any other product or service they market. In addition, the defendants are prohibited from misrepresenting the results of any scientific research, and they are required to clearly and conspicuously disclose their connections with any parties involved in scientific research relied upon in the future as substantiation for their advertising claims. Finally, they are required to pay $150,000 to the Commission for consumer redress or related purposes.
Marketers would be wise to remember that, regardless of the platform in which their products are made available to consumers, the fundamentals of truth-in-advertising apply. And where the advertised product or service falls within the health category, special care must be taken to ensure that all substantiation is carefully vetted and accurately reflected in the ad copy. While it’s true that hindsight is usually 20/20, marketers of health-related products – especially in the world of apps – can usually benefit from a bit more foresight in the design and execution of their campaigns.