December 7, 2021

Volume XI, Number 341

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December 06, 2021

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Making an Unsubstantiated Brain Health Claim? Think Again.

The National Advertising Division (NAD) has recommended that Factor Nutrition Labs, LLC, discontinue its claim that its Focus Factor brain health supplement is “America’s #1 Clinically Studied and Patented Brain Health Formula.” NAD’s decision follows a challenge by Quincy BioScience, Inc. (Quincy), the maker of Prevagen brain health dietary supplement.

Through its proceeding, NAD determined that Factor Nutrition had insufficient evidence to support its claim that Focus Factor was “America’s #1 clinically studied” brain health supplement. To support this claim, Factor Nutrition would have needed to show that for any products that outsell Focus Factor, testing of these products was either lacking or unreliable to demonstrate brain health benefits. NAD also concluded that the phrase “America’s #1 … patented brain health formula” was not supportable, since the message did not draw a distinction between a patented finished product versus patented key ingredients (which competitor Quincy has).

Advertisers should be smart and exercise caution before making “#1” and health improvement claims.

Copyright © 2021, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume X, Number 134
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About this Author

Phyllis H. Marcus Partner Consumer Products Food Industry Retail Practices
Partner

With 17 years of experience at the FTC, Phyllis brings a unique advertising and children’s privacy vantage point to our clients.

Phyllis heads the firm’s advertising counseling practice, and focuses on all aspects of advertising, from the initial development of a claim to its ultimate defense in the marketplace. Phyllis’s practice includes claim creation and substantiation, pre-acquisition due diligence, dissemination in traditional and digital media, and both offensive and defensive competitor challenges. She also counsels clients on the intricacies of compliance with the Children’...

202-955-1810
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