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The Federal Trade Commission vs Lumosity: What does it mean for the brain training market?

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Despite all the noise around brain train­ing, we must be care­ful not to con­fuse com­merce with sci­ence. It is impor­tant to remem­ber that the Fed­er­al Trade Com­mis­sion (FTC), which reg­u­lates mar­ket­ing claims and com­mu­ni­ca­tions in the Unit­ed States, issues legal rul­ings against spe­cif­ic com­mer­cial behav­iors. 

In this recent rul­ing, the FTC  iden­ti­fied sev­er­al decep­tive prac­tices by Lumosity’s mar­ket­ing com­mu­ni­ca­tions, on the basis of Sec­tion 5 of the FTC Act, which “requires that adver­tis­ers have a rea­son­able basis to sup­port their express and implied adver­tis­ing claims before they are dis­sem­i­nat­ed to the pub­lic and to ensure that such claims are truth­ful and non-decep­tive”.

Let’s dis­cuss what might be appro­pri­ate com­mer­cial behav­ior in the emerg­ing mar­ket of cog­ni­tive train­ing; in which we only real­ly have “first gen­er­a­tion” prod­ucts so far.

What brain training does, and doesn’t

Cog­ni­tive train­ing can build the capac­i­ty of specif­i­cal­ly trained cog­ni­tive func­tions. That is not in dis­pute. Both of the recent sci­en­tif­ic “con­sen­sus state­ments” (see below) agree with that. Some­times this improved func­tion assists close­ly relat­ed abil­i­ties (near trans­fer), but this hap­pens in high­ly per­son­al­ized ways, and is not specif­i­cal­ly replic­a­ble across pop­u­la­tions. Com­pa­nies pro­duc­ing “Brain Train­ing” solu­tions need to be aware of not over­hyp­ing the trans­fer effect or the reg­u­la­tors will catch up with them, as they should.

There is much hype and hope asso­ci­at­ed with brain games. Worse still, there is a com­mon mis­un­der­stand­ing of the trans­fer effect. This is the source of most of the con­tro­ver­sy. Often cog­ni­tive func­tions are trained in the hope that a “trans­fer effect” will occur – it may, but this is not guar­an­teed, and if it does it is het­ero­ge­neous. Brain train­ing is NOT a “mag­ic pill”, or a “gen­er­al solu­tion“.  It needs to be prop­er­ly tar­get­ed, and part of a broad­er brain fit­ness puz­zle.

A num­ber of com­pa­nies seem to be fol­low­ing a more care­ful and delib­er­ate approach, some even going as far as pur­su­ing approval by the US Food and Drug Admin­is­tra­tion (FDA) for spe­cif­ic brain train­ing pro­to­cols to help treat very spe­cif­ic con­di­tions such as ADHD. [Note the words “help treat” (an adjunct) not “cure”]. This means they have agreed to rig­or­ous 3rd par­ty test­ing of a SPECIFIC dig­i­tal inter­ven­tion to help treat a SPECIFIC con­di­tion. If the sci­en­tif­ic test­ing is suc­cess­ful, they will have high­ly spe­cif­ic com­mer­cial claims to make, and in ways that can sig­nif­i­cant­ly improve edu­ca­tion­al and health out­comes. One of them, Akili Inter­ac­tive Labs, just raised $30.5 mil­lion.

Oth­er brain train­ing com­pa­nies have not gone as far as mak­ing med­ical claims (or get­ting FDA approval) but have invest­ed con­sid­er­able resources in the sci­ence behind their solu­tions. Posit Sci­ence has devel­oped sev­er­al part­ner­ships with major insti­tu­tions such as AARP and the AAA Foun­da­tion for Traf­fic Safe­ty build­ing on the ACTIVE study, an inde­pen­dent mul­ti-site ran­dom­ized con­trolled tri­al of 2,802 old­er adults, with 5 and 10 year fol­low ups, and many oth­er cred­i­ble stud­ies. Edu­ca­tion giant Pear­son acquired a devel­op­er of work­ing mem­o­ry train­ing with a sig­nif­i­cant num­ber of pub­lished tri­als and offers their cus­tomers a detailed state­ment of claims.

The role of regulation: Balancing free markets and consumer rights

None of the com­pa­nies men­tioned above are per­fect, nor will any par­tic­u­lar prod­uct be, but they do offer exam­ples of good com­mer­cial behav­ior by putting for­ward clear lan­guage and strong ref­er­ences to back their claims. This pro­vides the con­sumer with sub­stan­tial infor­ma­tion to make an informed judge­ment. Con­sumers should of course take noth­ing at face val­ue and make their own crit­i­cal eval­u­a­tions as to the appro­pri­ate­ness, or not, of any prod­uct for their high­ly per­son­al­ized needs.

Many oth­er com­pa­nies do not have a high weight of research behind their offer­ings and, like many busi­ness­es in oth­er mar­kets, have let their mar­ket­ing get ahead of them. Brain train­ing is not unique, just take a walk through your local phar­ma­cy or super­mar­ket and see how many unproven prod­ucts they offer. Reg­u­la­to­ry process­es are in place to strike a bal­ance between free mar­kets and con­sumer rights, as fol­lows:

  • Pri­or­i­ty 1: Unsafe prod­ucts need reg­u­la­tion to pre­vent them from enter­ing the mar­ket and endan­ger­ing con­sumers.
  • Pri­or­i­ty 2: Com­mer­cial­ly decep­tive con­duct (includ­ing adver­tis­ing) needs reg­u­la­tion to help pro­tect con­sumers.
  • Pri­or­i­ty 3: The con­sumer should be free to pur­chase safe, non-decep­tive prod­ucts at will, even if their effi­ca­cy is sci­en­tif­i­cal­ly uncer­tain. That’s an impor­tant “buy­er beware” per­son­al right that should not be reg­u­lat­ed.

We should not have a prob­lem with con­sumers choos­ing to use any brain train­ing soft­ware, as the FTC did not iden­ti­fy any safe­ty issues. Depend­ing on your per­son­al pref­er­ences they might be rea­son­able prod­ucts to use, or not. That’s your choice.

We should have a prob­lem with decep­tive con­duct and I wel­come the FTC’s deci­sion on this. But we should not impinge too heav­i­ly on con­sumer rights by throw­ing the baby out with the bath­wa­ter. Instead, we do need to bet­ter risk-man­age the baby in the bath as we incre­men­tal­ly fig­ure out bet­ter and bet­ter ways to clean the baby.

Free mar­kets are need­ed, and reg­u­la­tors (e.g. the FTC) are also need­ed. Inde­pen­dent and cre­den­tialed con­sumer advice bureaus can also be a help­ful thing to assist peo­ple explore their per­son­al needs and to nav­i­gate claims.

In 2014, 75 sci­en­tists signed a strong state­ment that was wide­ly pro­mot­ed as “there is a sci­en­tif­ic con­sen­sus that brain train­ing doesn’t work”. But they went too far in their neg­a­tive and broad claims, so 133 oth­er sci­en­tists wrote an open let­ter argu­ing that a sub­stan­tial body of evi­dence demon­strates that cer­tain cog­ni­tive train­ing reg­i­mens can work.

I hope this emerg­ing indus­try, which has great poten­tial in a vari­ety of dif­fer­ent areas and appli­ca­tions, becomes mature enough to begin to self-reg­u­late. We’ll see.

SteveZanonSteve Zanon is the Founder of Proac­tive Age­ing (a con­sult­ing firm in Aus­tralia) and a long­stand­ing par­tic­i­pant in Sharp­Brains Vir­tu­al Sum­mits (has par­tic­i­pat­ed in all!). He acknowl­edges hav­ing no finan­cial stake in any brain train­ing hard­ware or soft­ware provider.

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Categories: Cognitive Neuroscience, Education & Lifelong Learning, Health & Wellness, Technology

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About SharpBrains

As seen in The New York Times, The Wall Street Journal, BBC News, CNN, Reuters,  SharpBrains is an independent market research firm tracking how brain science can improve our health and our lives.

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