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 3^rd 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.

– Steve 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.

To learn more:

• Info­graph­ic on the Dig­i­tal Brain Health Mar­ket 2012–2020
• Can brain train­ing work? Yes, if it meets these 5 conditions