Mouth Guard Marketer Prohibited from Misrepresenting Health Benefits Under FTC Settlement

This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reporter.

The marketer of “Brain-Pad”-branded mouth guards has agreed to settle FTC charges that it misrepresented that its mouth guards reduced the risk of concussions. In its complaint, announced last week, the agency also alleged that the company and its president misrepresented that they they possessed and relied upon a reasonable basis that substantiated the representations.

The proposed settlement would prohibit the company and its president from misrepresenting that any product will reduce the risk of concussions. They also would be prohibited from misrepresenting the health benefits of mouthguards or other athletic equipment intended to protect the brain from injury. Misrepresentations regarding studies or research with respect to such equipment also would be prohibited.

The proposed consent order would prohibit the company and its president from misrepresenting that any product will reduce the risk of concussions. They also would be prohibited from misrepresenting the health benefits of mouthguards or other athletic equipment intended to protect the brain from injury. Misrepresentations regarding studies or research with respect to such equipment also would be prohibited.

Congressional Inquiry

The settlement comes after the Senate Commerce Committee held a hearing in October 2011 that examined the marketing claims of Brain-Pad as well as the claims made by other sports equipment manufacturers regarding concussions. Witnesses at the hearing testified that sports equipment manufacturers had repeatedly made claims that their equipment “prevent concussions” or “reduce the risk of concussions” without scientific evidence to prove them. Witnesses also testified that concussion-related marketing has led to a public that misunderstands the limitations of sports equipment, according to the committee.

Senate Commerce Committee Chairman John D. (Jay) Rockefeller IV (West Virginia) and Senator Tom Udall (New Mexico) in an August 16 statement commended the FTC for taking action against Brain-Pad.

“I applaud the FTC for taking action to stop Brain-Pad from making marketing claims about whether their mouth guards can reduce the risk of concussions,” Rockefeller said. “Concussions are a very serious health concern, especially for young athletes, and it is important that athletes, parents, and coaches know the truth about the limitations of sports equipment in preventing concussions. It is disturbing that certain sports equipment manufacturers could be exploiting parents’ concerns to make a profit. I hope this action by the FTC will send a message to other companies that they can’t use claims that aren’t backed by science.”

"[A]s the Brain-Pad settlement proves, some companies seem to be taking advantage of the fears of parents, coaches and athletes,” said Udall. “I want to thank Chairman Rockefeller for allowing us to bring these issues before the committee last year and Chairman Leibowitz and the Federal Trade Commission for taking a closer look at the concussion marketing claims used to sell children’s sports gear.”