[Federal Register Volume 80, Number 18 (Wednesday, January 28, 2015)]
[Notices]
[Pages 4575-4576]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-01516]
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FEDERAL TRADE COMMISSION
[File No. 122 3153]
Focus Education, LLC; Analysis of Proposed Consent Order To Aid
Public Comment
AGENCY: Federal Trade Commission.
ACTION: Proposed Consent Agreement.
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SUMMARY: The consent agreement in this matter settles alleged
violations of federal law prohibiting deceptive acts or practices. The
attached Analysis to Aid Public Comment describes both the allegations
in the draft complaint and the terms of the consent order--embodied in
the consent agreement--that would settle these allegations.
DATES: Comments must be received on or before February 20, 2015.
ADDRESSES: Interested parties may file a comment at https://ftcpublic.commentworks.com/FTC/focuseduconsent/ online or on paper, by
following the instructions in the Request for Comment part of the
SUPPLEMENTARY INFORMATION section below. Write ``Focus Education, LLC--
Consent Agreement; File No. 122 3153'' on your comment and file your
comment online at https://ftcpublic.commentworks.com/FTC/focuseduconsent/ by following the instructions on the web-based form.
If you prefer to file your comment on paper, write ``Focus Education,
LLC--Consent Agreement; File No. 122 3153'' on your comment and on the
envelope, and mail your comment to the following address: Federal Trade
Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite
CC-5610 (Annex D), Washington, DC 20580, or deliver your comment to the
following address: Federal Trade Commission, Office of the Secretary,
Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex
D), Washington, DC 20024.
FOR FURTHER INFORMATION CONTACT: Annette Soberats, Bureau of Consumer
Protection, (202-326-2921), 600 Pennsylvania Avenue NW., Washington, DC
20580.
SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR Sec.
2.34, notice is hereby given that the above-captioned consent agreement
containing consent order to cease and desist, having been filed with
and accepted, subject to final approval, by the Commission, has been
placed on the public record for a period of thirty (30) days. The
following Analysis to Aid Public Comment describes the terms of the
consent agreement, and the allegations in the complaint. An electronic
copy of the full text of the consent agreement package can be obtained
from the FTC Home Page (for January 20, 2015), on the World Wide Web,
at http://www.ftc.gov/os/actions.shtm.
You can file a comment online or on paper. For the Commission to
consider your comment, we must receive it on or before February 20,
2015. Write ``Focus Education, LLC--Consent Agreement; File No. 122
3153'' on your comment. Your comment--including your name and your
state--will be placed on the public record of this proceeding,
including, to the extent practicable, on the public Commission Web
site, at http://www.ftc.gov/os/publiccomments.shtm. As a matter of
discretion, the Commission tries to remove individuals' home contact
information from comments before placing them on the Commission Web
site.
Because your comment will be made public, you are solely
responsible for making sure that your comment does not include any
sensitive personal information, like anyone's Social Security number,
date of birth, driver's license number or other state identification
number or foreign country equivalent, passport number, financial
account number, or credit or debit card number. You are also solely
responsible for making sure that your comment does not include any
sensitive health information, like medical records or other
individually identifiable health information. In addition, do not
include any ``[t]rade secret or any commercial or financial information
which . . . is privileged or confidential,'' as discussed in Section
6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR
Sec. 4.10(a)(2). In particular, do not include competitively sensitive
information such as costs, sales statistics, inventories, formulas,
patterns, devices, manufacturing processes, or customer names.
If you want the Commission to give your comment confidential
treatment, you must file it in paper form, with a request for
confidential treatment, and you have to follow the procedure explained
in FTC Rule 4.9(c), 16 CFR Sec. 4.9(c).\1\ Your comment will be kept
confidential only if the FTC General Counsel, in his or her sole
discretion, grants your request in accordance with the law and the
public interest.
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\1\ In particular, the written request for confidential
treatment that accompanies the comment must include the factual and
legal basis for the request, and must identify the specific portions
of the comment to be withheld from the public record. See FTC Rule
4.9(c), 16 CFR Sec. 4.9(c).
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Postal mail addressed to the Commission is subject to delay due to
heightened security screening. As a result, we encourage you to submit
your comments online. To make sure that the Commission considers your
online comment, you must file it at https://ftcpublic.commentworks.com/FTC/focuseduconsent/ by following the instructions on the web-based
form. If this Notice appears at http://www.regulations.gov/#!home, you
also may file a comment through that Web site.
If you file your comment on paper, write ``Focus Education, LLC--
Consent Agreement; File No. 122 3153'' on your comment and on the
envelope, and mail your comment to the following address: Federal Trade
Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite
CC-5610 (Annex D), Washington, DC 20580, or deliver your comment to the
following address: Federal Trade Commission, Office of the Secretary,
Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex
D), Washington, DC 20024. If possible, submit your paper comment to the
Commission by courier or overnight service.
Visit the Commission Web site at http://www.ftc.gov to read this
Notice and the news release describing it. The FTC Act and other laws
that the Commission administers permit the collection of public
comments to consider and use in this proceeding as appropriate. The
Commission will consider all timely and responsive public comments that
it receives on or before February 20, 2015. You can find more
information, including routine uses permitted by the Privacy Act, in
the Commission's privacy policy, at http://www.ftc.gov/ftc/privacy.htm.
Analysis of Proposed Consent Order To Aid Public Comment
The Federal Trade Commission (``FTC'' or ``Commission'') has
accepted,
[[Page 4576]]
subject to final approval, an agreement containing a consent order from
Focus Education, LLC (``Focus Education''), Chief Executive Officer,
Michael Apstein, and Chief Financial Officer, John Able
(``Respondents'').
The proposed consent order (``proposed order'') has been placed on
the public record for thirty (30) days for receipt of comments by
interested persons. Comments received during this period will become
part of the public record. After thirty (30) days, the Commission will
again review the agreement and the comments received, and will decide
whether it should withdraw from the agreement or make final the
agreement's proposed order.
This matter involves Focus Education's advertising for the ifocus
System, which included the Jungle Rangers computer game and comic book,
and information on children's behavior, exercise, and diet. The
Commission's complaint alleges that the Respondents violated Sections
5(a) and 12 of the Federal Trade Commission Act by making false or
unsubstantiated representations that playing the ifocus System's Jungle
Rangers computer game improves children's focus, memory, attention,
behavior, and/or school performance, including in children with ADHD,
and that these improvements were permanent. The complaint also alleges
that Respondents violated Sections 5(a) and 12 by making false
representations that scientific studies prove these claims.
The proposed order includes injunctive relief that prohibits these
alleged violations and fences in similar and related violations. For
purposes of the order, ``Covered Product'' means any product, program,
device, or service that purports to alter the brain's structure or
function, improve cognitive abilities, behavior, or academic
performance, or treat or lessen the symptoms of cognitive abnormalities
or disorders, including ADHD.
Part I of the Order prohibits the Respondents from making any
representation that the ifocus System or any substantially similar
product improves children's cognitive abilities, behavior, or academic
performance, including in children with ADHD unless any such
representation is non-misleading and the Respondents possess and rely
upon competent and reliable scientific evidence. For purposes of this
Part, competent and reliable scientific evidence is defined as ``human
clinical testing of such product that is sufficient in quality and
quantity, based on standards generally accepted by experts in the
relevant field, when considered in light of the entire body of relevant
and reliable scientific evidence, to substantiate that the
representation is true. Such testing shall be (1) randomized, double-
blind, and adequately controlled; and (2) conducted by researchers
qualified by training and experience to conduct such testing.'' In
addition, competent and reliable scientific evidence is subject to the
preservation requirements set forth in Part IV.
Part II is a fencing-in provision. It prohibits the Respondents
from making any claim about the benefits, performance, or efficacy of
any Covered Product unless the claim is non-misleading and the
Respondents possess competent and reliable scientific evidence that is
sufficient in quality and quantity, when considered in light of the
entire body of relevant and reliable scientific evidence, to
substantiate that the representation is true. For purposes of this
Part, Covered Product is defined as any product, program, device, or
service that purports to alter the brain's structure or function,
improve cognitive abilities, behavior, or academic performance, or
treat or lessen the symptoms of cognitive abnormalities or disorders,
including ADHD. Competent and reliable scientific evidence means
``tests, analyses, research, or studies (1) that have been conducted
and evaluated in an objective manner by qualified persons; (2) that are
generally accepted in the profession to yield accurate and reliable
results; and (3) as to which, when they are human clinical tests or
studies, all underlying or supporting data and documents generally
accepted by experts in the field as relevant to an assessment of such
testing as set forth Part IV are available for inspection and
production to the Commission.''
Part III prohibits the Respondents from misrepresenting, in
relation to the advertising of any Covered Product, (1) the results of
any test, study, or research; or (2) that the benefits of any such
Covered Product are scientifically proven.
Part IV requires the Respondents, for human clinical tests or
studies, to secure and preserve all underlying or supporting data and
documents generally accepted by experts in the field as relevant to an
assessment of the test. There is an exception for a ``Reliably
Reported'' test, defined as a test published in a peer-reviewed journal
that was not conducted, controlled, or sponsored by Respondents,
affiliates, or others in the manufacturing and supply chain. Also, the
published report must provide sufficient information about the test for
experts in the relevant field to assess the reliability of the results.
Part V contains recordkeeping requirements for advertisements and
substantiation relevant to representations covered by Parts I through
III of the order.
Parts VI through IX of the proposed order require Respondents to:
Deliver a copy of the order to principals, officers, directors,
managers, employees, agents, and representatives having
responsibilities with respect to the subject matter of the order;
notify the Commission of changes in corporate structure, discontinuance
of current business or employment, or affiliation with any new business
or employment that might affect compliance obligations under the order;
and file compliance reports with the Commission.
Part X provides that the order will terminate after twenty (20)
years, with certain exceptions.
The purpose of this analysis is to facilitate public comment on the
proposed order, and it is not intended to constitute an official
interpretation of the complaint or proposed order, or to modify the
proposed order's terms in any way.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2015-01516 Filed 1-27-15; 8:45 am]
BILLING CODE 6750-01-P