Hunton Retail Law Resource

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.