New York, NY – January 13, 2020 – The National Advertising Review Board (NARB) has referred advertising claims made by Neurocore, LLC to the Federal Trade Commission (FTC) for review after the NARB concluded that the company did not comply with NARB’s recommendations. At issue were Neurocore’s quantified outcome claims based on Neurocore’s internal studies and testimonials that claim Neurocore clients have reduced or eliminated the need for medication with ADHD, anxiety, depression, memory problems, migraines, or sleep disorders.

The advertising at issue had been reviewed as part of the National Advertising Division’s routine monitoring program.  The National Advertising Division (NAD) is an investigative unit of the advertising industry’s system of self-regulation and is a division of the BBB NP’s self-regulatory and dispute resolution programs. In the underlying 2017 proceeding, NAD’s self-initiated inquiry focused on express quantified and non-quantified claims concerning the outcomes of Neurocore’s programs, as well as testimonials touting a specific patient’s program outcomes.  NAD recommended that the advertiser discontinue all of the challenged claims on the grounds that Neurocore had failed to provide a reasonable basis to support them.  For the same reason, NAD also recommended that the advertiser discontinue testimonials which claimed that Neurocore clients have reduced or eliminated the need for medication with ADHD, anxiety, depression, memory problems, migraines, or sleep disorders.

Neurocore appealed NAD’s adverse findings to the NARB, the appellate unit of the advertising industry’s system of self-regulation.  In a decision dated June 4, 2018 (Panel Decision), the NARB panel affirmed NAD’s decision, and the advertiser stated that it would comply with the NARB Panel’s recommendations.

In October 2019, at the request of NAD, NARB opened a compliance proceeding which focused on the quantified performance claims (e.g., “Clients Who Completed Our Program Have reported . . . 84% experienced a noticeable reduction of Depressive symptoms . . . 67% no longer met symptomatic thresholds for Depression . . . .”) and certain testimonials referring to medication (e.g., “To avoid medication . . .” and “I was looking for a drug-free alternative or at least supplement to the low dose of medications . . . .”). Pursuant to Section 4.1(B) of the Policies and Procedures of the Better Business Bureau National Programs (revised effective June 1, 2019), the NARB Chair assessed (1) whether the claims identified in the compliance inquiry fall within the scope of the claims that NARB recommended be discontinued (i.e. whether the advertiser has complied with the Panel Decision), and (2) whether, after a “reasonable amount of time,” the advertiser has made a “bona fide attempt to bring its advertising into compliance.” 

The NARB Chair concluded that the revised quantified advertising claims fell within the scope of the Panel Decision discontinue recommendations.  NARB noted that while the wording has changed, from the perspective of the consumer, the percentages representing program outcomes are equally prominent and convey a comparable message.  Further, based on a review of the testimonials as a whole, NARB concluded that they do convey, if not expressly, then implicitly to a material number of reasonable consumers, that the Neurocore program reduces or eliminates the need for medication.  Thus, the claims that include percentage outcomes and the testimonials referring to drug usage do not comply with the recommendations in the Panel Decision. 

With regard to whether the advertiser had made good faith efforts to comply with the Panel Decision, the NARB Chair noted that the 18-month time period available here was an adequate opportunity in which to bring the advertiser’s claims into compliance.  During the compliance proceeding, Neurocore pointed to the many changes it did make to its advertising in response to the NAD and NARB recommendations and also asserted that these changes complied with the NAD and NARB’s recommendations. However, the NARB Chair disagreed with Neurocore’s arguments and concluded that the advertiser had not demonstrated a good faith effort to comply with the Panel Decision. When given an opportunity to review a draft of the NARB compliance decision, Neurocore argued that its advertising presented accurate, truthful and non-deceptive information to advance consumer welfare. Neurocore also asserted that a referral to the FTC was neither warranted nor appropriate. The NARB Chair, however, disagreed.

Given the NARB Chair’s conclusion that Neurocoe failed to comply with NARB’s recommendations, NARB is referring the advertising to the appropriate government agency (in this case the FTC) for possible enforcement action.

About the National Advertising Review Board (NARB): NARB is the appellate body for advertising industry self-regulation. NARB’s membership is composed of 87 professionals from three different categories: national advertisers (49 members), advertising agencies (26 members), and public members (12) made up of academics and former members of the public sector.

About BBB National Programs: BBB National Programs (BBB NP) fosters trust, innovation, and competition in the marketplace through the development and delivery of cost-effective, third-party self-regulation, dispute resolution and other programs. The programs were formerly administered by the Council of Better Business Bureaus. BBB NP is the home of industry self-regulatory and dispute resolution programs that include the National Advertising Division (NAD), National Advertising Review Board (NARB), BBB EU Privacy Shield, BBB AUTO LINE, Children’s Advertising Review Unit (CARU), Children’s Food and Beverage Advertising Initiative (CFBAI), Children’s Confection Advertising Initiative (CCAI), Direct Selling Self-Regulatory Council (DSSRC), Digital Advertising Accountability Program (Accountability Program), and the Coalition for Better Advertising Dispute Resolution Program (CBA DRM). The programs are designed to resolve business issues and advance shared objectives by responding to marketplace concerns to create a better customer experience. To learn more about industry self-regulation, please visit: BBBNP.org.