Following NAD Challenge, Factor Nutrition Permanently Discontinues Claim that Focus Factor is “America’s #1 Brain Health Supplement”

New York, NY – May 6, 2020 – The BBB National Programs National Advertising Division (NAD) recommended that Factor Nutrition, LLC discontinue the claim that its Focus Factor brain health supplement is “America’s #1 Clinically Studied and Patented Brain Health Formula,” following a challenge by Quincy BioScience, Inc., maker of Prevagen brain health dietary supplement. 

NAD is an investigative unit of the advertising industry’s system of self-regulation and is a division of the BBB National Programs’ self-regulatory and dispute resolution programs. 

During the course of the proceeding, Factor Nutrition agreed to permanently discontinue the challenged claim “America’s #1 Brain Health Supplement,” which appeared on product packaging, labeling, and in internet advertising. NAD, relying on the advertiser’s representation that the claim has been permanently discontinued, did not review the claim on its merits. The voluntarily discontinued claim will be treated, for compliance purposes, as though NAD recommended its discontinuance and the advertiser agreed to comply. 

The advertiser proposed a modification of its claim to read: “America’s #1 Clinically Studied and Patented Brain Health Formula,” and NAD assessed whether the evidence in the record was sufficient to substantiate the claim. 

First, NAD determined that the evidence in the record was insufficient to support the health-related product efficacy claim that Focus Factor is “America’s #1 Clinically Studied . . . Brain Health Supplement.” The evidence in the record demonstrated that other brain health supplements (including Prevagen) outsell Focus Factor, however, there was limited evidence in the record regarding which of those products had been clinically studied or the reliability of those studies. NAD noted that in order to support its claim the advertiser would have needed to show that, for any products that outsell Focus Factor, testing on those products is lacking or is insufficiently reliable to demonstrate any brain health benefits.  

Further, with regard to the latter portion of the claim, that Focus Factor is “America’s #1 . . . Patented Brain Health Formula,” the advertiser argued that the claim is supported because Focus Factor has a patent on the product’s formula covering “brain health and mental performance,” whereas the challenger does not hold a patent on Prevagen’s finished product but, rather, only on certain ingredients in its product. While the advertiser’s Focus Factor supplement has a 2012 patent, NAD noted that the product’s Supplement Facts lists ingredients not mentioned in the patent’s list of ingredients – Vitamins A, C and D, and Riboflavin – calling into question whether its patent covers the entire finished formula. NAD also determined that even if it is literally true that Focus Factor is the #1 selling product that has (1) a patent on its finished formula and (2) a patent specifically for brain health, consumers would be unlikely to make the nuanced distinction between the advertiser’s product and the challenger’s (and other) brain health supplements with patented key ingredients. Rather, consumers would likely still take away the overarching – but unsupported message – that Focus Factor is America’s #1 selling brain health supplement that is also patented. 

For these reasons, NAD determined that the advertiser did not provide a reasonable basis for its proposed modified claim that Focus Factor is “America’s #1 Clinically Studied and Patented Brain Health Formula,” and recommended that the claim be discontinued.  

In its advertiser’s statement, Factor Nutrition was disappointed with certain of NAD’s findings, but agreed to comply with NAD’s recommendations.