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Toothless Watchdog? FTC and Football Concussions

CONSUMER EAGLE

From the Monday night gridiron to the Friday night bleachers, players and parents are buzzing with concern over football concussions and the safety equipment that’s meant to prevent them. On March 13, the Federal Trade Commission (FTC) testified before Congress that it is on the job, ensuring that concussion protection claims made for sports equipment are truthful and not supported by junk science.

As the watchdog that enforces the legal prohibition against deceptive advertising, the FTC doesn’t test noggin protectors, but it can force manufacturers to turn over their evidence.

Back in 2012, the FTC brought an administrative complaint against Brain-Pad mouth guards, saying the company’s claim that the mouth guard reduced concussion risk from lower jaw impacts was based on misleading science. The resulting settlement agreement gave Brain-Pad a wrist slap by simply prohibiting the company and its president from making future unsubstantiated claims that their mouth guards help prevent concussions. At the time, the regulator sent letters to 18 other manufacturers warning them against making deceptive claims.

Junk vs. real science

Dr. Robert Cantu, co-founder of the Sports Legacy Institute and professor of neurology and neurosurgery at Boston University School of Medicine says safety claims must be based on real-world testing.

“You can’t make [safety] statements in regard to concussion unless you have done on-field testing. You can make a statement that something tests to a lower kinetic energy or lower linear acceleration or a lower rotational acceleration but you can’t say, necessarily, that it reduces concussions,” said Cantu. “You must follow that product in the field and compare it against a product that doesn’t have whatever you are saying makes the difference.”

The role of the FTC

Cantu said the FTC’s watchdog role was an appropriate one which, in this case, will help parents from buying athletic equipment from companies advertising safety features that are “not based on any credible science.”

Rachel Weintraub, legislative director and senior counsel at the Consumer Federation of America, says consumers rely on the FTC to verify the claims of products. When consumers are deceived about safety products, there is a risk for even greater harm.

“The government should play as strong a role as they can to make sure that products do what they say they are going to,” said Weintraub. “When it has to do with concussions in terms of making false claims, certainly government agencies should do what they can to decrease the number of concussions in this country if possible.”

Jamie Court, president of Consumer Watchdog, says the FTC can be an effective enforcer, but that too often false marketing claims are overlooked until an injury occurs. Moreover, as in the case of the Brain-Pad settlement, the lack of financial penalties create toothless enforcement actions.

“The injunctive relief of pulling down disinformation has the impact of both protecting consumers immediately and sending a signal to the industry,” Court said. “The fines have not been aggressive enough at the FTC as a deterrent to conduct.”