‘Your Baby Can Read’ Case Is Instructive for Marketers6 Sep, 2012 By: Jeffrey D. Knowles, Venable LLP’s Advertising, Leonard L. Gordon
On August 28, the Federal Trade Commission (FTC) announced its complaint against Your Baby Can LLC and the company’s “Your Baby Can Read!” (YBCR) program. The complaint alleged the company, its founder and the company’s former CEO made false and deceptive advertising claims by claiming the program could teach infants and toddlers to read, and that scientific studies proved those claims. In addition, the complaint charged company founder Robert Titzer, Ph.D, whom the company touted as an expert in infant research, with making deceptive expert endorsements in the company’s advertisements.
YBCR’s infomercials featured claims that the program taught infants and children to read, gave children an early start on academic learning, and helped children who used the system perform better in school and later in life than those who did not. The spots also featured parent testimonials and video that appeared to show very young children reading.
To settle the case, the company, which appears to have ceased operations, and the former CEO agreed to cease any further use of the term “Your Baby Can Read.” The settlement also prohibits the company and the former CEO from misrepresenting the benefits, performance or efficacy of any product or service for teaching reading or speech, or enhancing language ability, cognitive ability, school performance or brain development. They also are barred from misrepresenting that scientific support exists for such assertions.
The settlement imposes a $185 million judgment, which equals the company’s gross sales. Upon the company’s payment of $500,000, the remainder of the judgment is suspended based on the company’s failing financial condition. Dr. Titzer apparently will fight the allegations.
There are many lessons from the YBCR case, but three stand out. First, the FTC found that YBCR’s claims required “competent and reliable scientific evidence,” thus holding the claims for YBCR to the same standard as a health or safety claim. The settlement also bars the company and former CEO from using the term “Your Baby Can Read” in any context, demonstrating that a brand name can sometimes also be a claim.
The third lesson requires some context. Last year, YBCR was the subject of an advertising review by the National Advertising Division of the Council of Better Business Bureaus (NAD). NAD recommended that YBCR modify its testimonials to comply with the FTC’s Guides on Endorsements and Testimonials and discontinue consumer testimonials that conveyed the message that babies taught by YBCR perform better in school and/or later in life. YBCR expressed disappointment with the findings but said its future advertising would abide by NAD’s recommendations.
Together, the FTC order and the NAD decision demonstrate that marketers must often defend products and claims in multiple venues simultaneously. Mounting concurrent defenses, or planning for the contingency of a future defense in another venue, often requires marketers and their counsel to make strategic decisions different from those that would be made when defending just a consumer class action suit or FTC enforcement action.
Jeffrey D. Knowles and Leonard L. Gordon are partners in Venable LLP’s Advertising, Marketing and New Media Group. Knowles is the chair of the group. They can be reached at (202) 344-4000, or via E-mail at firstname.lastname@example.org and email@example.com.