[Federal Register Volume 80, Number 18 (Wednesday, January 28, 2015)]
[Notices]
[Pages 4575-4576]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-01516]


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FEDERAL TRADE COMMISSION

[File No. 122 3153]


Focus Education, LLC; Analysis of Proposed Consent Order To Aid 
Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed Consent Agreement.

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SUMMARY: The consent agreement in this matter settles alleged 
violations of federal law prohibiting deceptive acts or practices. The 
attached Analysis to Aid Public Comment describes both the allegations 
in the draft complaint and the terms of the consent order--embodied in 
the consent agreement--that would settle these allegations.

DATES: Comments must be received on or before February 20, 2015.

ADDRESSES: Interested parties may file a comment at https://ftcpublic.commentworks.com/FTC/focuseduconsent/ online or on paper, by 
following the instructions in the Request for Comment part of the 
SUPPLEMENTARY INFORMATION section below. Write ``Focus Education, LLC--
Consent Agreement; File No. 122 3153'' on your comment and file your 
comment online at https://ftcpublic.commentworks.com/FTC/focuseduconsent/ by following the instructions on the web-based form. 
If you prefer to file your comment on paper, write ``Focus Education, 
LLC--Consent Agreement; File No. 122 3153'' on your comment and on the 
envelope, and mail your comment to the following address: Federal Trade 
Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite 
CC-5610 (Annex D), Washington, DC 20580, or deliver your comment to the 
following address: Federal Trade Commission, Office of the Secretary, 
Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex 
D), Washington, DC 20024.

FOR FURTHER INFORMATION CONTACT: Annette Soberats, Bureau of Consumer 
Protection, (202-326-2921), 600 Pennsylvania Avenue NW., Washington, DC 
20580.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR Sec.  
2.34, notice is hereby given that the above-captioned consent agreement 
containing consent order to cease and desist, having been filed with 
and accepted, subject to final approval, by the Commission, has been 
placed on the public record for a period of thirty (30) days. The 
following Analysis to Aid Public Comment describes the terms of the 
consent agreement, and the allegations in the complaint. An electronic 
copy of the full text of the consent agreement package can be obtained 
from the FTC Home Page (for January 20, 2015), on the World Wide Web, 
at http://www.ftc.gov/os/actions.shtm.
    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before February 20, 
2015. Write ``Focus Education, LLC--Consent Agreement; File No. 122 
3153'' on your comment. Your comment--including your name and your 
state--will be placed on the public record of this proceeding, 
including, to the extent practicable, on the public Commission Web 
site, at http://www.ftc.gov/os/publiccomments.shtm. As a matter of 
discretion, the Commission tries to remove individuals' home contact 
information from comments before placing them on the Commission Web 
site.
    Because your comment will be made public, you are solely 
responsible for making sure that your comment does not include any 
sensitive personal information, like anyone's Social Security number, 
date of birth, driver's license number or other state identification 
number or foreign country equivalent, passport number, financial 
account number, or credit or debit card number. You are also solely 
responsible for making sure that your comment does not include any 
sensitive health information, like medical records or other 
individually identifiable health information. In addition, do not 
include any ``[t]rade secret or any commercial or financial information 
which . . . is privileged or confidential,'' as discussed in Section 
6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 
Sec.  4.10(a)(2). In particular, do not include competitively sensitive 
information such as costs, sales statistics, inventories, formulas, 
patterns, devices, manufacturing processes, or customer names.
    If you want the Commission to give your comment confidential 
treatment, you must file it in paper form, with a request for 
confidential treatment, and you have to follow the procedure explained 
in FTC Rule 4.9(c), 16 CFR Sec.  4.9(c).\1\ Your comment will be kept 
confidential only if the FTC General Counsel, in his or her sole 
discretion, grants your request in accordance with the law and the 
public interest.
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    \1\ In particular, the written request for confidential 
treatment that accompanies the comment must include the factual and 
legal basis for the request, and must identify the specific portions 
of the comment to be withheld from the public record. See FTC Rule 
4.9(c), 16 CFR Sec.  4.9(c).
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    Postal mail addressed to the Commission is subject to delay due to 
heightened security screening. As a result, we encourage you to submit 
your comments online. To make sure that the Commission considers your 
online comment, you must file it at https://ftcpublic.commentworks.com/FTC/focuseduconsent/ by following the instructions on the web-based 
form. If this Notice appears at http://www.regulations.gov/#!home, you 
also may file a comment through that Web site.
    If you file your comment on paper, write ``Focus Education, LLC--
Consent Agreement; File No. 122 3153'' on your comment and on the 
envelope, and mail your comment to the following address: Federal Trade 
Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite 
CC-5610 (Annex D), Washington, DC 20580, or deliver your comment to the 
following address: Federal Trade Commission, Office of the Secretary, 
Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex 
D), Washington, DC 20024. If possible, submit your paper comment to the 
Commission by courier or overnight service.
    Visit the Commission Web site at http://www.ftc.gov to read this 
Notice and the news release describing it. The FTC Act and other laws 
that the Commission administers permit the collection of public 
comments to consider and use in this proceeding as appropriate. The 
Commission will consider all timely and responsive public comments that 
it receives on or before February 20, 2015. You can find more 
information, including routine uses permitted by the Privacy Act, in 
the Commission's privacy policy, at http://www.ftc.gov/ftc/privacy.htm.

Analysis of Proposed Consent Order To Aid Public Comment

    The Federal Trade Commission (``FTC'' or ``Commission'') has 
accepted,

[[Page 4576]]

subject to final approval, an agreement containing a consent order from 
Focus Education, LLC (``Focus Education''), Chief Executive Officer, 
Michael Apstein, and Chief Financial Officer, John Able 
(``Respondents'').
    The proposed consent order (``proposed order'') has been placed on 
the public record for thirty (30) days for receipt of comments by 
interested persons. Comments received during this period will become 
part of the public record. After thirty (30) days, the Commission will 
again review the agreement and the comments received, and will decide 
whether it should withdraw from the agreement or make final the 
agreement's proposed order.
    This matter involves Focus Education's advertising for the ifocus 
System, which included the Jungle Rangers computer game and comic book, 
and information on children's behavior, exercise, and diet. The 
Commission's complaint alleges that the Respondents violated Sections 
5(a) and 12 of the Federal Trade Commission Act by making false or 
unsubstantiated representations that playing the ifocus System's Jungle 
Rangers computer game improves children's focus, memory, attention, 
behavior, and/or school performance, including in children with ADHD, 
and that these improvements were permanent. The complaint also alleges 
that Respondents violated Sections 5(a) and 12 by making false 
representations that scientific studies prove these claims.
    The proposed order includes injunctive relief that prohibits these 
alleged violations and fences in similar and related violations. For 
purposes of the order, ``Covered Product'' means any product, program, 
device, or service that purports to alter the brain's structure or 
function, improve cognitive abilities, behavior, or academic 
performance, or treat or lessen the symptoms of cognitive abnormalities 
or disorders, including ADHD.
    Part I of the Order prohibits the Respondents from making any 
representation that the ifocus System or any substantially similar 
product improves children's cognitive abilities, behavior, or academic 
performance, including in children with ADHD unless any such 
representation is non-misleading and the Respondents possess and rely 
upon competent and reliable scientific evidence. For purposes of this 
Part, competent and reliable scientific evidence is defined as ``human 
clinical testing of such product that is sufficient in quality and 
quantity, based on standards generally accepted by experts in the 
relevant field, when considered in light of the entire body of relevant 
and reliable scientific evidence, to substantiate that the 
representation is true. Such testing shall be (1) randomized, double-
blind, and adequately controlled; and (2) conducted by researchers 
qualified by training and experience to conduct such testing.'' In 
addition, competent and reliable scientific evidence is subject to the 
preservation requirements set forth in Part IV.
    Part II is a fencing-in provision. It prohibits the Respondents 
from making any claim about the benefits, performance, or efficacy of 
any Covered Product unless the claim is non-misleading and the 
Respondents possess competent and reliable scientific evidence that is 
sufficient in quality and quantity, when considered in light of the 
entire body of relevant and reliable scientific evidence, to 
substantiate that the representation is true. For purposes of this 
Part, Covered Product is defined as any product, program, device, or 
service that purports to alter the brain's structure or function, 
improve cognitive abilities, behavior, or academic performance, or 
treat or lessen the symptoms of cognitive abnormalities or disorders, 
including ADHD. Competent and reliable scientific evidence means 
``tests, analyses, research, or studies (1) that have been conducted 
and evaluated in an objective manner by qualified persons; (2) that are 
generally accepted in the profession to yield accurate and reliable 
results; and (3) as to which, when they are human clinical tests or 
studies, all underlying or supporting data and documents generally 
accepted by experts in the field as relevant to an assessment of such 
testing as set forth Part IV are available for inspection and 
production to the Commission.''
    Part III prohibits the Respondents from misrepresenting, in 
relation to the advertising of any Covered Product, (1) the results of 
any test, study, or research; or (2) that the benefits of any such 
Covered Product are scientifically proven.
    Part IV requires the Respondents, for human clinical tests or 
studies, to secure and preserve all underlying or supporting data and 
documents generally accepted by experts in the field as relevant to an 
assessment of the test. There is an exception for a ``Reliably 
Reported'' test, defined as a test published in a peer-reviewed journal 
that was not conducted, controlled, or sponsored by Respondents, 
affiliates, or others in the manufacturing and supply chain. Also, the 
published report must provide sufficient information about the test for 
experts in the relevant field to assess the reliability of the results.
    Part V contains recordkeeping requirements for advertisements and 
substantiation relevant to representations covered by Parts I through 
III of the order.
    Parts VI through IX of the proposed order require Respondents to: 
Deliver a copy of the order to principals, officers, directors, 
managers, employees, agents, and representatives having 
responsibilities with respect to the subject matter of the order; 
notify the Commission of changes in corporate structure, discontinuance 
of current business or employment, or affiliation with any new business 
or employment that might affect compliance obligations under the order; 
and file compliance reports with the Commission.
    Part X provides that the order will terminate after twenty (20) 
years, with certain exceptions.
    The purpose of this analysis is to facilitate public comment on the 
proposed order, and it is not intended to constitute an official 
interpretation of the complaint or proposed order, or to modify the 
proposed order's terms in any way.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2015-01516 Filed 1-27-15; 8:45 am]
BILLING CODE 6750-01-P