With a product name like “Your Baby Can Read!” – exclamation point in the original – it didn’t take long for consumers to figure out what the marketers were promising. The company’s massive ad campaign featured 14-month-olds mastering vocabulary flashcards, two-year-olds reading books, and an array of charts, graphs, and studies purporting to show that Your Baby Can Read! was scientifically proven to work.
The FTC filed suit in 2012, citing chapter and verse where the company’s claims weren’t supported by the evidence. What representations did the FTC challenge? That the product would teach kids as young as nine months old to read, that 3- and 4-year-olds would be reading books like Harry Potter, that little ones would get an early start on academics that would allow them to do better in school than other kids, and that the company’s claims were proven by scientific studies. The lawsuit also charged that the creator of the program, Robert Titzer, Ph.D., offered an unlawful expert endorsement of the product.
Two years ago, the corporate defendant and the company president settled the FTC action, but Dr. Titzer elected to head to trial. That case just settled in federal court in California. Although the terms of the stipulated order apply just to Dr. Titzer and Infant Learning, Inc., a company he controls, the settlement offers some insights for advertisers.
Experts need to exercise their expertise. It may be a tautology, but when experts endorse products, the law requires that they act like experts. Dr. Titzer claimed to be an expert in infant research and made a host of representations about Your Baby Can Read! But according to the FTC, he didn’t do the kind of examination or testing of the product an expert in infant research would normally conduct to support those conclusions. The take-away tip for marketers: Just getting a sign-off from a purported expert isn’t enough. That person must base their findings on the kind of evaluation other experts in field believe is necessary to back up the opinions conveyed through the endorsement.
Is the product name conveying a claim? The settlement prohibits misrepresentations about teaching reading, cognitive ability, school performance, or related claims. What’s more, Dr. Titzer won’t be using the term “Your Baby Can Read” as part of a product name or logo. We hear it a lot from advertisers: “But it’s our product name!” Sure – but if the name conveys a false or unsubstantiated representation to consumers, it could constitute a misleading claim under the FTC Act.
The FTC is willing to go to court to protect consumers. Some cases settle before a lawsuit is filed. Others head into the demanding process of trial preparation. If matters can be resolved reasonably before litigation, that’s usually the preferred path. But if it’s necessary to go to court to make sure advertising claims are truthful and substantiated, that’s what we’ll do.