In the Matter of Carrot Neurotechnology, Inc., File No. 1423132
There are five unfortunate aspects of FTC's consent order for Carrot Neurotechnology: (1) I do not understand the basis for the claim that "Seitz's studies and other "scientific research" do not prove Ultimeyes improves vision." Given his three articles on this matter, FTC's determination dismisses the scientific norms in Prof. Seitz's field, both with respect to how research is conducted and how it is evaluated for publication via peer review. Also, this research is supported by NIH, and thus it was further reviewed by a respected panel of peers and knowledgeable program officials. (2) Even if one allows that this research does meet the required standard of proof, the severity of the infraction should take risk into account -- the probability and magnitude of harm from using the app. Given the ubiquity of games and apps, this app does not seem to involve more harm or discomfort than would be "ordinarily encountered in daily life or during the performance of routine physical or psychological examinations or tests" (HHS' definition of minimal risk). Even if ineffective, HHS specifies that minimal risk research need not yield any benefit. I realize that this commercialized product is not research, but such regulations nevertheless provide relevant context. (3) Ignorance of laws is not a good defense, but courts have also followed a "fair notice" doctrine whereby whether the perpetrator could have been aware that the conduct was proscribed is considered. In an era with thousands of "brain games" available, it seems plausible that Prof. Seitz believed that such marketing was legal. He was certainly unaware that a heavy personal fine could be levied. (4) Relatedly, it is harsh, even inhumane for the federal government to drain the life savings of a thoughtful, well-respected scientist and put him and his family into debt. The size of the fine is inordinate, and the fact that it was applied to Prof. Seitz personally is disturbing. (5) Federal granting agencies have put a premium on basic science that can be translated for applications such as diagnosis and treatment. Prof. Seitz was on the forefront of such efforts in vision science. I worry that this punishment will send chills through other researchers, discouraging them from developing important applications of their work that could benefit society. I completely endorse FTC's essential role in protecting consumers, but the response in this case has been disproportionate and should be reconsidered.