New Congressional Act Sparks Debate Among Concussion Experts about Crackdown on Product Claims

By Ellen Rugeley

As concern about concussion awareness in sports has been on the rise, more companies have begun marketing so-called “anti-concussion” products. However, these companies have recently come under fire for making ”misleading” claims and Congressional efforts have been made to regulate the use of these claims as well as setting new scientific standards for the safety of such equipment to mitigate the risk of concussions in youth sports.

In a hearing of the Senate Commerce, Science and Transportation Committee, which oversees consumer product safety and sports issues, the dangers of marketing these ‘anti-concussion’ products were brought to light.

In a statement prepared for the hearing, Senator Jay Rockefeller said that he finds it “so disturbing that some sports equipment manufacturers are exploiting our growing concerns about sports concussions to market so-called ‘anti-concussion’ products to athletes and their parents.”

These ‘anti-concussion’ products capitalize on concerns about the dangers of concussions and result in a false sense of security for both players and worried parents.

“The potential harm that I see being caused by products that claim to prevent concussions when they do not is far more than simply the financial harm of paying more for something that isn’t likely to work as claimed,” said Dr. Jeffrey Kutcher, director of Michigan Neurosport. “It is the harm that comes from having a false sense of security, from not understanding how the injury occurs and what can actually be done to prevent it.”

Senator Tom Udall has asked the Federal Trade Commission to investigate these “misleading safety claims and deceptive practices.” Senator Udall and Representative Bill Pascrell recently introduced the Children’s Sports Athletic Equipment Safety Act that would ensure that new and reconditioned football helmets for high school and younger players meet safety standards that address concussion risk and the needs of youth athletes. The bill also increases potential penalties for using false injury prevention claims to sell helmets and other sports equipment.

However, some feel that the use of federal law and regulation may be unnecessary.

Hosea Harvey, assistant professor of law and political science at Temple University’s Beasley School of Law and author of “The Impact of Traumatic Brain Injury- and Concussion-Related Laws,” a commissioned work by the Public Health Law Research Program, a National Program Office of the Robert Wood Johnson Foundation, has “three broad areas of concern with the Children’s Sports Athletic Equipment Safety Act (the Act), as it is currently formulated.” According to Harvey, “if the general public and the more sophisticated world of helmet (and other equipment) buyers a) have adequate information from a variety of sources and b) aren’t likely to be persuaded by the marketing efforts of certain manufacturers, a sweeping new federal mandate may not be the best answer to the problem of ‘misleading claims’.”

Based on a lack of scientific consensus, Harvey feels that certain parts of the proposed law may actually make the situation worse. “It is highly unclear how federal regulators will be in such a scientifically enlightened position that they will know more about a) the science of concussion and b) how they can improve helmet design better than doctors, scientists and helmet manufacturers.”

Harvey also believes that “focusing on invalidating the anti-concussive claims of new helmet designs also is a bit counter-intuitive given the complicated way that helmets are remanufactured for repeated use over the years, which may also make them less effective for harm-reduction purposes.”

“For example, given a choice between new helmet designs and re-conditioned helmets that are 5-10 years old, which would lawmakers rather youth athletes use? If they would all choose ‘newer helmet,’ that choice suggests that, by and large, newer helmets are likely to reduce TBI risk more than older helmets.”

Harvey also notes that these TBI injuries occur in a variety of youth sports for which the Act has little or no impact. For example, youth cheerleading and soccer do not use helmets, yet these sports account for a notable percentage of TBI’s. “By focusing primarily on helmet manufacturer claims, the current Congressional debate cabins certain sports-particularly those impacting girls and women athletes.”

The Consumer Product Safety Commission has also been asked to issue helmet safety standards to protect against concussions- if the existing standards are not improved. However, according to Larry Coben, concussion expert and attorney, “That demand was made apparently under the mistaken belief that hockey helmet standards test for concussion risks but other standards do not.”

Coben said that “providing helmet protection against concussions is not nearly as simple as saying it. For years, medical researchers have struggled on three fronts, asking: (1) What kinds of forces cause concussions without causing localized brain trauma, (2) How can you test to measure these forces, and (3) How can helmet design reduce these forces?”

Not only is it difficult to figure out how much movement must happen before a person suffers a minor or major concussion, but most helmet test devices (a test dummy) are not designed to accurately measure the rotational forces the brain “sees” in causing concussions.

In order to reach a solution, Coben feels that, “First, testing standards need to increase the force level to which testing is conducted. Second, the pass/fail criteria must be lowered to force helmet manufacturers to find new materials and methods of design. Third, the consumer needs to be given information about each model helmet’s test scores. Fourth, helmet testing needs to be changed to account for tangential impacts and measure the rotational acceleration to test the dummy’s head. Fifth, a more stringent system of indentifying and removing older model helmets from team usage must be adopted.”

Despite its perceived short-comings the Act is still supported by many.

When asked how he felt about the Act, Dr. Sol Cogan, President of the Professional Football Chiropractic Society said, “Although we appreciate that sports equipment companies have made great strides and continue to improve the safety equipment, we believe it is irresponsible to make false or misleading claims about safety benefits. If a claim is made that is untrue about the safety benefits of the product, it can give the athlete a false sense of security, and therefore, result in greater injury.”

Jean Rickerson, founder and editor of www.SportsConcussions.org said, “We see evidence that purchasing decisions are indeed made based on manufacturers’ claims that a product reduces or prevents concussions in youth athletes. Parents eager to protect their children and faced with few options to do so, are very vulnerable. Companies that make such claims, or develop rating systems for public consumption while appealing to parents who may lack sufficient information, are doing the public a grave disservice. Legislation preventing such claims would be welcomed by many.”

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