On September 29, 2011, the Federal Trade Commission (FTC) issued an Order for Reebok International (RBK) to pay $25 million in refunds to consumers of its EasyTone and RunTone shoes (Reebok Toning Shoes), and permanently enjoined Reebok from making claims that such products are effective in strengthening muscles or that wearing such products will result in quantified percentage or amount of muscle toning or strengthening. Since the Internet has spawned a deluge of new marketing channels, Internet attorneys, marketers and advisors need to become sensitive to laws relating to deceptive advertising.
According to the FTC Complaint issued on September 28, 2011, the FTC concluded that Reebok deceptively claimed that the Reebok Toning Shoes had the special ability to strengthen legs and backsides. The FTC found that there was no scientific evidence to back up these claims. Therefore, these claims were both false and deceptive in violation of the FTC Act.
Based upon the FTC Complaint, it would be reasonable to conclude that Reebok out and out lied to consumers. What motive could such large and successful company have for doing such a thing? Well for starters, the market for toning shoes was estimated to be $1 billion in 2010.
The specific sections of the FTC Act that the FTC claims Reebok violated are: Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), which prohibits “unfair or deceptive acts or practices in or affecting commerce” and Section 12 of the FTC Act, 15 U.S.C. § 52, which prohibits the dissemination of any false advertisement in or affecting commerce for the purpose of inducing, or which is likely to induce, the purchase of food, drugs, devices, services, or cosmetics.” For the purposes of Section 12 of the FTC Act, the Reebok Toning Shoes are considered “device[s]”.
Specific False Representations
According to the FTC Complaint: Reebok represented, among other things, that walking in Reebok Toning Shoes “is proven to tone and strengthen the lower body — toning and strengthening the gluteus maximus muscle 28% more than walking in a typical walking shoe, and toning and strengthening both the hamstring and calf muscles 11% more than walking in a typical walking shoe.” Reebok further represented “that running in RunTone shoes increases muscle activation, toning, strength, and endurance as compared to running in typical running shoes.”
Even before the FTC Order, a major industry group had questioned the claims contained in the Reebok Toning Shoe advertising campaign. On January 10, 2011, the National Advertising Division (NAD) had recommended in a decision that Reebok discontinue certain claims Reebok was making for the Reebok Toning Shoe line made in advertising due to failure of Reebok to provide substantiation for its fitness claims. The NAD decision noted that Reebok claimed that the Reebok Toning Shoes “feature something called ‘moving air technology,’ which involves pockets of shifting air. This allegedly creates a phenomenon called ‘micro-instability,’ something akin to what happens when one sits on a stability ball or stands on a wobble-board.” Reebok when responding to NAD’s inquiry, claimed that the Reebok Toning Shoes are the only fitness shoes that incorporate a “balance ball” design on the soles to create instability to each step which, in turn, requires muscles to work harder.
Supporting Advertising Claims
In response to the NAD request for substantiation, Reebok offered as support a study that it commissioned in 2008.The NAD reviewed a study that Reebok commissioned in 2008 and concluded that the study did not support Reebok’s claims. The study commissioned by Reebok only examined five subjects some wearing the Reebok Toning Shoes, some wearing regular walking shoes and others wearing no shoes. Electrodes were attached to key muscle areas. The subjects chose their own pace for five minutes on a treadmill. The NAD concluded that: “[T]his was a very small scale study both in number of participants and duration of the study,” and that a sample size of only five subjects is not “representative of the universe of consumers to whom this product making broad performance claims is targeted. It is well-established that tests offered to support product performance claims must reflect real world conditions. Here, the only testing that was conducted was on a treadmill for a five-minute period of time.” Reebok responded in a statement merely that it disagreed with the NAD’s conclusions.
Manufacturers and advertisers should carefully take note of what the FTC requires in order to support claims similar to those made by Reebok. Such evidence must result from a well-controlled human clinical study which conforms to acceptable designs and protocols. Competent and reliable scientific evidence means tests, analyses, research, or studies that have been conducted and evaluated in an objective manner by qualified persons and are generally accepted in the profession to yield accurate and reliable results.