The Federal Trade Commission (“FTC”) announced on September 28, 2011 that it has entered into a stipulated judgment with Reebok to settle false advertising claims brought against the company by the FTC. In the settlement, Reebok agreed to cease making muscle toning and other claims for its toning shoes and agreed to pay $25,000,000 into a fund administered by the FTC for the compensation of consumers. Although Reebok admits no wrong-doing in the settlement, in addition to agreeing to deposit the $25,000,000 into the fund, the company also agreed that it would not:
- make claims that toning shoes and other toning apparel are effective in strengthening muscles, or that using the footwear will result in a specific percentage or amount of muscle toning or strengthening, unless the claims are true and backed by scientific evidence;
- make any health or fitness-related efficacy claims for toning shoes and other toning apparel unless the claims are true and backed by scientific evidence; and
- misrepresent any tests, studies, or research results regarding toning shoes and other toning apparel.
Among the claims that the FTC took issue with were advertisements for Reebok’s EasyTone walking shoes, RunTone running shoes, and EasyTone flip flops that stated that the soles of the shoes feature pockets of moving air to create “micro instability” that tones and strengthens muscles as you walk or run. According to the FTC Complaint, the company made unsupported claims that walking or running in its shoes would strengthen and tone key leg and buttock muscles more effectively than walking or running in regular shoes. The FTC’s complaint also alleges that Reebok falsely claimed that walking in EasyTone footwear had been proven to lead to 28 percent more strength and tone in the buttock muscles, 11 percent more strength and tone in the hamstring muscles, and 11 percent more strength and tone in the calf muscles than regular walking shoes.
Although Reebok denies any wrong-doing, it is clear from the terms of the settlement that the company did not possess the necessary evidence to substantiate the advertising claims that it was making for its products. As such, this case serves as a timely reminder to all marketers of health related products, whether they be nutritional supplements, weight loss products, or toning footwear, that they must have “competent and reliable scientific evidence” in their files to support the claims that are made in advertising materials for their products. Bear in mind that anecdotal evidence such as customer testimonials does not satisfy this standard. Nor do purported scientific studies that are of dubious quality. Competent and reliable scientific evidence is defined in FTC cases as “tests, analyses, research, studies, or other evidence based on the expertise of professionals in the relevant area, that have been conducted and evaluated in an objective manner by persons qualified to do so, using procedures generally accepted in the profession to yield accurate and reliable results.”
To view the FTC’s complaint and the stipulated judgment, go to http://www.ftc.gov/os/caselist/1023070/index.shtm.