By Cassandra A. Soltis –
Last week, the Federal Trade Commission (“FTC”) announced a settlement with Reebok International Ltd. (“Reebok” or “the Company”) for charges that the Company disseminated false and misleading advertisements for its EasyTone and RunTone shoes. The FTC’s Complaint alleged, among other things, that Reebok falsely claimed the EasyTone and RunTone shoes “will tone and strengthen the legs and the butt more than” walking and running in typical walking and running shoes. Complaint at 9-10, Federal Trade Commission v. Reebok Int’l Ltd., No. 1:11-cv-02046-DCN (N.D. Ohio Sept. 28, 2011). The Complaint also alleged that Reebok falsely advertised that laboratory tests showed that EasyTone shoes “improve muscle tone and strength by 28% in the gluteus maximus, 11% in the hamstrings, and 11% in the calves.” Id. at 9.
The Judgment provides, in pertinent part, that Reebok may not advertise or otherwise represent through “use of a product name, endorsement, depiction, or illustration” footwear and apparel purporting to improve muscle tone and strength “unless the representation is non-misleading and, at the time of making such representation, [Reebok] possesses and relies upon competent and reliable scientific evidence that substantiates that the representation is true.” Judgment at 5 (emphasis added). The Judgment explains that “competent and reliable scientific evidence shall consist of at least one Adequate and Well-Controlled Human Clinical Study . . . that conforms to acceptable designs and protocols, the result of which, when considered in light of the entire body of relevant and reliable scientific evidence, is sufficient to substantiate that the representation is true.” Id. at 5-6. The Judgment includes what appears to be a new definition of “Adequate and Well-Controlled Human Clinical Study,” defining it as “a clinical study that is randomized, controlled, blinded to the maximum extent practicable, of at least six weeks duration, uses an appropriate measurement tool or tools . . . and is conducted by persons qualified by training and experience to conduct and measure compliance with such a study.” Id. at 4. We will have to wait and see whether this language will be used in future cases.
Although the Judgment applies only to Reebok, it contains, as the FTC indicated, “compliance nuggets” that may be relevant to other advertisers. Of note is the Complaint’s description of the women in the television and Internet advertisements: “[t]hese advertisements frequently display women who are very toned, scantily-clad, and sometimes nude,” and “on screen . . . [was a] toned woman wearing a tank top and very short shorts.” Complaint at 5 (emphases added). In addition, the Complaint explains that after the model claims the shoes will “help make your legs and butt look great,” the camera “zooms to [the] woman’s backside” multiple times. Id. at 5-6. These notations, along with the Judgment enjoining misrepresentations made through “depiction” or “illustration,” suggest that advertisers should be careful to not implicitly overpromise product results by using models demonstrating results that most consumers will never achieve. See also FTC, “How’s That Workout Working Out? Tips on Buying Fitness Gear” (cautioning consumers to question whether the ”six-pack[s]” of the “chiseled models in the ads” are a “result of the product they’re peddling – or months in the gym and years of healthy habits”).
In addition, the Judgment’s definition of “Adequate and Well-Controlled Human Clinical Study” is a reminder that there is no “one size fits all” study design to support product claims. The Judgment indicates that to substantiate the types of claims Reebok made for its shoes, the duration of a clinical study must be “at least six weeks” and use “appropriate measurement tool[s].” Judgment at 4. Accordingly, advertisers should be sure to use appropriate experts – that is, persons “qualified by training and experience to conduct and measure” the effectiveness of the product at issue – to design studies having a proper duration and using suitable measuring tools to yield reliable results. Id. at 4.
Reebok has agreed to pay $25 million in consumer refunds to settle the FTC’s charges. The court approved the Judgment on September 29, 2011.