After a wave of regulatory activity and class action litigation against the makers of “toning shoes,” the suits are reaching resolution.
Over the last two years, suits were brought across the country against companies including New Balance, Skechers and Target alleging that the companies made false and deceptive ad claims about the health benefits of the shoes. Reebok faced a challenge with the National Advertising Division as well as civil suits before reaching a $25 million settlement with the Federal Trade Commission.
The suits are now in various states of litigation from pre-trial motions to potential settlements.
In Minnesota, a federal judge recently declined to dismiss the class action against Target. The shoebox for the company’s TrimStep shoes contained statements that the shoes could provide various health benefits to the user, including claims that the shoes could help promote muscle toning in the legs, help improve the user’s posture, and help relieve stress on the user’s feet and joints.
Target argued that the claims were puffery and also included “disclaiming” and “noncommittal” language such that no reasonable person would rely on the statements that the shoes provide any physical benefits. For example, the shoebox had language like “Every person’s body is different, and may experience more or less benefit to different muscle groups than others.”
But the court said the TrimStep shoebox had claims that the footwear provides specific health benefits claims such as increased muscle toning in the legs and reduced stress in the feet and joints. “Even in context, these statements are descriptions of characteristics of the product that are specific and measurable claims, ‘capable of being proved false,’” U.S. District Court Judge Joan N. Ericksen wrote.
In denying Target’s motion to dismiss, the court gave no credence to Target’s puffery assertions. Because the statements are not “exaggerated statements of bluster or boast upon which no reasonable consumer would rely” nor “vague or highly subjective claims of product superiority,” Target could not argue they were puffery.
Meanwhile, New Balance has reached a settlement in the class action suit alleging it made false and deceptive claims about its Truebalance toning shoes, for a total of $3.75 million.
Under the settlement, which still must be approved by the court, class members could receive up to $100 for each pair of shoes, which “represents slightly more than the full purchase price class members likely paid for these products,” according to the parties’ joint motion for settlement.
New Balance would pay $2.3 million to create a fund for class members, $500,000 for notice and administration costs, and an amount not to exceed $950,000 for counsel fees.
The company also agreed to modify its claims. New Balance would be permanently enjoined from making claims that any of its shoes are effective in strengthening muscles or that wearing such shoes will result in a quantified percentage of muscle toning or strengthening absent at least one clinical study. With respect to its toning shoes, any New Balance health or fitness benefit claims must be non-misleading and based upon competent and reliable scientific evidence. And the company could not misrepresent the existence, contents, validity, results, conclusions, or interpretations of any test, study, or research relating to its footwear.
To read the court’s order denying Target’s motion to dismiss in Laughlin v. Target, click here.
To read the proposed settlement in Carey v. New Balance, click here.
Why it matters: Advertisers should be careful to use claims that are substantiated and that studies used in support produce accurate, verifiable results. As the companies swept up in the big business of toning shoes can attest – retail sales hit $145 million in 2009 –failure to do so can result in regulatory action and class actions with the potential for monetary damages.