Monday, October 24, 2011

Think Your Ad or Package Claims Have Adequate Substantiation? The Reebok Case Has Some Lessons

            Recently the FTC announced a high-profile agreement to settle its lawsuit against  athletic shoe maker Reebok The agreement requires Reebok to pay  $25 Million for refunds to people who bought Reebok EasyTone or RunTone shoes or apparel. Reebok also agreed to an onerous injunction against making claims that the shoes were effective in strengthening muscles or that wearing the shoes will result in quantified percentage or amounts or muscle toning or strengthening.
            The FTC press release seemed to imply that Reebok had taken almost no steps to substantiate its claims.  According to the FTC complaint, Reebok made unsupported claims in advertisements that walking in its EasyTone shoes and running in its RunTone running shoes strengthen and tone key leg and buttock (gluteus maximus) muscles more than regular shoes.  The ads claimed, for example: “Get a Better Butt.  Get Better Legs.  Get EasyTone.  EasyTone sole technology gives you up to 28% more toning in your calves, hamstrings , and, oh yes, your butt.”
            Here is one of Reebok’s EasyTone advertisements:
            A close examination of an earlier proceeding  of the National Advertising Division (NAD) of the Better Business Bureau suggests that Reebok had undertaken scientific testing to support its claims, but that its testing was inadequate to serve as “reliable and competent substantiation for the claims” required by Sec. 5 of the FTC Act.
Actual Testing by Reebok
            The NAD examined some of the same products and claims as in the FTC action  While the NAD found that Reebok had conducted an independent lab study by a qualified expert, it. concluded that the study was too small and did not necessarily reflect real world conditions of women using the shoes.  In other words, Reebok lacked adequate substantiation for the claims made in its advertisements .
Definition of Adequate Substantiation
            The Reebok case demonstrates that good faith substantiation efforts do not necessarily immunize a company from charges of failure to meet the FTC standard of reliable and competent evidence. The agreed injunction gives some guidance on the type of scientific testing the FTC deems adequate substantiation: “For purposes of this Section, competent and reliable scientific evidence shall consist of at least one
·         clinical study . . . of at least six weeks duration;
·         [that] uses an appropriate measurement tool or tools (e.g., a dynamometer if measuring strength);
·         . . . is conducted by persons qualified by training and experience to conduct and measure compliance with such a study;
·          conforms to acceptable designs and protocols, and
·         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.”
[bullet points and indenting added for clarity]           
            In light of the guidance provided by this high-profile settlement, the key question companies should ask themselves is, do the company’s advertising claims (or that of its competitors) meet these elements of competent and reliable substantiation?
     Authors:       Paul Van Slyke               Greg Casamento                 Tom Casagrande