May 21, 2012

Skechers Pays Up for its Shape-Ups

Consumer Advertising Law Blog

Under a settlement agreement announced with the FTC and 44 state attorneys generals, Skechers has agreed to pay $40 million to resolve allegations that it made unfounded claims regarding the health and fitness benefits of its Shape-Up and Tone-Up shoes. Last fall, when the FTC announced a similar settlement with Reebok, maker of EasyTone and RunTone toning shoes, it warned national advertisers to "exercise some responsibility" in their message. Now, David Vladck, director of the agency's consumer protection bureau, wants advertisers to know they must "shape up [their] substantiation or tone down [their] claims," lest misled consumers give their wallets a workout with false hopes of an effortlessly transformed derriere.


Citing a number of Skechers' high profile ads, including one featuring Kim Kardashian that ran during the 2011 Super Bowl, the agency's complaint against Skechers alleged that the market leader of the billion dollar toning shoe industry claimed its products would increase consumers' weight loss and muscle tone and strength, and improve posture, but lacked adequate substantiation to back up these statements. Perhaps the most salacious of allegations, that Skechers supported its claims, in part, with the results of an "independent clinical study," conducted by the spouse of a Skechers marketing executive. The study had "numerous defects" – for instance, Shape-Ups wearers who gained weight during the study were incorrectly reported as having lost weight, and some of the study participants were employed by the executive's spouse. Skechers is also alleged to have cherry-picked results from other studies and, in regards to its Tone-Up shoes, made claims that the shoes were "designed to help burn more calories," without conducting any product-specific studies.

Skechers has denied any wrongdoing, stating it settled the suit to avoid the costs and distraction of "defending multiple lawsuits in multiple courts across the country." The settlement requires the company to refrain from making any claims regarding the health benefits of its toning shoes unless they are supported by competent and reliable scientific evidence, a requirement that varies under the agreement by claim type. Weight loss claims must be supported by "at least two adequate and well controlled human clinical studies," whereas strengthening claims require one such study, which must run for at least six weeks. The settlement defines "adequate and well controlled" studies as those that are randomized, blinded to the "maximum extent practicable," and, if testing for weight-loss or fat reduction, controlled for "dietary intake." All other health or fitness claims, including those of calorie burn or muscle tone, must be based on "tests, analyses, research or studies that have been conducted and evaluated in an objective manner by qualified persons."

With this suit, and several other recent settlements, the FTC has made clear that it is watching advertisers' health and fitness-related claims, and is keen to ensure that such claims are properly supported. It is also clear -- as we have observed before -- that the agency is still intent on raising the bar as to what qualifies as competent and reliable scientific evidence by incorporating stringent requirements for the satisfaction of this standard into its settlement agreements. Advertisers in the health and fitness industries should be wary that claims of health or wellness benefits lacking strong support may have more than minor consequences.

© Arnold & Porter Kaye Scholer LLP 2012 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.


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