FTC Warns Marketers to “Shape Up or Tone Down”

Consumer Protection Alert



Actually, the full quote was “shape up your substantiation or tone down your claims” and the FTC official who said it was speaking at the announcement of a settlement with Skechers, the leading maker of “toning” fitness shoes. According to the FTC, Skechers made numerous false and deceptive claims about the weight loss and muscle-strengthening benefits people would receive from its toning shoes, compared to regular fitness footwear. These ads featured high-profile celebrities, such as Kim Kardashian and Brooke Burke. Toning shoe sales have increased exponentially in the last few years, from $17 million in 2008 to a peak of close to $1 billion in 2010. Among other things, Skechers has agreed to $40 million in consumer redress, plus a payment of $5 million to state attorneys general. The settlement comes just eight months after Reebok settled similar charges for $25 million.

The claims made, the lack of substantiation, and the proposed consent

The FTC claimed that Skechers made unsubstantiated claims with respect to four of their toning fitness shoes. Most of the complaint is devoted to Skechers’ claims for its “Shape-ups” brand shoes. Skechers claimed that Shape-ups would help people lose weight, and strengthen and tone their buttocks, legs, and abdominal muscles. Skechers’ ads touted the poundage and percentage of fat people lost using Shape-ups, citing clinical case studies and even detailed the amount lost to the second decimal place. However, two of the four studies were conducted by a chiropractor who was a compensated endorser for Shape-ups, and who is married to a Skechers executive. Additionally, the FTC stated that there were serious flaws in the studies. For instance, one study lacked a control group, and the data was altered and incomplete. Some participants actually gained weight or body fat percentage, but were falsely reported as having lost weight or body fat percentage. In one of the studies, two subjects who were in the control group and lost weight had their data falsely attributed to the Shape-ups group, while data were missing or not collected for some of the study's participants. The study also included the wives of two of the study's co-authors, the parents of one of the study's co-authors, and employees and associates of the chiropractor.

The complaint also alleges that Skechers could not substantiate claims that (a) Shape-ups provided more muscle toning and strengthening, as well as improved overall circulation and aerobic conditioning, than regular fitness shoes; (b) Resistance Runner shoes will increase “muscle activation”; and (c) Shape-ups Toners will cause more weight loss and muscle toning than walking in standard fitness shoes.

The proposed settlement (FTC settlements must go through a public comment period) is both injunctive and remedial in nature. Under the FTC’s settlement, unless supported by “competent and reliable scientific evidence,” Skechers is barred from making claims for its toning shoes related to:

  • strengthening;
  • weight loss; and
  • any other health or fitness-related benefits from toning shoes, including claims regarding caloric expenditure, calorie burn, blood circulation, aerobic conditioning, muscle tone, and muscle activation.

Additionally, Skechers may not misrepresent in any way “the existence, contents, validity, results, conclusions, or interpretations of any test, study, or research.”

In the last few years, mainly to avoid subsequent court battles over what constitutes “competent and reliable scientific evidence” (see prior alert), the FTC has defined the term in the settlement itself, and this case is no different. However, what will suffice as substantiation differs depending on the type of claim made. Thus, for muscle strengthening claims, competent and reliable scientific evidence consists of “at least one adequate and we1l-controlled human clinical study . . . of at least six-week duration.” Weight loss claims, on the other hand, require “at least two adequate and well-controlled human clinical studies . . . conducted by different researchers, independently of each other.” For claims regarding other health and fitness-related benefits, “any study that has been conducted and evaluated in an objective manner by qualified persons and are generally accepted in the profession to yield accurate and reliable results” will qualify as substantiation. The differing levels of substantiation presumably relate to the perceived seriousness and materiality of the claim being asserted.

Finally, Skechers agreed to provide $40 million in consumer redress. Additionally, Skechers promises to pay an additional $5 million to the states that participated in the investigation.

Lessons to be learned

The FTC made a big splash announcing the settlement, even going so far as to publicize two days in advance that it will hold a press conference to announce an action against a “major marketer of consumer goods.” Of course, the $45 million price tag caught a few eyes as well. Accordingly, it is appropriate to glean a few lessons from this episode:

  • First, the FTC’s enforcement against deceptive advertising is not simply alive and well, but thriving. Almost weekly the FTC’s Bureau of Consumer Protection announces another consumer protection action, and as we see here, it will go after consumer redress if it feels the situation warrants.
  • Second, the FTC has once again reiterated how seriously it takes health-related claims. Clinical studies conducted under generally accepted scientific protocols, which include a control group, are absolutely necessary. While the number of such studies may differ depending on the claim, it is imperative that each study be conducted in a scientifically professional manner. Moreover, the advertiser must ensure that the data utilized in the studies was maintained in a manner consistent with scientific studies. As the FTC’s Dietary Supplement Guide states, “Where the claim is one that would require scientific support, the research should be conducted in a competent and reliable manner to yield meaningful results.”
  • Third, if a consumer would find the information material, disclose it. Indeed, the complaint spends a great deal of time explaining the lack of independence by the chiropractor who performed the studies for Skechers. Failure to divulge the lack of independence of an endorser or study author is a serious no-no.
  • Finally, it is not just the FTC these days that you have to be worried about. Along with the FTC, the Tennessee and Ohio Attorneys General Offices led a multistate investigation that included attorneys general from 42 other states and the District of Columbia.

If you have any questions regarding advertising substantiation or any other consumer protection matter, please contact Thor Urness.