What your ads say and what the science supports: If the shoe doesn’t fit

By Lesley Fair
May 17, 2012 – 11:54am
According to the FTC, Skechers ® made false and deceptive claims about the benefits of Shape-ups ® and other Skechers ® brands. If you’re in the fitness or health business, the $40 million settlement should grab your attention. But the underlying principles apply to all advertisers. If you’re looking to get a leg up on substantiation, here are some footnotes to take from the case.

Proving ground. To support their representations, advertisers must have at least the level of proof they claim expressly or by implication to have. For example, Skechers’ ads referred to a “clinical trial,” “clinical case studies,” and “four clinical studies in the US and Japan.” Furthermore, using statistics to the second decimal place, Skechers’ ads touted pounds and percentages of fat that people lost by wearing Shape-ups, compared to other shoes. But even if your ads don’t cite specific studies, under FTC law you still need a reasonable basis for all express and implied claims conveyed to consumers. Where can you go for more information? One resource is the FTC’s Dietary Supplements: An Advertising Guide for Industry. Don’t let the title fool you. Even if supplements aren’t your line, it’s a useful resource for evaluating ad claims. If it helps, just think of it as An Advertising Guide for [Insert Your Company Name Here].

By the numbers. As the Dietary Supplement Guide explains, there’s no one-size-fits-all test protocol. But the methods you use have to be sound — and some basic standards have gained universal acceptance. For example, rocket scientists and English majors alike can agree on the importance of gathering data accurately. If the underlying numbers aren’t tallied with care, chances are the results won’t be reliable. According to the FTC’s complaint against Skechers, in one study, some participants wearing Shape-ups actually gained weight or had an increase in body fat, but the study falsely reported that they’d lost weight. Other subjects who were in the control group and lost weight were falsely attributed to the Shape-ups group. The FTC also raised concerns that data was missing or not collected for other participants. The message for marketers? As the Dietary Supplement Guide puts it, “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.”

Declaration of independence? According to the FTC’s complaint, Skechers’ ads conveyed that chiropractor Dr. Steven Gautreau “endorsed Defendant’s Shape-ups footwear, based upon his independent, objective study of the product.” What people weren’t told was that Skechers had paid Dr. Gautreau to conduct the study and that he was married to a Skechers marketing executive. The FTC alleged that consumers would have found that information material. Thus, Skechers’ failure to adequately disclose those facts was a deceptive practice in violation of Section 5. Is there material information you should be disclosing in your ads? It’s a fact-specific inquiry, of course. But legal standards aside, here’s one rule of thumb: Imagine yourself as the buyer, rather than seller. Would you want to know? Would the information be relevant to your purchase decision? Or for a real gut-check, how would you respond if your competitor failed to disclose similar info in an ad that knocked your product? Read The FTC’s Revised Endorsement Guides, What People are Asking for more on the topic.

Have questions about the Skechers refund program? Visit ftc.gov/skechers.

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