Vibram FiveFingers Class Action Lawsuit — Does It Have Merit?

Vibram FiveFingers Class Action Lawsuit — Does It Have Merit?
By Steven Sashen, Invisible Shoes
vibram-fivefingers2.jpg
BIG news in the barefoot running shoe world today. Vibram has been named as the defendant in a class action lawsuit seeking $5,000,000 in damages for the use of deceptive statements about the health benefits of Vibram FiveFingers.

Is there anything to the case?

Well, I’m not a lawyer, and I don’t play one on TV.

But I read the case (posted here), and have some thoughts (and I’m looking forward to yours).

My first few thoughts, having nothing to do with the merits of the case, are:

a) I like Vibram. Even though the products don’t work for me, and as you know I’ve teased them (about smell and the primate styling), if it weren’t for them, I wouldn’t be here. The popularity of FiveFingers and their marketing in the last few years has lifted the tide of the entire barefoot/minimalist footwear market, and I’ve been a beneficiary. A year and a half ago, I said to Vibram CEO Tony Post, “Thanks for doing the heavy lifting!”​
b) This case could be the best thing that happens to the barefoot/minimalist shoe world, regardless of the outcome. How? Because it could help clear up the way language is used in marketing minimalist products, change unrealistic expectations of certain customers, and inspire even more research into the benefits (or lack thereof) of various “barefoot inspired” products.​
It’s no secret that I’ve had my hackles raised when any number of the big shoe companies pull out a “lightweight” sneaker (6-12 ounces) with an inch of heel lift, massive toe spring, and a healthy dose of foam padding, and claimed it was “just like barefoot.” And here I sit with a 3.4 ounce, 4mm thick piece of flexible rubber, thinking, “Uh… really?”

Perhaps this case, or merely the conversation around it, will add a much-needed dose of clarity.

Quick aside: Let me play Uri Geller and give you my prediction about the outcome of this case: a semi-expensive settlement (which, for all I know is the reason the suit was filed in the first place).

Okay, onto the case.

In essence this case is similar to those against Skechers Shape-ups (ongoing) and Reebok “toning shoes” (Reebok settled for $25 million), where the plaintiffs argued that there was no scientific basis for certain claims that the shoe companies were making, that they sometimes inaccurately stated there was such a scientific basis, and that they enticed customers to pay a premium for the product based on the idea that they (the customers) would get various claimed benefits.

This suit describes how Vibram has claimed that running in VFFs will provide the following benefits:
  • Improved foot health
  • Reduced risk of injury
  • Strengthened muscles in feet and lower legs
  • Stimulated neural function improving balance, agility and range of motion
  • Improved spine alignment
  • Improved posture
  • Reduced lower back pain
  • Improved proprioception and body awareness
Here as well, the plaintiffs say there is no scientific backing for these claims; that claims there is are untrue; that if any of the claims are true there’s no evidence that VFFs do these any better than regular running shoes and, therefore; these claims are fraudulent and deceptive and that Vibram has profited by enticing customers to pay a premium price to receive benefits that Vibram cannot reliably deliver.

The case adds that Vibram’s fundamental claim — that VFFs simulate being barefoot — has no proof to support it, either. In fact, the action quotes the ACE study which showed that runners in Vibrams pronate more than when they’re barefoot as an example of how that claim is false.

Now, I can guess what many of you are thinking: How is this different than my box of Cheerios, that says “supports colon health” or my vitamin that says “promotes strong bones”?

Good question.

In the food and supplement world, those kinds of claims are called “structure/function claims.” The FDA uses very specific language to tell companies how to use very non-specific language about their products. The law is designed, at one level, to prevent supplement and food companies from making “drug-like” claims, like “cures cancer AND baldness.” On the other hand, it allows companies to make it sound like taking 3 Mega-Ultra-Men’s Formula capsules every day will make you healthy, wealthy, and able to bend steel with your mind.

I think it’s a poorly designed law (sponsored by congress-people who, wouldn’t you know it, come from states with a lot of nutritional supplement companies), but it is a law and it does have specific guidelines and rules.

I don’t know if there’s something similar for footwear. But few would argue that if you make a specific claim, you have to be able to back it up.

Looking back at the claims Vibram makes, I’m sure you can see that some of these are testable, and others have a “keeps your colon happy” flavor. Some have a bit of both: Stimulates Neural Function… a bit vague, but no real problem. “Improves balance and agility”… well that’s testable and I’m not sure there’s an independent study to back that up.

“Reduced risk of injury” and “strengthened muscles” seem testable. “Improve foot health” and “promote spine alignment” are more like what you see on the bottle of every supplement at Whole Foods.

I’ll admit that I take issue with one claim Vibram makes, mentioned elsewhere in the complaint: “No footwear comes closer to recreating this natural sensation than Vibram FiveFingers.” Even though I’m 100% convinced that Invisible Shoes give a better approximation of barefoot than anything else out there, including VFFs, I don’t have the science to prove my case and so I can’t state it as a fact.

I’ll also admit that it’s tricky to talk about any product without getting close to the line between something obvious-but-vague, like “can align your spine” (clearly, going to a zero-drop shoe changes your posture), and something scientifically testable like “strengthens your feet.” It gets especially hard when you have hundreds of testimonials from people talking about strengthening their feet, improving their posture, running pain-free, developing arches, and dozens of other reports that are anecdotal and not scientific.

Interestingly, while the plaintiffs argue that there are no studies to support Vibram’s claims, they present no science to dispute them either. The suit spends many pages saying, basically, “Vibrams cause injuries,” yet they offer none of the double-blind, placebo-controlled studies they expect of Vibram to prove so. Instead, they rely on the same anecdotal “evidence” that they criticize Vibram for using. They quote a story in which a podiatrist says that 85% of her patients get injured trying to transition to minimalist shoes.

I’ve taken the logic of those types of claims to task before, but here’s the Readers Digest version:

a) I’ll pay $100 if the podiatrist has actually kept statistics to back up the 85% claim​
b) If she’s discussing existing patients, we’re talking about people who, by definition, already had foot problems before they decided to try something minimalist​
c) She will never see patients, or non-patients, who make the transition without any need for medical care, so even if the 85% number were true, it has no relationship to the percentage of people, in total, who have problems​
d) It does not separate out people who went barefoot, in VFFs, in Nike Frees or any other of the myriad footwear options​
e) It does not account for whether the patients simply over trained​
f) I’ll pay another $100 if she checked to see if form was the problem, not footwear​
g) How soon we forget that doctors made these same claims, and errors, 40 years ago when padded running shoes became the rage​
h) And, most importantly, since surveys have shown that 80% of marathoners get injured every year… the statistic is totally meaningless!​
The claim also takes Vibram to task for charging a premium price based on the idea that customers are enticed to pay more to get the promised benefits. And while VFFs are undeniably pricey, they’re no more extravagantly priced than many high-performance shoes, or any motion-stabilizing shoes (seriously, $275 for the New Balance 2040?!).

While the lawsuit criticizes Vibram for saying, without any science to back it up, that Fivefingers are essentially the same as barefoot, some of the arguments of this case require accepting the position that VFFs are the same as barefoot. The claim quotes the American Podiatric Medical Association which says there isn’t enough research to know what the long- and short-term effects of barefoot running are. Okay, but since your argument is that VFFs aren’t barefoot, then some comment about whether barefoot running is good or bad is moot.

When I first read the claim, one thing stuck out in my mind above all others. The plaintiffs claim that Vibram created FiveFingers in 2006 to capitalize on the barefoot running trend. History wasn’t my best subject in high school, but I know that:

a) Vibram didn’t design the FiveFingers as a running shoe​
b) The barefoot running boom started in 2009​
Not a big point, I’ll admit, but if they missed something as simple as that, it gives me pause.
Another thought that keeps popping up:

Why Vibram? Some of the comments on Facebook and Twitter suggest that this case is completely without merit. Given everything above, I disagree. But, if you’ve been around the minimalist world for any amount of time, you’ll know there are a LOT of other companies who’ve made some or all of the same claims that are described in the suit.

The question “Why Vibram?” also prompts us to look at the bigger picture. And by “bigger,” I mean, “the rest of the running shoe world,” not just the minimalist “barefoot” shoe world.

Leaving out the “toning shoe” lawsuits, we know that running shoe companies have been making many of these same claims for decades without a hitch. As Phil Maffetone pointed out on Zero-Drop.com, running shoe companies aren’t required to demonstrate the same level of safety as ice-packs. In fact, unlike Vibram where there aren’t studies proving or disproving whether they “reduce injuries”, studies have existed for 60 years showing how padded running shoes can be injurious.

While Vibram may have made claims without proof, it seems that “traditional running shoe” companies (I put it in quotes to highlight how funny it is that many people call them “traditional” when they’ve only been around for 40 years) may have been engaged in behavior similar to the tobacco companies: selling a product that they know causes problems.

Why do they get a free ride?

I wonder if this is a situation like when a bunch of cars are all speeding and only one gets pulled over… or is it a foreshadowing of future events where the whole industry – minimalist and non-minimalist — is subject to actual scrutiny and as a result, is held to a higher advertising standard than they have been so far.

Some say this looks like a case that’s more about 5 law firms making money than it is about whether Vibram has scientific proof of their claims. I don’t know. Frankly, if it were, I’m surprised the suit is only asking for $5,000,000. Even if money is the motivator that doesn’t mean there’s no “there” there in some of the plaintiffs arguments.

I know that there are many companies much larger than mine who are waiting to see how this plays out with the anticipation a runner feels in between “On your marks!” and “GO!” Or maybe with the sphincter tightening that comes with opening your front door and hearing, “We’re from 60 Minutes and we’d like to talk to you.”

What do you think?

http://www.invisibleshoe.com/blog/
 
It is indeed strange how the mainstream shoe companies have not had to produce the scientific evidence that their products do what they say they do. I think it would be very hard to test anyway as if you give a pair of "anti pronation" shoes to a dozen people who pronate I am sure that it would not change their running form to any degree.
It sounds like a lawsuit to try and discredit the barefoot running movement by companies that have made lots of money by selling padded running shoes don't protect the wearer like they claim. Imagine what would happen if more and more evidence began to stack up that the shoe companies have been selling defective products for the last 40 years and people were being harmed. Sounds like a tobacco situation here.
I do have some VFF's but I wear them infrequently and what I can say is that they did strengthen my feet.
How do I know that, well I couldn't grip or pick up a golf ball with my feet/toes before wearing the VFF's & running barefoot, now I can pick them up with no problem.
After dumping my useless orthotics and getting into the VFFs it was similar to someone going into the gym with no muscle and lifting the heaviest weight they could move. My feet ached like crazy, muscles that had not been used for so long because the orthotics had stopped them from ever being used.
It would be interesting to follow the money in this lawsuit, where is the funding coming from.

Neil
 
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I recently attended a talk by the general manager of our local running store who said (and this is an approximation as I don't remember his exact numbers) something along the lines of "in their first year selling fivefingers Vibram made 1.5 million bucks. In their second year they made 10.5 million, and last year they made 30 million". (remember, my numbers might be wrong but this was the kind of profit escalation he cited)

I see a law firm who saw a shoe company (whose shoes "injured" a woman from Florida -strange the thing is going to trial in new england- willing to sue over it) posting 300% profit increase year over year and decided to get their share.
 
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Why Vibram? Because it's the most noticeable minimalist shoe out there. Even people who don't run and know jack about running shoes have seen a pair and commented on how weird they look.

As for merit? I dare say there are instances where Vibram stepped over the line in touting health benefits. More than how much money the company will have to pay out in a settlement, the interesting thing will be how it will be forced to change its marketing strategy.
 
If Vibram should be forced to change their marketing strategy, then I say the boat anchor shoe companies should be forced to do the same. There should be warnings on shoes that say, "Wear at your own risk."
 
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If Vibram should be forced to change their marketing strategy, then I say the boat anchor shoe companies should be forced to do the same. There should be warnings on shoes that say, "Wear at your own risk."

Then sue the boat anchor shoe companies if you want to force them to change things.
 
I'm not really the lawsuit kind of person, though I have been thinking about it lately, due to the condition they have put my feet in. To a degree, I may be crippled for the rest of my life. Just thinking about it though. If I had the right backing, I'd definitely consider doing it.
 
rbondi, I read that article and then started reading the comments. The comments were irritating and I couldn't read but a few of them. They were shoddies who were acting like barefoot and minimalist runners are stupid.
 
Really, in my opinion, it's ONLY about money. it really is true that there is research to "prove" so much out there or that people claim there isn't enough. everyone is different and if people were really interested in getting to know their body by really "listening" to themselves, the answer would be clear. less is more in my opinion, always has been no matter how much stuff people add to make their lives easier. pills, orthotics, driving the car to the grocery store around the corner or sleeping on an orthopaedic bed. These are luxuries which are nice to have (in some cases people really need them) but most of the population would be better off, walking, eating healthy and balanced meals, sleeping on the floor and walking around with practically nothing on their feet. :D people might even be happier - didn't Aristotle say, "when our feet hurt, we hurt all over?" make those little guys happy - set them free! ;)
 
When my feet, I hurt all over. Yep! That's me!

Welcome, Kathy!
 
I would think it would not be too difficult to set up an experiment to measure whether or not the shoes do what they claim. In fact I would have thought Vibram would have already sponsored studies of this. The case is not that the shoes injured her but rather that they did not strengthen her feet or lower legs. It is a silly case and would be similar to suing a gym because you didn't end up looking like a top bodybuilder after 6 months. The woman is either after a money grab or is being sponsored by some slimy lawyers looking to make some money.

Neil
 
I have mixed feelings about this case.

First, consumers need protection against false claims. But, it is hard to draw a clear line. The shoe industry has been "defrauding" runners for decades with unsubstantiated claims. But, no judge is going to hear a case against Nike, unless you can show injury. (And, this is a fraud lawsuit, not an injury one.)

Second, I dislike the use of the word barefoot to describe any shoe (see my signature). As small part of me giggles with glee that a company gets called on their misuse of language. (Full disclosure: I run purely barefoot, but I do wholly support minimalist shoe running--just please don't call it barefoot.)

Third, the lawsuit seems difficult to win. Therefore, it is more likely to damage the barefoot/minimalist image. It gives boat anchor runners lot's of told-you-so ammunition, as shown by the comments to the RW article cited by rbondi (this one).

As to the question about injury lawsuits, including TJ's concrete issue, a suit against the major shoe companies like against Big Tobacco would be difficult to win. With BT, we knew about smoking's dangers over 4 decades before the lawsuits. But, the smoking gun was BT's knowledge of the dangers and their willful actions to enhance smoking addiction. With the shoe companies, they have falsely advertised, but it is unlikely that they willfully and knowingly continued to sell products shown scientifically to be harmful. Of course, they have no science on their claimed benefits, either, hence false advertising.

Moreover, "Anti-Pronation" shoes, just to take one example, do help correct pronation. It's just that pronation is not an issue unless you heel strike. Did they willfully promote heel striking? Yes, the historical record shows Nike's founder trying to increase stride length by enabling heel striking. But, they had no idea it was harmful, and actually built in padding to mitigate the danger. Even if we believe all that to be a bunch of bull pucky, it just isn't going to fly in a court of law.

One question remains in my mind: is the plaintiff in the Vibram case getting funding from a big shoe company? After all, the barefoot movement is dangerous to the majors because it negates every sales argument they have ever made. Lawsuits are a normal part of the competitive arsenal for big companies. If your pockets are deep enough, you can bring a smaller competitor to his/her knees just through the costs of the lawsuit.

So those are my two cents.

Cheers
Paleo
 
Those are two good cents, Jamie. I always appreciate your reasoning.

Just some thoughts...

Isn't it possible that Nike added the padding because they knew it would damage their customers' feet without it? After forcing them to heel strike? Sure, I can see where they "thought" that padding decreased the impact forces, although studies are finding quite the opposite, but there wouldn't be that impact force without the elevated heel in the first place.

But regardless, just because someone knows or doesn't know about something being potentially harmful to someone else, doesn't free them from the responsibility. We can't say, "Well, I didn't know I was doing any harm, so you can't sue me." We are responsible for the damage we do to others whether it was intentional or not, right?
 
Maybe this is the problem

Country Lawyers Population People/Lawyer
US: Lawyers: 1,143,358 Pop: 303MM P/L:265
Brazil: Lawyers: 571,360 Pop: 186MM P/L: 326
New Zealand: Lawyers: 10,523 Pop: 4MM P/L 391
Spain Lawyers:114,143 Pop: 45MM P/L:395
Italy Lawyers:121,380 Pop: 59MM P/L:488
UK Lawyers:151,043 Pop: 61MM P/L401
Germany Lawyers:138,679 Pop: 82MM P/L: 593
France Lawyers:45,686 Pop: 64MM P/L: 1,403

There needs to be a cull.

Neil
 
"The claim quotes the American Podiatric Medical Association which says there isn’t enough research to know what the long- and short-term effects of barefoot running are."

The defendants could cite the survival of the species as proof #1 that BF running is a good thing with supplemental support from Dr. Leiberman, et al..
 
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"The claim quotes the American Podiatric Medical Association which says there isn’t enough research to know what the long- and short-term effects of barefoot running are."

The defendants could cite the survival of the species as proof #1 that BF running is a good thing with supplemental support from Dr. Leiberman, et al..

Said it all right there, he did!
 
Maybe the APMA should get off their lazy asses and get over to a few 3rd world countries and do some studying then. As I have said many times before I bet there is not a podiatrist on ever street corner, not because they can't afford them but because they don't need them. The onus of proof that it is fit for purpose should be on the manufacturers of a product. If a shoe mangles your foot or gives you knee pain or back pain then is it defective.

Neil
 
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I don't think the case is without merit. People shouldn't claim things that aren't true. That being said, its a bit unfair to go after vibram and not the shoe companies who do the same thing (both minimal and "traditional"). I do think this could have a pretty big ripple effect though. Minimal shoe makers are getting enough large players (merrell, new balance ect...) that before long maybe they can actually get some real, large, quality, studies funded for it. More than just a couple of "fringe" studies. Hopefully the suit gains a lot of attention and then falls through with some sort of slap on the wrist saying, stop claiming things you don't know, and oh yeah, all you other companies stop too or you're next. I think that would be the ideal result.