Vibram FiveFingers Class Action Lawsuit -- Does It Have Merit? - Xero Shoes

Vibram FiveFingers Class Action Lawsuit — Does It Have Merit?

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 overtrained

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://YouVersion.com Clyde Cambridge

    What company has sold the most minimalist shoes over the past 3 years? Ummm. Vibram? They even got a spot in a financial magazine a few months back (I can go find the issue if you want) about product trends. While the article looked at other companies too (including Newton which is natural form footwear, but not minimalist), Vibram got the most space in the article.

    And of course we all hate that built up heel that causes a little too many runners to still hit their heels down first causing more injury than a pair of normal Asics running shoes designed for heelstriking. Honestly, that was my main problem on their best shoe compared to what you have.

    Of course, we find even some barefoot folks still running heel first. Thwam, thwam, thwam. But the difference is being able to feel it better versus feeling it less.

    But hey, if we can get more specifics terms out of this lawsuit, then all of us should benefit from increased cohesion of marketing terms.

    Maybe a formula for figuring out what is closest to barefoot for marketing purposes too would be something like the amount of flexibility at every part of the shoe under the foot (plastic wrap counts as totally barefoot for this). Amount of shock absorption in the shoe, with plastic wrap being barefoot and any metals or stiff plastics being disqualified, including gels that stiffen under impact. Thickness of material may or may not be a good idea to use in it. Certainly anything over 10 mm at it’s thickest should be disqualified as being barefoot feeling. And something to simulate road feel. Amount of pressure for a pinhead to get through the toughest and thickest parts independently, the results being combined into something sorta like the flashlight world has candela and lumens is probably a reasonable idea. Each part has its own name and percentage qualifiers with barefoot being either the highest or lowest on the scale, depending on how it’s run, and then it gets progressively worse with bigger thicker cushiony footwear. It’s sorta like the barefoot feel percentage index or something like that. What do you think?

    Clyde

  • http://fineartamerica.com/profiles/barry-combess.html Barry Combess

    My friends and I will be watching this case closely. At first glance I’m thinking bottomfeeders.

  • Joe

    Please never use the words “colon” and “flavor” in the same sentence again.

    • Steven

      Joe, I hope you know that I did that on purpose. ;-)

  • http://mjspantry.wordpress.com Jamie

    I have to concur with Clyde on his points. I think that these types of law suits are silly. I am a firm believer in doing my own research on health claims and that the consumer has to look out for themselves. Nutritional supplements have to print a statement that their claims are have not been proven by the FDA. Didn’t the cereal companies (or was it oatmeal) have to change the claim that the product helped lower cholesterol vs “may help” lower cholesterol? So then it would be logical that no minimalist shoe can claim health benifits but only state that they may help in the support of the health of your feet, back, ect. VFF does claim that their product is like “barefoot” running on their website. It isn’t. They also claim “every step taken in FiveFingers® is a lesson in texture, temperature, and biomechanics.” Really? Some one can determine all this in a VFF? Wearing a VFF is like wearing a work glove for your feet. I have tried them out and texture and temperature is not a sensation you can feel (I have been running in Invisible Shoes for 3 years and have been working on barefoot running for a year). So in conculsion, I agree with Clyde.

  • http://barefootvermont.blogspot.co.nz/ Mark

    I agree with Jamie about consumers looking out for themselves. I did a lot of research before I went and bought my Invisible Shoes, granted they were also the cheapest option. But I continue to read everything barefoot related I can. I don’t take supplements because I know the negative effects likewise. I also agree that this lawsuit is probably just a means to make money, which is unfortunate. On the bright side I agree with Steven and hope it draws more attention to the barefoot community and booms barefoot living even more. Kudos to you Steven for noting the fact that there are no studies saying “traditional running shoes” are good for you. There are even studies saying they may injure you. However this plays out we all know from millions of personal stories that minimalist/barefoot running is best and leads to a pain free running life.

    On a lighter note, Steven as always I love your style. Especially the “cures cancer and baldness” note and “bend steel with your mind”, laughing out loud the whole way.

    Where this leads only time will tell.

  • JC

    “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”

    I would go further. I would say that the case could clear up the language used in ALL footware products. Whatever restrictions are applied to “unfounded” claims of minimalist products could/should also apply to the unfounded claims of all of those marshmallow/spring/convex soled, etc. foot coffins as well. More cushioning is better for your joints? Let’s see the evidence? If no can do, then you can’t claim it on advertising. What’s good for the startup companies saving our joints is good for the multi-national corporations getting rich off off-shore child labor and giving orthopedists more work than they can handle.

  • Joshua

    I was constantly injured while running in the NB993–a huge stability shoe. Anyone want to file a class-action lawsuit against these shoe companies for lying to us about the benefits of motion/stability shoes and charging a premium for those shoes, too… based on no scientific evidence? Anyone? Or how about how we (I…) have been fooled into running with a heel-strike when we see all these ads with athletes (models) with huge heel-strikes? I actually thought that was what I was supposed to do. Anyway, I’m game for trying to sue these companies the way Vibram is being sued. I actually incured injuries from false advertising by the big shoe companies.

  • http://www.thenakedrunners.com Dave Robertson

    The best commentary I’ve read on this issue. Thanks SS (Uri).

    Get a feeling this will be an historic point that will set off a chain of actions & reactions.

    I agree with JC (always good to have His input), that through the resulting increase in clarity of minimalist/barefoot products, this case could have a lot of positives.

  • Pete

    Great post Steve. I feel much the same way, and Vibram is by no means unique amongst shoe manufacturers in making claims about injury reduction (which I find to be the most problematic of the claims and hardest to defend). As one example, just pulled the following off a blog from one of the major shoe manufacturers:

    “These types of shoes are labeled as either support, stability or motion control shoes. Though the terms are different, the end result is the same: These shoes will reduce the degree of overpronation and thus, minimize the injuries associated with it.”

    Same thing could be applied to the wet test, which lacks an scientific support. The whole industry needs to rethink the claims that they make.

  • Chris

    I hope they don’t settle and either side is forced to prove or disprove their claims.

    But surely no matter what shoe you are in from Vibrams to racers to mild stability to motion control etc there can be so many variables that it is practically impossible to prove it is purely the footwear causing the problem.

    You could have 100 people training for a 10K who overpronated and had problems in a neutral shoe and they all got various support shoes and that cured their pain. Success!

    Then again, out of those 100 some could massively overdo the training, a couple could have a leg length discrepancy, some could have weak muscles, some could undertrain then try racing the 10K, some could just not provide the right information to the shoe salesman, “these fit best but I like the colour of these”, some could be getting the problem from a repetitive work movement etc but feel it more noticeable/worse when they run!

  • http://YouVersion.com Clyde Cambridge

    Joshua,

    Notice though that New Balance seems to have realized the advantage of minimalism. They now have a few products that are still crazily built up by minimalist standards, but they are in my opinion still minimalist running shoes, and they partner with Good Form Running to stop folks from heel-striking. I believe for sales and perception purposes though, they still sell the thick things.

    As for athletes with heel-strikes, even they are susceptible to marketing and sponsorships. The Ironman World Championship Triathlon in Hawaii is a highly prestigious Ironman course where you swim 2.5 mi, bike 112 mi, and run 26.2 miles, all in under 10 hours if you are a pro. During one of the last few ones, someone filmed the running gait of the different top ten pros as they came through his line of sight. Craig Alexander is sponsored by Newton Running, and is the only one with a midfoot strike in that video.

    As he passes through the line of the camera you can see the smooth running form and solid footing he gets. As his competitors come along though, you’ll notice them all heel striking, some with their legs over extending, and their feet vibrating into the ground in an uncontrolled fashion. Now, Craig did win this race, but these were some of the other top guys, and you’ll notice the brands that they are wearing, and the poor running form that they use, which has opened them up to injury. Andy Potts is someone who comes to mind like that. He’s had running related issues, and while he finished in 17th place last year at Ironman Hawaii, which means that he is fast, he obviously has problems from his heel striking.

    An Asics running shoe promotion video showed what appeared to be Ryan Hall running in their shoes. One of the USA’s best half marathon runners, and I couldn’t quite tell, but it would not surprise me if he normally runs fine, but had to heel strike for promotion purposes.

    But then look at Dr. Mark Cucuzzella. One of the fastest barefoot/minimalist runners in the US. He started out as a heel striker, and won quite a few US Air Force Marathons. But then, from excessive toe off, one of his big toes had to be put together immovably, so he couldn’t run any more. Really? A few years later, he’s started winning again, and mind you, he’s running with a totally different form factor!

    All that to say that the pros both heel strike and run properly, depending on who you examine, so it’s not too hard to get an ad showing them heel striking.

    Pete,

    While there is no scientific linkage between arch hight, pronation, and or injury prevention, for flat footed folks it can be a moral booster to do the wet foot test because like in my case, I started flatfooted, and am now at a low arch, almost normal due to going minimally where I can’t go barefoot, which has strengthened and raised my arches. Yay!

    Clyde

  • Seth

    Well, go after the $$$. Vibram has the biggest name (and my assumption) biggest market-share. There are class action law suits constantly and the only winners are the lawyers.
    I get notifications all the time about this stuff…what do I get? Maybe 3 months free at 24-hour fitness, ~$7 from BMG music…I think Verizon proactively sent me a check for an over-charge, and that was probably to prevent giving the money to a lawyer and getting bad press.

    I wish there could be a counter-suit as this will simply cause ff (for those who wear them, and I’ve got a pair) to cost more. If Steven got sued…I’m sure IS would either go out of business or force a price increase.

    Lawyers and law suits server a purpose, but there are always those who will take advantage…

  • JS

    There are just a few other companies out there doing the minimalist thing. Google “Soft Star” and “Leming Footwear.” But hardly anyone has heard of these two, and there’s likely not a great deal of cash flowing about, so being under the radar is a blessing for them for now.

    There’s this pernicious “spiral of safety” cycle that tries to reduce everything so the dumbest person in the group won’t be harmed. There’s tons of things to research first, and so many warnings about taking it slow and easy. But there will always be those who can’t comprehend, can’t take advice, and misunderstand. However, this case is from big companies and not individuals, which hopefully shows that folks trying the minimalist thing that hurt themselves are not out for a quick buck.

    There’s always the kid who gets hurt on the trampoline, and there’s always the mom wanting to shut it down (and have her kid get fat). Or make money in a lawsuit.

  • JS

    Heavens I have to take my own criticism. Who are the plaintiffs?

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