Vibrams Sued

Last month Vibrams was sued over its Five Finger Toe Shoes. The basic complaint is that Vibrams has been making false claims about the benefits of running in their minimalist shoes.

I have obtained a copy of the official complaint.

First, here’s a news story from when the complaint was filed: Vibram ‘Barefoot’ Sneaker Maker Sued Over Claims.

The story says that the suit is a class-action suit, and it says not only did Vibrams make deceptive claims, but also that injuries have resulted from the shoes.

The latter is somewhat odd, since the Vibrams have a hang tag that says

If you are running in FiveFingers for the first time, we encourage a very gradual transition to ensure a safe and pleasurable experience. Please visit our website for resources related to natural running and training.

Let’s take a look at what the complaint says. (By the way, for you non-legal types, the “complaint” is the initiating legal document that sets out the allegations of the lawsuit. Presumably, if those allegations are true, and the law agrees, then the sues is entitled to win their case.) The suit was filed by somebody names Ali Safavi in Los Angeles. (By the way, the news story got his name wrong, switching the “f” and the “v” — made it a bit hard to find the complaint.)

Also, the complaint asks for “class action” status. That means that Safavi is not suing just for himself, but for anybody who might have been injured (either physically or monetarily) by Vibrams’ actions.

For those who want to read the whole complaint, I’ve included it at the end of this entry.

Here’s paragraph 3 of the complaint:

FiveFingers are among the so-called “minimalist” shoes intended to mimic “barefoot running,” which is a form of running that has recently increased in popularity. Defendants have claimed that wearing FiveFingers, inter alia, improves posture and foot health, reduces risk of injury, strengthens muscles in feet and lower legs, and promotes spine alignment. Defendants have used these claims to charge prices for FiveFingers that consumers readily paid, believing FiveFingers would confer upon them significant advertised health benefits. Unbeknownst to consumers, Defendants’ health benefit claims are false and deceptive because FiveFingers are not proven to provide any of the health benefits beyond what conventional running shoes provide. In fact, there are no well-designed scientific studies that support Defendants’ health benefits claims regarding FiveFingers. Indeed, running in FiveFingers may increase injury risk as compared to running in conventional running shoes, and even when compared to barefoot running.

What is interesting here is that many of the studies we are aware of have long said that all of the running shoes haven’t reduced injuries. They have all this motion-control features, yet runners still get multitudes of overuse injuries. We know that shoes increase stresses on joints; we know that they can lead to more turned ankles. The lawsuit, however, says that minimal shoes also don’t meet their claims. This turns things on its heads.

But the thing is, it is true that the research is still in a state of flux. While research has shown that there are areas in which the shoes haven’t helped (and have probably made things worse), there also are not any head-to-head studies that carefully evaluate injury rates between normal shod running, barefoot running, and toe-shoe running.

If you think about it, those are really hard, expensive experiments to run. All you can do are smaller studies that might hint at what is really going on.

The next paragraph then quotes from the American Podiatric Medical Association’s position on barefoot running.

The American Podiatric Medical Association’s position on barefoot running, which FiveFingers are intended to mimic, demonstrates how Defendants’ uniform statements are false and deceptive. That position is as follows:

While anecdotal evidence and testimonials proliferate on the Internet and in the media about the possible health benefits of barefoot running, research has not yet adequately shed light on the immediate and long term effects of this practice.

Barefoot running has been touted as improving strength and balance, while promoting a more natural running style. However, risks of barefoot running include a lack of protection–which may lead to injuries such as puncture wounds–and increased stress on the lower extremities.

The thing is, podiatrists are extremely conservative when it comes to barefoot running. We’ve seen in this blog how they are always quoted about how awful barefoot running is, and just make stuff up about how the foot requires support. So, those sorts of statements from podiatrists will support this lawsuit against Vibrams.

The complaint also makes a big deal of the fact that Vibrams touts barefoot running, but running in Vibrams is not the same as running barefoot. Vibrams’ big claim is that their sole protects against puncture injuries, but then they also use the barefooting claim of increased sole sensitivity and increased proprioception, both of which are greatly diminished by the artificial sole.

One thing that I think this lawsuit will do very well is nail down just what the true state of the research is. When discovery is done, you can be sure that Vibrams will defend itself with all of the studies it is aware of (and there may be internal studies that we haven’t heard about yet).

But here’s the problem: shoes are going to be considered the default. Shoes are going to be considered the safest. The Vibrams (and barefoot running) are going to have to prove themselves in a way that regular running shoes won’t.

And we’ve seen what judges do in that situation in my own lawsuits. They simply have a hard time getting beyond the idea that shoes are necessary and natural. So, who knows what will happen here.

But what I do know is that this lawsuit is one that is well worth watching, and well worth keeping an eye on all the documents that are filed in the case. They will contain a wealth of information as they fight over the benefits of barefoot running (and we know that they will use barefoot running as a proxy for toe-shoe running).

The paragraphs of the complaint that I quoted above are basically summary paragraphs. Starting at paragraph 16 are their “substantive” claims, and their claims about the existing studies start around paragraph 43. (Of course, they highlight the ones that they think support their position.)

There is so much here, I thought I’d just include those paragraphs without comment. Readers are free to look at what they wish. And again, go to the very end to see the whole complaint.

43. As one article in the May/June 2011 Journal of the American I Podiatric Medical Association (“APMA Article”) states, “professional organizations and many clinicians with a keen interest in foot health and podiatric sports medicine are becoming more aware of the purported claims and risks but are going to be reluctant to support or oppose barefoot running until more definitive research and evidence are available.” {Note 20: David W. Jenkins, DPM & David J. Cauthon, RPh, Barefoot Running Claims and Controversies, Journal of the American Podiatric Medical Association, May/June 2011, 231, 243.}

44. Another example demonstrating the lack of scientific research on minimalist shoes is illustrated through the U.S. Army. The U.S. Army plans to study the effectiveness of the shoes. The reason is that the effectiveness of minimalist shoes is scientifically unproven. {Note 21: Joe Gould, Army Seeks More Input on Minimalist Shoes, Army Times, Feb. 13, 2012, 23.} As Lt. Col. Timothy Pendergrass stated, “[w]hat we do know is we don’t know a whole lot, and we need more research.” {Note 22: Id.} Lt. Col. Pendergrass also stated that “[t]here’s a lot that’s stated out there without any research out there to back it up, so we’re trying to look at the kinds of research we can do to answer those questions.” {Note 23: Id.}

45. Another recent article, published by the American Academy of Physical Medicine and Rehabilitation—stating that “it should be obvious that foot intrinsic muscle strengthening cannot be a potential benefit from barefoot running”—indicates that Defendants’ muscle-strengthening claim is false. {Note 24: See Brian J. Krabak, M.D., M.B.A., et al., Barefoot Running, PM&R, Vol. 3, Dec. 2011, at 1148-49.} That article also states that “other aspects of muscle function might be improved by barefoot running, but this remains to be examined.” That article therefore demonstrates that Defendants’ muscle-strengthening claims are unsubstantiated.

46. As for Defendants’ deceptive statements about the reduced injury risk, the APMA Article notes that although there are studies demonstrating reduced injury factors in laboratory situations, “[n]o evidence was found that demonstrates a reduced prevalence of running injuries in barefoot runners.” {Note 25: Jenkins, et. al., supra note 20, Barefoot Running Claims and Controversies, at 235} (emphasis added). Another recent article published in Foot & Ankle International in April 2012 states:

Despite booming sales in minimalist footwear, there is no evidence that their use has decreased the incidence of injuries in runners. Since the introduction of these shoes, we have treated a series of experienced runners that have made the transition from traditional footwear to minimalist footwear and sustained an injury either during or shortly after their transition. All of the runners were uninjured in the year prior to their transition and all developed an injury within a year of the transition. {Note 26: Matthew J. Salzler, MD, et al., Injuries Observed in Minimalist Runners, Foot & Ankle International, Vol. J3, No. 4, April 2012, at 263.}

47. Furthermore, the APMA Article notes that “[m]ost of the claims regarding the reduction of running-related injuries in barefoot runners are made on the basis of logical assumptions. . . . However, no studies or even surveys have sustained these claims. Although there are numerous studies that demonstrate reduced lateral ankle instability in the barefoot condition, they do not look at barefoot runners.” {Note 27: Id. at 240 (citations omitted).} Indeed, “[e]vidence that barefoot running directly prevents or improves running-related injuries is nonexistent.” {Note 28: Id. at 242.} Also, Amby Burfoot, editor-at-large for Runner’s World, magazine wrote of another study, “[n]o one has ever proven that any running shoes prevent running injuries, and no one has ever proven that barefoot running prevents running injuries.” {Note 29: Emily Main, Give Up Running Shoes? Not So Fast, Rodale (Jan. 12 2010), available at http://www.rodale.com/knee-pain-while-running?page=0%2C1 (last visited Mar. 9, 2012).}

48. Even research that is sponsored “in part, by Vibram USA®,” demonstrates how Defendants’ statements about reduced injury risk are deceptive. See supra ¶ 37. And those performing the research, such as Daniel E. Lieberman, sponsored “in part, by Vibram USA®,” and others, acknowledge that “[a]lthough there are anecdotal reports of reduced injuries in barefoot populations, controlled prospective studies are needed to test the hypothesis that individuals who do not predominantly [rear-foot strike] either barefoot or in minimal footwear, as the foot apparently evolved to do, have reduced injury rates.” {Note 30: Daniel E. Lieberman,Ph.D., et. al., Foot Strife Patterns and Collision Forces in Habitually Barefoot Versus Shod Runners, Nature, Jan. 28, 2010, at 534 (citation omitted).} Lieberman also acknowledges that “[i]t is remarkable how little we know about something so basic and fundamental as barefoot running, and it should be evident that we need to roll up our shirt sleeves and take off our shoes to answer a wide range of questions about how the bare foot functions during running and the relevance of barefoot running to injury.” {Note 31: Daniel E. Lieberman, Ph.D., What We Can Learn About Running from Barefoot Running: An Evolutionary Medical Perspective, Exercise and Sport Sciences Reviews, April 2012, at 70-71, available at http://journals.lww.com/acsm-essr/Fulltext/2012/04000/What_We_Can_Learn_About_Running_from_Barefoot.3.aspx.}

49. An article by Benno M. Nigg of the Department of Kinesiology at the University of Calgary also indicates that there is no “publication that provides hard evidence that people running barefoot have fewer running related injuries than people running with running shoes.” Benno Nigg, Biomechanical Considerations on Barefoot Movement and Barefoot Shoe Concepts, Footwear Science, June 2009, at 76 (“Nigg Article”). The Nigg Article states:

The current claim that people running barefoot have less running related injuries than people running in shoes is a speculation with no epidemiological support. We suggest that nobody knows at this point in time whether or not people running barefoot have more or less injuries than people running with conventional running shoes. {Note 32: Nigg Article at 76 (emphasis added).}

50. Another recently published article from the May/June 2012 Current Sports Medicine Reports states:

To date, no clinical studies have been published to substantiate the claims of injury reduction using a “minimalist” style. Opponents of “barefoot” running maintain that the “minimalist” style may alter the type, not incidence, of running injuries. By increasing impact forces on the forefoot and mid foot, “minimalist” runners may be subjected to increase rates of forefoot and midfoot injuries and plantar skin breakdown compared with shod runners. {Note 33: Jeffery A. Rixe, BA, et. al., The Barefoot Debate: Can Minimalist Shoes Reduce Running-Related Injuries?, Current Sports Medicine Reports, Vol. 11, No. 3, May/June 2012, at 162.}

51. As Craig Payne, a senior lecturer in the department of podiatry at La Trobe University in Melbourne, Australia writes: “The barefoot running community have an appalling track record at how they misinterpret, misuse and misquote research . . . . The simple facts are that not one risk factor study on running injuries has linked high impacts to running injuries, yet the barefoot running community claim that the evidence shows this and consider high impacts as the cause of all injuries.” {Note 34: Roger Collier, The Rise of Barefoot Running, Canadian Medical Association Journal, Jan. 11, 2011, at E38, available at http://www.cmaj.ca/content/l83/1/E37.}

52. Defendants’ health benefit claim that running in FiveFingers leads to fewer injuries is belied by the fact that until runners are able to change the way they run in FiveFingers (if they are able to change at all), they are more prone to injuries while running in FiveFingers than with conventional shoes. Nevertheless, even if FiveFingers consumers are able to change the way they run in order to minimize the potential that wearing FiveFingers will injure them, wearing FiveFingers still do not provide the advertised health benefits.

53. As the APMA Article illustrates, Defendants’ representation that running in FiveFingers increases strength in feet and lower legs also does not have sufficient support. The APMA Article states that “[e]vidence is conflicting on the actual strengthening potential of the barefoot condition, and even if the barefoot condition led to increased muscular strength, the claim that this results in reduced injuries or improved performance has not been proved scientifically.” APMA Article at 240.

54. Moreover, the authors of the APMA Article noted they were unaware of any study that evaluated ‘barefoot runners’ proprioceptive ability.” In fact, as the APMA Article states, “[t]here is even the consideration that in an unshod condition, proprioceptive elements (plantar mechanoreceptors) may be dampened through chronic impact loading . . . [and that] [a]lthough numerous studies support the claimed advantages of the barefoot condition, such as reduced ground reaction force at impact and improved sensory feedback and proprioception, there is no evidence that these changes result in reduced injuries or improved performance in barefoot runners. It seems that these claims are extrapolated or speculative.” Id. at 240, 242. Thus, Defendants’ uniform deceptive and misleading statement that wearing FiveFingers improves proprioception has no reliable scientific support, and is false and deceptive.

55. Finally, Defendants’ comparison of running in FiveFingers to barefoot running is itself misleading. Indeed, the ACE Study found that “compared with barefoot runners, shod runners and those in Vibrams showed more pronation, which is the natural side-to-side movement of the foot during running. Excessive pronation is associated with more injuries.” {Note 35: Tara Parker-Pope, Are Barefoot Shoes Really Better?, N.Y. Times, Sept. 30, 2011, available at http://well.blogs.nytimes.com/2011/69/30/are-barefoot-shoesreally-better/ (last visited Mar. 9, 2012).} The Nigg Article further demonstrates why comparing barefoot running and running in FiveFingers is deceptive. The Nigg Article states as follows:

The name “barefoot shoes” is a contradiction in terms. A shoe condition is not a barefoot condition. The discussed “barefoot shoes” typically take one aspect of barefoot and implement it into a shoe. Some of these aspects are close to barefoot, some need a little stretch. To assume that these shoes correspond to barefoot running or moving is not appropriate and the name “barefoot shoes” may well be more a marketing strategy than a functional name. {Note 36: Nigg Article at 78.}

As far as I can tell, this fairly accurately states the current state of the research. I am also the sort of person that will go where the research leads, and I don’t want to overstate what I think are the benefits of barefooting or barefoot running. I’m only interested in the truth.

The thing is, based on these, Vibrams may have a hard time defending their statements. It all depends on how much what they have said can legally be interpreted as the usual advertising fluff, or whether it fits into enough of what was known at the time.

My suspicion is that this will end in a settlement, and Vibrams will make a small payment to Vibrams users.

Finally, here’s the full complaint.

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