NAD Refers Advertising for Implus ‘Airplus’ Insoles to FTC, FDA for Further Review after Company Declines to Comply with Recommendations

New York, NY – March 13, 2018 – The National Advertising Division has referred advertising claims made by Implus, LCC, for the company’s Airplus line of shoe insoles to the Federal Trade Commission (FTC) and the Food and Drug Administration (FDA) for further review after the company declined to participate in a review of its advertising claims.

NAD is an investigative unit of the advertising industry’s system of self-regulation. It is administered by the Council of Better Business Bureaus. NAD’s decision in this case serves as a reminder that anecdotal evidence is not sufficient to support certain types of advertising claims.

The claims at issue were challenged before NAD by Bayer Healthcare LLC, the maker of Dr. Scholl’s, a competing line of shoe insoles, and included express claims for Airplus Plantar Fascia Orthotic, Airplus Ultra Work Memory Plus and Airplus Memory Plus insoles.

NAD noted in its decision that Implus manufactures many different types of insoles, including those designed for the foot condition plantar fasciitis. NAD observed that the company’s advertising promises consumers that its insoles will improve foot comfort, relieve pain, relieve foot fatigue, provide greater stability to the foot and provide superior foot support on product packaging and in internet advertising.

In support of the challenged comfort claims, the advertiser relied on positive consumer reviews that praise the insoles are “comfortable” and “very comfortable” at a much lower price point than competing insoles.

However, NAD noted that unless Implus can establish that these customers’ experiences with the product are typical of the experience of most consumers, it cannot rely on this anecdotal evidence as claim support. Given that the challenged comfort claims are not puffery and in the absence of any reliable consumer use testing assessing foot comfort, NAD recommended that the challenged comfort claims be discontinued.

Similarly, NAD found that claims the insoles “combat fatigue” or are “anti-fatigue” promote a measurable attribute that should be supported by consumer-use testing rather than consumer reviews and recommended the advertiser discontinue the claims.

NAD determined that claims that Implus insoles “soothe pain resulting from Plantar Fasciitis,” “prevent” and “relieve” foot pain are health-related claims requiring competent and reliable scientific evidence as support which the advertiser failed to provide.

NAD recommended that Implus discontinue all challenged comfort, anti-fatigue, pain relief, “all day” support and superior support, and shock absorption and related claims. NAD further recommended the company discontinue claims related to the fit of the products.  NAD recommended that the claim “Odor control protection,” “[t]his product contains an antimicrobial agent to control odors,” and “Silvadur™ to inhibit the growth of odor-causing bacteria” be discontinued or modified to indicate that the product has an antimicrobial additive to inhibit odors.

Implus, in its advertiser’s statement, said the company would not comply with NAD’s recommendations. Further, the company said it believes that “controlled testing is not needed to support common sense claims such as cushioning, comfort and pain relief, which are supported by years of unsolicited, unbiased, unfiltered consumer reviews.”

Pursuant to ASRC Procedures, advertiser’s must indicate whether or not they will comply with NAD’s decision. Here, the advertiser informed NAD that it will not comply with NAD’s recommendations and, as a result, NAD has referred this case to the attention of the appropriate government agency for possible enforcement action.