high-tech look can't fool reasonable consumers about orthotics

Kommer v. Bayer Consumer Health, --- F.Supp.3d ----, 2017 WL 2231162, 16 Civ. 1560 (S.D.N.Y. May 18, 2017)

Bayer sells Dr. Scholl’s foot care products, including the Dr. Scholl’s Custom Fit Orthotics Inserts. In many stores, they are sold alongside defendants’ point-of-sale kiosk, the Dr. Scholl’s Custom Fit Orthotics Foot Mapping Kiosk, which features a platform for customers to stand on and a computer monitor at top. 

The instructions direct customers to remove their shoes and step onto the Kiosk platform; the system recommends the best Insert model for the user’s feet. There are fourteen different models of pre-fabricated, pre-packaged Inserts, and the Kiosk will always recommend one of the models. The Dr. Scholl’s website touts the custom fit kiosk to “recommend the Custom Fit Orthotic Inserts that are right for you.”  The complaint alleged that the arch measurements from the kiosk were imprecise, depending on an individual’s weight and stance, and that reliance on arch measurements isn’t sufficient to prescribe a custom fit orthotic.  Kommer experienced foot pain; he paid $333 for custom orthotics, then tried the kiosk and ended up buying the recommended inserts for $50, allegedly higher than similar inserts that sell for $10.  He alleged that, had he known the truth that the inserts were “standardized, mass produced over-the-counter shoe inserts” he would not have bought them, and that his foot pain increased after using them while his prescribed orthotics relieved the pain. 

The basic claims, brought under N.Y. GBL §§ 349 and 350, were that defendants (1) misled consumers into believing that the Inserts were “functionally equivalent” to orthotics fitted and prescribed by a medical professional, and (2) misled customers into believing that the Inserts are individualized to a consumer’s “unique physical characteristics,” and not simply “generic, pre-fabricated, mass-produced, over-the-counter shoe inserts.” The allegedly misleading acts included the use of “Custom Fit Orthotic” in the product name, the Kiosk’s use of “pseudo-technology,” and the use of designations “such as ‘CF440’ ” on the Insert models—designations which Kommer alleged weren’t found on other Dr. Scholl’s products, and which “suggest a level of precision and exactitude that is not present in the product.”

The court first found that Kommer lacked Article III standing to seek injunctive relief, regardless of the public policy reasons for allowing such standing.  Kommer essentially conceded that he wouldn’t buy the inserts, or be misled by the marketing, again in the future.

The court also found that Kommer hadn’t plausibly alleged material misleadingness, which is evaluated from the objective standpoint of a reasonable consumer. “At the point that the consumer is directed to select a pre-packaged Insert stacked along shelves on the side of the Kiosk … it is no longer reasonable for him to think that he is getting a product ‘individually designed’ for his feet.”

In the alternative, Kommer argued that the marketing would lead consumers to believe that the Inserts are the functional equivalent of prescribed, individually-made orthotics.  But the kiosk instructions also contained a disclaimer: “The Dr. Scholl’s Custom Fit Orthotic Center uses state of the art technology to measure your feet, but does not diagnose medical conditions. It is not intended to take the place of your podiatrist. See your podiatrist as needed for diagnosis and treatment of medical conditions.”  Disclaimers aren’t always sufficient, but this one was. It was printed in “reasonably-sized font right at the top of the Instructions” and was sufficiently clear even before a consumer made a purchase or even stepped on the kiosk. Nor was it inconsistent with defendants’ other representations, and it was unclear how designations such as “CF440” would lead a reasonable consumer to believe that he was getting over-the-counter inserts comparable to prescribed ones, “particularly when Plaintiff does not allege that such designations are unique to, or even typical of, the latter.”  Kommer didn’t explain how “high technology-looking” marketing was inherently deceptive.  “To the extent that a consumer may overestimate the function of the Kiosk … the disclaimer provides adequate clarification of its capabilities.”