overclaiming study results to apply to unstudied product can be false/misleading

In re Riddell Concussion Reduction Litig., No. 13–7585, 2015
WL 4640425 (D.N.J. Aug. 3, 2015)
 
The plaintiffs sued Riddell for marketing football helmets
based on allegedly false or misleading claims that the helmets were equipped
with unique concussion reduction technology, and that the helmets could reduce
concussions by as much as 31%. Plaintiffs alleged that they paid a $50 price
premium for Riddell’s helmets even though those helmets offer no greater
protection against concussions than other helmets.
 
The court previously granted a motion to dismiss; here it
sustained in part the amended complaint, based on statements that Riddell made
about helments that weren’t included in the study on which it based its
claims.  Starting in 2002, the University
of Pittsburgh Medical Center (UPMC) compared concussion rates among high school
athletes who wore the Riddell Revolution helmet with those who wore
“traditional helmets.” The study, published in a peer-reviewed neurology
journal, found that the Revolution helmet reduced concussions by 31% as
compared to traditional helmets.  Plaintiffs offered numerous reasons why the
UPMC was fundamentally flawed and unreliable, including conflicts of interest: Riddell
provided a grant to pay the salaries of the two primary authors of the study,
while a third author was a Riddell employee. Moreover, plaintiffs alleged that
the traditional helmets were not new, but refurbished; that the participants
were not randomly assigned helmets; that the authors disregarded 15% of the
collected data without sufficient explanation and manipulated other data to
reach a pre-determined conclusion; and that initial data failed to show a
statistically significant difference between the helmets. Plaintiffs found
corroboration in the criticisms of several peer reviewers. UPMC allegedly
instructed Riddell “that this data should not be use[d] as a marketing ploy or
marketing tactic from a scientific paper that was not for those purposes” and
that Riddell shouldn’t use the study to say that the Revolution helmet provides
better protection, but Riddell ignored this admonition. UPMC allegedly said
that Riddell should refer to a 2.3% reduction in absolute risk, as opposed to a
31% reduction in relative risk.  Further,
plaintiffs alleged that other studies showed, and the majority of independent
experts agreed, that Riddell’s claims were false or misleading.
 
Plaintiffs also discussed an FTC investigation, which
concluded that Riddell lacked substantiation for its claims, because the UPMC
study didn’t prove a 31% reduction in concussion risk, and didn’t test youth
helmets.  The FTC emphasized that the
helmets weren’t randomly distributed, and that the average age of the kids who
got concussions was different in the test and control groups.  The FTC ultimately declined to recommend
enforcement action because Riddell had abandoned its 31% reduction claim and a
Virginia Tech study appeared to show that “Revolution varsity helmets perform
much better than Riddell’s ‘traditional’ VSR–4 helmet in reducing concussion
risks attributable to linear acceleration, one of the primary forces to which
helmets are subject.”
 
Some of Riddell’s adds explicitly referred to a 31%
reduction in concussions, such as “Research shows a 31% reductions in
concussions in players wearing Riddell Revolution Helmets.” Riddell allegedly
made the same 31% reduction claims when advertising other helmets in the
Revolution “family.”
 
The court noted that another opinion refusing to dismiss
similar claims against Riddell is now vacated because of the terrible, terrible
opinion in In re GNC.  Midwestern Midget Football Club Inc. v.
Riddell, Inc., Civ. 15–00244, 2015 WL 3797107 (S.D.W. Va. June 18, 2015) (West
Virginia Consumer Credit and Protection Act). 
But, the court noted, In re GNC
purports to be about the Lanham Act (even though it was evaluating state
consumer protection law), and thus the court didn’t consider it binding in this
state consumer protection case.
 
Although there was some variation in the marketing
statements plaintiffs identified, they fell into three categories: (1) 31%
reduction in concussions; (2) claims about “concussion reduction technology;”
and 3) statements about youth helmets.  Plaintiffs sufficiently identified the
statements at issue, and adequately pled causation, reliance, and injury.  Alleging the exact or approximate price they
paid, plus the existence of a $50 price premium, sufficed; plaintiffs didn’t
need to plead the exact price of every helmet they could have purchased but did
not.
 
But were the claims plausibly false or misleading?  No, for the 31% reduction claims.  Plaintiffs didn’t allege that Riddell mischaracterized
the UPMC study’s findings, but rather challenged the quality of the study
itself.  “[I]dentifying flaws in a
scientific study does not necessarily make marketing statements based on such a
study false or misleading…. [P]ublication of the study’s results in a
respected, peer-reviewed journal provides some evidence that the study is in
fact reliable.”  Plaintiffs didn’t
identify any scientific study that showed the 31% reduction claim to be false
or misleading with respect to Riddell helmets specifically. The same was true
of some of the “concussion reduction technology” claims: plaintiffs didn’t
plead that different Riddell helmets contained different design features than
those in the helmet tested in the UPMC study.
 
However, more general references to “concussion reduction
technology” that protected young players better than other helmets were
plausibly false and misleading, because of plainiffs’ allegations that there
were no material differences between Riddell helmets and other football helmets
available to consumers.  A University of
Wisconsin study, which concluded that no brand of football helmet was
comparatively better at reducing the incidence of concussions, lent
plausibility to these allegations. “[T]he phrase ‘concussion reduction technology’
necessarily implies the ability to reduce concussions.”
 
Moreover, claims made for youth helmets that weren’t the
UPMC-tested Revolution helmet were also plausibly misleading or deceptive,
since the UPMC study didn’t include any youth helmets.
 
Finally, the court dismissed any omission-based claims.  Plaintiffs alleged that Riddell knew its
helmets couldn’t reduce concussions.  But
they didn’t identify a discrete omission that Riddell failed to disclose, and
most of the ads included a reference to the article discussing the UPMC study,
so “it is questionable whether the supposed flaws in the UPMC study were
actually concealed.”
 
In the end, various New Jersey, Florida, Arizona, Illinois, and
California claims survived.

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