By John T. Wolohan, Syracuse University
Introduction
While it may seem that the only issue facing the National Football League (NFL) and the sport of football during the last eight months is underinflated footballs and the over-reaching power of the NFL’s commissioner, the league and the sport are facing a much bigger issue that goes to the potential survival of the sport: concussions and brain injuries. During the last 15 years, as the result of a number of high profile suicides by former players and increased medical attention, the public has become more aware of the health risks associated with football and in particular C.T.E., or chronic traumatic encephalopathy, a degenerative brain disease linked to repeated blows to the head.
With so much attention focused on protecting players from concussions and head injuries, it is not surprising that football helmet manufacturers would try to cash in by trying to create a safer product. Believing that it had developed new technology that did in fact reduce the rates of concussions among high school athletes who wore their new helmets, compared to those who wore traditional helmets, Riddell funded a scientific study at the University of Pittsburgh Medical Center (“UPMC”) to try and demonstrate the protective benefits of their Revolution helmet. In comparing the concussion rates among high school athletes who wore the Riddell Revolution helmet with those who wore “traditional helmets,” the UPMC study, published in a peer-reviewed neurology journal, found that the Revolution helmet reduced concussions by 31% as compared to traditional helmets.
As a result of this study, Riddell started to market the Riddell Revolution helmet as possessing concussion reduction technology. Riddell, however, allegedly also made this same 31% reduction claim when advertising other helmets in the Revolution “family” like the IQ, IQ HITS, Youth, Speed, and Speed Youth, even though the UPMC study only included the Revolution helmet.
Case
In Re Riddell Concussion Reduction Litigation, 2015 U.S. Dist. LEXIS 101415, a group of plaintiffs, four individuals and one school district, allege that they purchased the helmets based on Riddell’s repeated reference to concussion reduction technology through their website, direct sales force, product packaging, promotional advertisements and marketing materials which was intended to “convey to consumers that these football helmets can reduce the incidence of concussion when compared to other modern football helmets available for sale from other manufacturers.” However, the plaintiffs argue that since Riddell’s helmets are incapable of reducing the incidence of concussions compared to other football helmets on the market, they suffered economic harm by paying a $50 price premium for Riddell’s helmets. As a result, the plaintiffs argue that Riddell is in violation of the Consumer Fraud laws.
In support of their argument, the plaintiffs’ claim that the original UPMC study relied on by Riddell was flawed and biased since it was funded by Riddell and one of the study’s authors was a Riddell employee. The plaintiffs argue that another research study, which was independent, objective and reliable, showed that Riddell’s claims were false because the helmets “did not provide the promised concussion reduction technology or result in decreasing the incidence of concussions.” The plaintiffs further allege that Riddell knew their helmets could not actually reduce the incidence of concussions.
Riddell, on the other hand, argues that the plaintiffs were unable to establish a claim for consumer fraud. Specifically, Riddell argued that the plaintiffs have not alleged facts demonstrating that the 31% concussion reduction claim is false. Likewise, Riddell contends that the plaintiffs have not plausibly alleged that their claim regarding concussion reduction technology is false. If the plaintiffs are unable to show that its’ marketing claims are false, Riddell argued that the plaintiffs could not possibly allege “unfair” and “unlawful” business practices claims. Therefore, Riddell argued, the plaintiffs’ lawsuit must be dismissed.
Decision
In reviewing the case, the Federal District Court in New Jersey held that to state a claim for relief under the consumer protection laws, the plaintiffs must allege that Riddell’s marketing statements were false, deceptive, or misleading. Plaintiffs allege that Riddell repeatedly made false, deceptive, or misleading marketing claims in three specific areas: 1) claims that reference a 31% reduction in the incidence of concussions; 2) claims that reference “concussion reduction technology;” and 3) claims that reference youth helmets.
In looking at the three marketing statements or claims made by Riddell and whether they supported a claim of consumer fraud, the Court began by reviewing Riddell’s claim that the use of their helmets resulted in a 31% reduction in concussion. In finding no evidence that this statement was false, the Court held that it, and other courts have held that identifying flaws in a scientific study does not necessarily make marketing statements based on such a study false or misleading. Moreover, the court observed that publication of the study’s results in a respected, peer-reviewed journal provides some evidence that the study is in fact reliable. The court noted that statements that “research shows a 31-41% reduction in concussions in players wearing Riddell Revolution helmets” reported “exactly what the study shows, so it cannot be literally false.” Therefore, the court concluded that the plaintiffs may not base their consumer fraud claims on marketing statements which accurately reflected the results of the UPMC study, regardless of the study’s purported flaws.
Next, the Court examined Riddell’s claims in promotional videos and other marketing material that their helmets were equipped with “concussion reduction technology.” In looking at the helmets, the Court found that the plaintiffs had not demonstrated any consumer fraud based on statements regarding specific design features of the helmets. However, the Court did find that Riddell’s claim that: “Riddell’s exclusive Concussion Reduction Technology protects young athletes against concussions and impact,” was at the very least misleading or deceiving to consumers regarding the ability of Riddell’s helmets to reduce the incidence of concussions. Therefore, the Court held that to the extent Riddell’s helmets cannot in fact reduce concussions, the plaintiffs have provided a plausible basis that these marketing statements are false, misleading, or deceptive.
Finally, the Court examined Riddell’s claims relating to their youth helmets. Since Riddell advertised certain youth helmets with reference to a 31% reduction in concussions, including the “Youth” and “Speed Youth” helmets, even though those helmets were not part of the original study, the Court found that the plaintiffs have plausibly alleged that Riddell’s reference to a statistic from a study which did not include any youth helmet models is at least misleading or deceptive.
Conclusion
While the plaintiffs still have another legal battle to fight before showing that Riddell committed consumer fraud, the Court’s decision to hold Riddell accountable for their alleged false and misleading marketing statements should send an important message to Riddell and other sport equipment manufacturers. Just because these products are used in sports, the court made it clear that they will not tolerate the use of false or misleading information to market and sell products. Therefore, if a manufacturer claims that their products perform in a certain way, the product better live up to that standard or the manufacturer should prepare to explain why they said what they did in court.
IN RE RIDDELL CONCUSSION REDUCTION LITIGATION; D. N.J.; 2015 U.S. Dist. LEXIS 101415, Civil Action No. 13-7585 (JBS/JS). 8/3/15
