Bauer Hockey Corp. has reached a settlement to resolve an inquiry by Canada’s Competition Bureau regarding certain aspects of its advertising for the BAUER RE-AKT Helmet.
Specifically, the Bureau requested that Bauer remove or modify certain existing performance claims in Canada regarding the helmet. As part of the settlement, Bauer Hockey has also agreed to donate $500,000 worth of sports equipment to a Canadian charity over the course of five years.
Bauer claimed it had devoted “significant resources into researching, developing and testing its helmets and (that) the RE-AKT helmet meets all Canadian Standards Association (CSA) and Hockey Equipment Certification Council standards.”
The Bureau, however, concluded that the testing commissioned and conducted by Bauer Hockey as a basis for certain performance claims related to the RE-AKT hockey helmet did not meet the standard of an “adequate and proper test,” as required by Canada’s Competition Act. The Bureau stopped short of calling Bauer’s advertisements false or misleading.
A relevant consideration for the Bureau in its evaluation of Bauer’s testing of its RE-AKT helmet was the absence of an established injury threshold for concussions. More specifically, Dr. Tad Siefert told the Toronto Star that part of the challenge was the lack of research available as to the kind of protection that the helmet allegedly provided.
“We have a fairly good idea with regard to linear acceleration — a head-on hit or a hit straight from the back,” Siefert, director of the sports concussion program at Norton Health Care in Louisville, Ky, told the Star. “But the hit from the side or the hit that’s associated with any degree of head rotation, that data is very much in its infancy.”
The CSA is reportedly considering the adoption of a new standard for determining rotational shock absorbing capacity for hockey helmets.
Bauer seemed to embrace that idea.
“We hope that the Bureau’s inquiry and conclusion raises awareness for the need to enhance current standardized testing protocols for helmets,” said Rich Wuerthele, executive vice president of Bauer in a statement.
NOCSAE’s Oliver, Others Weigh In
Meanwhile, Mike Oliver, the executive director of the National Operating Committee on Standards for Athletic Equipment (NOCSAE), told Concussion Litigation Reporter that “the premise underlying the decision is both reasonable and accurate with regard to what helmets can and can’t do, and as to the level of scientific proof that should accompany any claim of measurable improvement to concussion protection.”
He continued: “There are far too many anecdotal stories offered as proof that certain products protect against concussive injuries. This decision mandates a much higher and verifiable level of evidential proof if such claims are to be made. Emotions run high on all sides of the concussion discussion. Parents worry about the long-term consequences of a concussive injury, and are easy targets for a simple solution. Imposing an objective and strict proof requirement recognizes the potential for misplaced reliance and should effectively limit such unsupported claims.”
The greatest value of the ruling may be the message it sends to other manufacturers, according to Timothy Liam Epstein, a Partner and Chair of the Sports Law Practice Group at SmithAmundsen LLC.
“The dollar amount is not insignificant, but Bauer’s parent company has revenues of near $450 million across its sports products, with Bauer having the largest market share for hockey equipment,” said Epstein.
“To me, this is bulletin board material for general counsel of sporting goods manufacturers to take to their meetings with their advertising and marketing departments to really be careful on what is put out there to the public. I have no doubt that the RE-AKT claims went through legal, but often there are pre-campaign internal battles between legal wanting to be more conservative on safety claims versus advertising and marketing who know that the bigger claim can lead to greater sales. Clearly, the Competition Bureau thought this was a reach by Bauer. RE-AKT may very well do everything that Bauer is claiming and more, but the Competition Bureau here wanted more than just Bauer’s testing results.”
