In February 2016, a class-action lawsuit
was filed against Bayer Consumer Health for allegedly deceptively marketing Dr. Scholl’s “Custom Fit Orthotic” inserts. The complaint alleges that the company deceptively markets over-the-counter shoe inserts as “custom fitted orthotics” when, in reality, they are standardized, factory-manufactured inserts and do not compare to a custom orthotic device, which is tailored to the measurements of an individual’s feet. In addition, the complaint alleges that Dr. Scholl’s Custom Fit Orthotics Foot Mapping Kiosk makes consumers who use the machine believe that they are having custom orthotics designed for their feet when, in reality, the Kiosk directs consumers to one of fourteen pre-manufactured Dr. Scholl’s over-the-counter arch inserts and the Kiosk is not programmed to refuse offering a product to any consumer who uses it. (Kommer et al v. Bayer Consumer Health, a division of Bayer AG, and MSD Consumer Care, Inc.
, Case No. 16-cv-1560, S. D. NY.)