A federal appeals court affirmed a lower court ruling that Bayer AG did not mislead customers by advertising its shoe inserts as being "custom fit."
When customers visit an in-store kiosk, after taking measurements, the kiosk recommends a shoe insert, based on the 14 sizes that are available. The court determined that advertising these inserts as "custom fit" wasn't likely to mislead consumers, acting reasonably.
At oral arguments in mid-January, the three-judge Second Circuit panel asked Berg how a reasonable person could be tricked into thinking they were avoiding a costly doctor’s appointment and getting unique inserts if they ultimately had to go to a shelf and choose one of 14 models.
https://www.law360.com/articles/1008655/2nd-circ-affirms-dismissal-of-dr-scholl-s-class-action
