Nike & Apple Gizmo|Is Bogus, Class Claims

LOS ANGELES (CN) - Nike and Apple charge $150 for a bogus fitness device that claims to, but cannot, tell how many calories its owner has burned, a class action claims in Superior Court.

Lead plaintiff Carolyn Levin sued Nike and Apple on behalf of people who bought their Nike+FuelBands to calorie counter.

The retail giants defraud people by claiming the gizmo "'measures each step taken and calorie burned,' '[t]racks steps, calories, and time of day' and 'tracks calories burned, steps taken and more,'" the complaint states.

However, "In truth, the Nike+FuelBand cannot and does not track each calorie burned, and users experience wildly inaccurate calorie burn readings when using the FuelBand," the complaint states. "Defendants were aware when the FuelBand was first marketed, advertised and sold to Levin and the buying public, and remained aware throughout the class period, that the FuelBand was incapable of accurately tracking every calorie burned by FuelBand users, and that their advertising was therefore false and misleading ... and damaging [to] consumers."

Nike says on its website that the FuelBand is a wristband gadget that "uses a sports-tested accelerometer to measure your movement in NikeFuel, a universal metric of activity." Nike claims users can set a daily NikeFuel goal and track calories burned and steps taken by synching to an app on an iPhone. Users can share their progress and achievements on Facebook, Twitter and Path, the website claims.

A FuelBand sells for $149 at Nike and Apple online stores, but range in price from $190 to $280 on eBay, according to a Google search on Monday.

Levin claims that "hundreds of thousands of Nike+FuelBands [have been] sold throughout the world," including tens of thousands in California.

She claims that "the FuelBand remains wholly unable to calculate or provide an accurate calories burn reading, no matter who the user of the FuelBand is, and no matter what type of activity that user engages in."

A calorie is the amount of heat needed to raise the temperature of 1 gram of water 1 degree centigrade at a specified beginning temperature.

Given the range in human body types, metabolism and fitness levels, elementary science indicates that an off-the shelf device would need to be extraordinarily sophisticated to be able to measure calorie consumption.

Levin seeks an injunction, disgorgement, restitution, and punitive damages for negligent misrepresentation, fraudulent misrepresentation and violations of California business laws.

She is represented by Thomas Girardi with Girardi & Keese and by Paul Philips of the Law Offices of Paul N. Philips.

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