An unClear Case of False Advertising: Clear Blue Case Facts
Plaintiff Church & Dwight Co., Inc. (C&D) and Defendant SPD Swiss Precision Diagnostics GmbH (SPD) are competing manufacturers of home pregnancy tests. SDP launched a new home pregnancy test with a “weeks estimator,” called Clearblue Advanced Pregnancy Test with Weeks Estimator. The FDA approved the use of the test to tell a woman whether she is pregnant and how many weeks since she has ovulated. C&D claim that since doctors measure pregnancy based on how many weeks since the mother’s menstrual period, and not since ovulation, that the Clearblue product conveys a false message.
MMR Strategy Group provides Expert Witness Testimony and Advertising Messaging Survey
Proskauer Rose, representing the Plaintiff, retained expert witness Dr. Bruce Isaacson to conduct a survey to measure the messages communicated by a television commercial. Dr. Isaacson designed a survey that intended to measure the main ideas communicated by the Clearblue Pregnancy Test with Weeks Estimator. At issue were whether the commercial communicates the number of weeks pregnant rather than the number of weeks since ovulation, and whether the number of weeks that Clearblue communicates is the same estimate a doctor would provide.
MMR Strategy Group conducted an advertising survey of qualifying women between 18-44, likely to purchase a pregnancy test in the next 12 months. Respondents were recruited in a shopping mall, in ten geographically dispersed locations nationally, and shown either a control or Clearblue commercial in an interviewing facility on site. MMR Strategy Group designed a questionnaire with open and close ended questions to measure messaging. The survey database included 494 interviews, with 251 respondents viewing the test commercial, and 243 viewing the control commercial.
Main Ideas Communicated
The following are the result of open ended questioning of respondents viewing either test commercial or control commercial.
- 56.6% of respondents believed the product estimated number of weeks a person is pregnant
- 2.4% of respondents believed the product estimates number of weeks since ovulation
- 0.0% reported that the messaging of the control commercial estimated the number of weeks pregnant
Specific Messages Communicated
- The following are the result of direct questioning of respondents viewing either the test or the control commercial.
- 88.8% of respondents viewing the test commercial responded that it implies the product tests the number of weeks pregnant.
- 13.6% of respondents viewing the control commercial responded that it implies the product tests the number of weeks pregnant
- A net percentage of 75.2% of respondents received the message that the products tests how many weeks pregnant a woman is
- 53% of respondents viewing test commercial believed that the test commercial implies that the product tests time since ovulation
- 9.9% of respondents viewing the control commercial responded that they believed the commercial implied the product tests time since ovulation
- A net percentage of 43.1% of respondents received the message that the product measures time since ovulation
- 40% responded that the commercial communicates how many weeks pregnant a woman is, not how many weeks since she has ovulated
- 53.4% of respondents viewing the test product believe the product communicates the same messaging as a doctor
- 7.8% of respondents viewing the control commercial believe the product communicates the same messaging as a doctor
- A net percentage of 45.6% believed that the product provides the same estimate a doctor would provide
Based on the results of the survey, Dr. Bruce Isaacson concluded that the commercial communicates to relevant viewers that the product estimates the number of weeks pregnant without communicating that it is based on time since ovulation and that a substantial percentage or relevant viewers believe that the products estimate is the same estimate as a doctor would provide.
The court concluded the expert testimony of Dr. Bruce Isaacson was admissable because it “was based on sufficient facts or data, the product of reliable principles and methods, and reliably applied to the facts of this case.’ The court found that SDP engaged in false advertising in violation of the Lanham Act and under New York State Law, that it was intentional and deceptive, and that C&D was entitled to a permanent injunction.