NEW YORK — The National Advertising Division on Thursday recommended that Church & Dwight discontinue its claim that the company’s First Response digital ovulation test is the “first and only test to predict ovulation based on your unique LH hormone level.”
The claim, which appeared on product packaging and on the company’s website, was challenged by SPD Swiss Precision Diagnostics, the maker of the Clearblue DOT, a competing digital ovulation test product.
The claim that the product — through use of an adaptive algorithm —can predict ovulation based on woman’s own luteinizing hormone level, suggests a test that is more sensitive than a test that only compares a woman’s daily LH measurements to some fixed threshold LH value, NAD noted. The claim is of significance to women who use home ovulation tests because LH Surge (the signal for ovulation) varies from woman to woman and from cycle to cycle.
A key consideration for NAD was the mechanism of action for each product. The issue, NAD noted, was not whether First Response —through use of an adaptive algorithm — predicts ovulation based on the user’s individual level of LH hormone, but whether it is the “first” and “only” home ovulation test to do so. The accuracy of the challenged claim, NAD noted, depended not on how the advertiser’s own product works, but on the mechanism of action for Clearblue DOT, the challenger’s product.
Advertisers are required to possess a reasonable basis for their product claims. In a case involving a “first and only” claim, the advertiser’s burden necessitates that it have some amount of information regarding how other competing products operate, information that may or may not be readily available, NAD noted.
In this case, C&D maintained that it had identified through its own testing key distinctions between the products that indicated Clearblue does not use a similar adaptive algorithm, NAD reported. NAD determined that although the evidence demonstrated that the products perform using different mechanisms, the evidence failed to show that Clearblue DOT does not utilize an adaptive algorithm.
Further, C&D maintained that SPD did not, prior to 2010, claim in its own advertising or package inserts to use such an adaptive algorithm, nor was the advertiser aware of any other competitor who did.
Following its review of the evidence, NAD determined that Church & Dwight — at the time it initially made the claim — had a reasonable basis for stating that First Response was the first and only test to predict ovulation based on a user’s unique LH hormone level.
However, NAD found, absent evidence that SPD Swiss Precision Diagnostics does not also use an adaptive algorithm, the advertiser cannot continue the make the claim. NAD recommended the claim be discontinued.