Ad description
Claims on the firstresponsefertility.com website, viewed in October 2011, included text on pack shots that stated "TELLS YOU FIRST ... 6 DAYS EARLIER THAN THE DAY OF YOUR MISSED PERIOD ... First to detect the pregnancy hormone Over 99% Accurate when present". Further claims included "Find out if you're pregnant 6 days before your missed period. Over 99% accurate.** ... Find out FIRST! Now you no longer have to wait until you miss your period! The First Response pregnancy test can be used 6 days earlier than the day of your missed period* ... Accurate... Over 99% accurate in laboratory testing". The claims were repeated throughout the website. Small print at the bottom of each page stated "* First Response detects the pregnancy hormone 6 days earlier than the day of your missed period. 62% could get accurate results 6 days before day of missed period. ** Over 99% accurate in detecting the LH surge in laboratory studies ...".
Issue
Swiss Precision Diagnostics GmBH (SPD) challenged whether:
1. the claims "Find out if you're pregnant 6 days before your missed period. Over 99% accurate.**", "Accurate... Over 99% accurate in laboratory testing" and "Over 99% Accurate", which appeared in pack shots, misleadingly implied the test was over 99% accurate six days before the day of the missed period. They believed the qualification "** Over 99% accurate in detecting the LH surge in laboratory studies ..." did not make clear that the test was claimed to be over 99% accurate one day before the period was due but no earlier than that; and
2. the unqualified claims "Find out if you're pregnant 6 days before your missed period" and "TELLS YOU FIRST ... 6 DAYS EARLIER", which appeared in pack shots, misleadingly implied the product was accurate six days before a period was due, whereas they understood the six days to have been measured by counting backwards from the day after the day the period was due.
Response
1. & 2. Church & Dwight UK Ltd (C&D) said the packaging of the product had been approved by their notified body and had been awarded a CE mark under EC law. They said the other claims on the site derived from the approved packaging and were fundamental to their business. However, they were aware that the ASA had previously adjudicated against such claims and they were therefore moving towards making the claims in a revised form. They acknowledged that the site repeated some of the same problematic claims and said they had therefore expedited updates to their website, which were already in progress when the ASA had contacted them. They said the website served their global business interests and therefore adapting the content to accommodate the regulatory requirements of one country, where the same claims might be acceptable in other jurisdictions, required careful management.
They said it was proposed that the claims on the pack shots would be pixelated and the other claims would be revised to state "First Response has patented ultra sensitive technology that can detect really small amounts of the pregnancy hormone. That means you could get the answer with First Response one day before any other pregnancy test. First Response tells you first. Always read the leaflet. 62% of women tested effectively five days before their period was due".
Assessment
1. & 2. Upheld
The ASA acknowledged C&D intended to amend their website. We were concerned, however, that claims continued to appear that the ASA had previously adjudicated against. We noted those adjudications concluded that the previous ads were misleading because some consumers might interpret the claims to mean that the product could tell them if they were pregnant six days before the date their period was due. That was not the case, however, because the claims were based on the date of a "missed period", which was intended to mean the day after the period was due. We considered consumers might understand that if their period did not come on the day it was due that would be the day of the missed period, rather than the day after, and we therefore considered the ads could be interpreted to mean the product could tell viewers if they were pregnant six days before the date their period was due.
In the case of the website, we considered the claims "Find out if you're pregnant 6 days before your missed period. Over 99% accurate.**", "Accurate ... Over 99% accurate in laboratory testing" and "Over 99% Accurate", which appeared in pack shots, were likely to be interpreted as suggesting the product was over 99% accurate six days before the date a period was due. We considered the qualification "** Over 99% accurate in detecting the LH surge in laboratory studies ...", which was linked to the claims, did not make sufficiently clear that was not the case. We noted the small print "* First Response detects the pregnancy hormone 6 days earlier than the day of your missed period. 62% could get accurate results 6 days before day of missed period", which was not linked to the claims and therefore might not in any case be read in conjunction with them, also appeared. We considered, however, that qualification was ambiguous and contradicted the claims that the product was 99% accurate. We considered consumers were likely to interpret the claims to mean that the product was 99% accurate when used from the earliest time described in the ad. Because that was not the case, we concluded that the claims were misleading.
We considered the claims "Find out if you're pregnant 6 days before your missed period" and "TELLS YOU FIRST ... 6 DAYS EARLIER", which appeared in pack shots, were likely to be interpreted as suggesting the product could tell viewers if they were pregnant six days before the date their period was due, in particular because the latter claim stated only "... 6 DAYS EARLIER". We noted those claims were not qualified but that the previous adjudications required that claims based on the concept of 'the day of the missed period' must be qualified to clearly explain, in the body copy of the ad, what was meant by "missed period". We therefore concluded the claims were also misleading.
The ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising) and
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
and
3.10
3.10
Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification.
(Qualification).
Action
The ad must not appear again in its current form. We told C&D that if they wished to continue making claims based on 'the day of the missed period' they should explain clearly in the body copy of the ad what was meant by "missed period" and "day of missed period". We also told them to ensure qualifying text did not contradict claims in future and to ensure future advertising did not include misleading claims.
