A listing on www.amazon.co.uk promoted a "Gender Prediction Test". The ad was headed "Boy of Girl? Pregnancy Baby Gender Prediction Test" and further text stated "GENDERmaker urine-based baby gender prediction test is easy to perform in the comfort of your home", "Find out if you're having a Boy or a Girl as early as 6 week [sic] of your fetal development", "Gender prediction test results in less than a minute" and "Accurate gender prediction results". Further text under the heading "Product Description" stated "Satisfy your curiosity with our accurate and easy to use urine baby gender prediction test. Are you having a Boy or Girl? With GENDERmaker urine gender test you can find out as early as 6 weeks of your pregnancy in the privacy and comfort of your home! Gender maker will satisfy your curiosity and give you accurate results in just seconds. No need to wait until your 18-20 weeks ultrasound to find out the gender of your baby. Gender Maker urine gender prediction test will speed up time, and close the gap between your curiosity and ultrasound. Get your urine prediction test today!".
The complainant challenged whether the repeated claims that the product could successfully predict the sex of an unborn baby were misleading and could be substantiated.
Gendermaker.com explained that the product was provided for entertainment purposes only and stated that the ad did not make any claims regarding the accuracy of the product. They amended the "Product Description" to include the claim "Whilst we are confident in this test, we do not provide any warranty of guarantee as to the results. This test is provided for entertainment purposes only. By using the test, you agree to assume all responsibilities or outcomes from your actions or omissions. Do not make any financial or emotional investment based on this test. If you want an absolute determination of your baby's sex, please consult a medical professional ...". In addition, they removed the claim "Accurate gender prediction results".
The ASA understood that the product was not able to predict the sex of an unborn child and was designed for amusement only. We noted that Gendermaker had amended the "Product Description" to state that the product was for entertainment purposes only, but considered that that change was not sufficient to counter the overall impression that the product could successfully predict the sex of an unborn child. In particular, we noted the headline claim "... Pregnancy Baby Gender Prediction Test", and the claims "Find out if you are having a Boy or a Girl as early as 6 week (sic) of your fetal development", and "Glow pink or blue after determining the gender of your baby", in the body of the ad. We considered that a consumer would not be aware of the true nature of the product until they read the full "Product Description", which they could easily overlook. In addition, we considered that the claim regarding the fact the product was for entertainment purposes contradicted the overall impression of the ad. Therefore, we concluded that the ad was misleading.
The ad breached CAP Code (Edition 12) rules
Marketing communications must not materially mislead or be likely to do so.
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), 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation) and 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration).
The ad must not appear in its current form again. We told Gendermaker.com to ensure they did not state or imply that the product was designed to, and could accurately, predict the sex of an unborn baby, and instead clearly communicate that the product was for entertainment purposes only.