As part of its routine monitoring, NAD recently examined claims made by Ava Science, Inc. for its Ava Ovulation Bracelet. The bracelet is an FDA-registered medical device that tracks physiological signals of fertility and uses data to predict a consumer’s most fertile days in her cycle. Ava advertised the device with the claim “1 year pregnancy guarantee.”

The advertiser stated that this claim was a money-back guarantee: if the consumer did not become pregnant after a year of continuous use of the bracelet (along with some other conditions), she could get her money back. However, NAD was concerned that the claim also communicated a pregnancy guarantee. As NAD noted, “[d]espite the intentions of an advertiser, a guarantee may, depending on the wording and specific context presented, constitute an affirmative performance claim.”

As it always does, NAD examined the claim in context to determine what it was likely to communicate. On social media, Ava’s guarantee claim appeared on sponsored posts in the form of a circular “stamp” graphic next to a picture of a pregnant woman. Around the circle it stated, after the advertiser's modification, “1 year guarantee.” The post associated with the image stated, “Get pregnant within a year using Ava, or get money back.” For this usage of the claim, NAD determined that the context was sufficiently clear to communicate that only a money back guarantee was communicated, not a pregnancy guarantee: “Here, NAD determined that a consumer viewing the promoted post would see both the stamp image that makes a general reference to a “1 year guarantee,” and the language in the short post that references getting ones “money back.”

However, NAD felt differently about the claim on the Ava website, where the guarantee was presented as follows: “one-year guarantee of pregnancy*,” with the asterisked hyperlink leading to an explanation of the refund policy. In that context, NAD determined that consumers “could reasonably take away the message that the statement is a performance claim and not a money-back guarantee. The hyperlinked disclosure is not clear or conspicuous and does not sufficiently give notice to consumers that the “guarantee” is a money-back guarantee and not a performance guarantee.” Accordingly, NAD recommended that the advertiser modify the claim to make clear that the guarantee is a “money back guarantee” and not a promise that users of the product will become pregnant. Also, NAD recommended that AVA modify the hyperlink to make clear that it is a hyperlink and “to inform consumers that clicking on it will lead them to the terms of its money-back guarantee.”

Since AVA did not submit an Advertiser Statement saying that it would comply with the Decision, NAD has referred the matter to the FTC.

The takeaways: First, audience matters. Undergirding NAD’s decision was its concern that women trying to get pregnant are an especially vulnerable audience: “For women trying to become pregnant, especially for those having difficulty, the claim that purchasing a product can provide “guaranteed” pregnancy is an impactful and compelling claim.” Does this perspective mean that NAD thinks that women are not “reasonable consumers” who understand that no tracking device can cause pregnancy? A troublesome conclusion, if so. But regulators and self-regulators alike have always been concerned about protecting vulnerable consumers and extending that protection to consumers trying hard to get pregnant (with all the attendant anxiety and expense for some) is perhaps not a surprising conclusion. Second, context matters. As always, it’s important to ensure that material terms are presented clearly, conspicuously, proximately to the claim, and in a manner that explains rather than contradicts it.

Case Report #6348