New York, New York – Feb. 10, 2011– The National Advertising Division of the Council of Better Business Bureaus has recommended that SPD Swiss Precision Diagnostics GmbH, the maker of the “Clearblue Easy Digital Home Pregnancy Test” modify its advertising to ensure consumers understand that the test only delivers completely “certain” results on or after the day of a consumer’s expected menstrual period.

The implied advertising claim at issue was challenged before NAD, the advertising industry’s self-regulatory forum, by Church & Dwight Co., Inc., a competing maker of at-home pregnancy test kits.

The following implied claim formed the basis of NAD’s inquiry:

• Because a doctor’s test gives complete certainty and Clearblue Easy Digital Home Pregnancy Test is as accurate as a doctor’s test, if a consumer purchases and uses CBE Digital and gets a pregnant result, she can be certain she is pregnant, and if she gets a not pregnant result, she can be completely certain she is not pregnant.

The challenger in this case argued that the claim was made in 30- and 15-second broadcast advertisements and communicated the message that CBE Digital will provide completely “certain” results, regardless of whether a consumer uses the product on the day of her expected menstrual period (EMP) or during the four-day period prior to her EMP.

The advertiser argued, however, that the challenged commercials make no claim, implied or otherwise, about the early detection capability of the product and do not falsely communicate to consumers that the product’s results are “certain” even when the test is used before a woman’s missed menstrual period.

NAD noted in its decision that, according to both parties, advertising for at-home pregnancy test kits has for many years focused primarily on the products’ capability to detect pregnancy early – several days before a woman misses her period. NAD determined that it would be reasonable to conclude that consumers have generally come to expect at-home pregnancy tests to detect pregnancy prior to the day of a missed period.

Based on the competitive history of the marketplace, NAD concluded that the challenged commercials could convey an implied early detection claim.

(Full text of decision available to media, upon request.)

Because NAD determined that a consumer might reasonably understand the commercials’ claim of “certainty” to apply to the detection of pregnancy prior to the day of EMP, NAD found communication of additional information was necessary to avoid giving rise to an inaccurate takeaway.

The broadcast advertising at issue includes a super that states “*Over 99% accurate from the day of the expected period. As Accurate as a doctor’s urine test.”

The information in the super is material, qualifying information because it appropriately limits the unqualified 99% accuracy claim to the day of EMP and notifies consumers that CBE Digital is as accurate as a urine test, as opposed to a blood test or ultrasound. NAD determined, however, that the disclosure was not sufficiently prominent or legible.

NAD recommended that, to avoid consumer confusion, the qualifying disclosure “Over 99% accurate from the day of the expected period” should be made part of the claim itself – visually if the claim appears in a visual, or orally if the main claim is oral.

NAD determined that SPD could support the claim that CBE Digital is “As Accurate as a Doctor’s Test,” finding that CBE Digital is as accurate as a doctor’s urine test administered on the day of EMP. However, to avoid potential consumer confusion, NAD recommended that SPD refrain from using depictions of x-ray or ultrasound images when comparing the accuracy of CBE Digital to a doctor’s urine test.

The company, in its advertiser’s statement, said that it understands NAD’s concerns that “consumers might interpret our commercial against a background of some information they have assimilated from the advertising of pregnancy test manufacturers collectively. We are troubled that this may be penalizing SPD for the omissions of others, and we suggest that overcoming this problem of implied messaging requires all pregnancy test manufacturers to clearly and explicitly explain the trade-off in their advertising. In this respect, we welcome NAD’s recognition that advertisers of home pregnancy tests should seek to ensure consumers are aware that testing prior to the day of the expected period is less accurate than testing on or after the day of the expected period. The problem of implied messaging will only be overcome by the industry adopting and conforming to common standards, and we will – in the interests of consumers – continue to campaign to achieve this.”

The company noted that it would take NAD’s recommendations into account in future advertising.