National Advertising Division Refers Advertising Claims Made by Ava Science to Federal Trade Commission
For Immediate Release
Contact: Laura Brett, Director, NAD, 212.705.0109 / firstname.lastname@example.org
New York, NY – March 4, 2020 – The National Advertising Division (NAD) has referred advertising claims made by Ava Science, Inc. for its Ava Ovulation Bracelet to the Federal Trade Commission for further review after the company declined to confirm that it would comply with NAD’s recommendation to modify certain claims despite multiple attempts by NAD to obtain a response.
NAD is an investigative unit of the advertising industry’s system of self-regulation and is a division of the BBB National Programs’ self-regulatory and dispute resolution programs.
The Ava Ovulation Bracelet is an FDA-registered medical device that claims to track five physiological signals of fertility and, with its proprietary algorithm, use the data to predict a consumer’s five most fertile days in her cycle in real time. As part of NAD’s routine monitoring program, NAD assessed whether Ava’s claimed “1 year pregnancy guarantee,” in the contexts in which it was presented, would be understood by consumers as a money-back guarantee or a performance claim (i.e. that the product can “guarantee” pregnancy).
With regard to social media, NAD noted that 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, “1 year pregnancy guarantee.” The post associated with the image stated “Get pregnant within a year using Ava, or get money back.” The advertiser stated that it subsequently modified the language in the circular graphic to state “1 year guarantee.” NAD determined that a consumer viewing the promoted post would see the stamp image that makes a general reference to a “1 year guarantee” together with the language in the short post that references getting one’s “money back.” Viewing the “guarantee” claim in this context, NAD determined that it is sufficiently disclaimed as a “money back guarantee” and not a performance guarantee.
As for the “guarantee” claim on Ava’s website, NAD noted that this is presented in a somewhat different context. Ava offers its product in the form of two “bundles”: (1) a basic package which includes the bracelet, app, pregnancy tracking and “access to the Ava community,” but no money-back guarantee; and (2) a “plus” package for an additional $100 that also includes an e-book and a “one-year guarantee of pregnancy*.” NAD noted that scrolling over the guarantee reveals that it is a hyperlink, where the terms of the money back guarantee are described. However, without scrolling over the claim, it is not necessarily clear that the words are a hyperlink. The phrase is not underlined and there is no additional language (such as “terms and conditions” or “learn more”) to indicate that more information about the guarantee is available if the language is clicked. The asterisk does not direct consumers to information about the guarantee elsewhere on the same webpage.
NAD determined that consumers who see the advertiser’s website claim, “one-year guarantee of pregnancy*,” could reasonably take away the message that the statement is a performance claim and not a money-back guarantee. Therefore, NAD recommended that the advertiser modify the claim to make clear that the guarantee is a “money back guarantee” and not a promise that they will become pregnant. NAD also recommended that the advertiser modify its 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.
In light of the advertiser’s failure to confirm that it would comply with NAD’s recommendations, NAD has referred that matter to the FTC for possible enforcement action.
About the National Advertising Division (NAD): National Advertising Division (NAD), a division of BBB National Programs, provides independent self-regulation overseeing the truthfulness of advertising across the U.S. NAD reviews national advertising in all media and its decisions set consistent standards for truth and accuracy.
About BBB National Programs: BBB National Programs (BBB NP) fosters trust, innovation, and competition in the marketplace through the development and delivery of cost-effective, third-party self-regulation, dispute resolution and other programs. The programs were formerly administered by the Council of Better Business Bureaus. BBB NP is the home of industry self-regulatory and dispute resolution programs that include the National Advertising Division (NAD), National Advertising Review Board (NARB), BBB EU Privacy Shield, BBB AUTO LINE, Children’s Advertising Review Unit (CARU), Children’s Food and Beverage Advertising Initiative (CFBAI), Children’s Confection Advertising Initiative (CCAI), Direct Selling Self-Regulatory Council (DSSRC), Digital Advertising Accountability Program (Accountability Program), and the Coalition for Better Advertising Dispute Resolution Program (CBA DRM). The programs are designed to resolve business issues and advance shared objectives by responding to marketplace concerns to create a better customer experience. To learn more about industry self-regulation, please visit: BBBNP.org.