Church & Dwight Co., Inc. (C&D), a manufacturer of health and hygiene products, brought a false advertising suit against SPD Swiss Precision Diagnostics GmbH (SPD), a competitor in the home pregnancy test market. SPD's Clearblue Advanced Pregnancy Test with Weeks Estimator was at issue. The product was marketed as being able to determine how many weeks along a woman is in her pregnancy.
The Case Challenge
The US Food and Drug Administration (FDA) approved SPD’s product for estimating the time since ovulation. Physicians typically measure pregnancy duration based on time since a patient's last menstrual period (LMP), which often results in a different number of weeks compared to the measure since ovulation. C&D alleged that SPD's advertising, specifically television commercials, misled consumers into believing that the Clearblue test measured pregnancy duration in the same way a doctor would, leading to consumer confusion and constituting false advertising under the Lanham Act and New York State law.
The Expert Solution
C&D retained consumer survey expert Bruce Isaacson, DBA, to assess the messages conveyed by the Clearblue advertising campaign. Dr. Isaacson designed a custom consumer perception survey to measure whether the Clearblue television advertisement misled consumers. The survey addressed three main issues: 1) Whether viewers believed the product estimated “how many weeks pregnant” a woman is, 2) whether viewers understood that the estimate was based on time since ovulation, and 3) whether the estimate aligned with what a doctor would report.
Our team conducted interviews with 494 women aged 18 to 44 who were likely to purchase a home pregnancy test within the next year. Respondents were recruited from ten geographically diverse shopping malls and randomly assigned to view either a test commercial (Clearblue) or a control commercial in on-site interviewing facilities. The survey utilized both open-ended and closed-ended questions to assess comprehension and message takeaway. Of the total sample, 251 respondents viewed the test commercial and 243 respondents viewed the control commercial.
Survey Results
Open-Ended Responses:
- 56.6% of respondents believed the product estimated the number of weeks a woman has been pregnant
- Only 2.4% understood that it measured time since ovulation
- 0.0% of respondents viewing the control commercial believed that it communicated the number of weeks a woman has been pregnant
Closed-Ended Responses:
- 88.8% of test commercial viewers believed the ad implied the product measured the number of weeks a woman has been pregnant
- 13.6% of control commercial viewers believed the same
- A net 75.2% difference confirmed the commercial created a dominant pregnancy-week message
- 53.0% of test viewers believed the ad implied the product measured time since ovulation
- 9.9% of control viewers believed the same
- A net 43.1% difference confirmed that there was confusion
- 40% explicitly stated that the commercial communicated how many weeks a woman has been pregnant, not the time since ovulation
- 53.4% of test commercial viewers believed the product gave the same estimate as a doctor
- 7.8% of control commercial viewers believed the same
- A net 45.6% perceived the product's estimate as equivalent to a doctor's
Expert Insights
Dr. Isaacson testified that the survey research showed a substantial percentage of consumers interpreted the claims to mean that the test estimated the number of weeks pregnant, rather than the number of weeks since ovulation. The survey also provided a measure of how many consumers believed the test's results were equivalent to a physician's estimate.
The Outcome
The court admitted Dr. Isaacson's expert testimony and found SPD liable for false and misleading advertising in violation of the Lanham Act and New York State law. Church & Dwight were granted permanent injunctive relief, barring SPD from further advertising.
Reliable Surveys in Advertising and Regulatory Disputes
Properly conducted consumer surveys are essential for evaluating how advertising content is understood by consumers. At IMS Legal Strategies, our experts design scientifically rigorous surveys in disputes where advertising claims, consumer perception, and brand messaging are at issue. We deliver admissible findings that clarify what consumers take away from advertising.
Contact us today to connect with a survey expert for your case.
At the time of this engagement, Dr. Isaacson was the president of MMR Strategy Group, which joined IMS in May 2025 to form our dedicated Litigation Surveys & Consumer Science division.
