As both consumers and advertising lawyers know, there are many ways that unscrupulous advertisers mislead their target audience: they tout false claims about their products, make misleading price comparisons, trick consumers into unwittingly signing up for ongoing charges, and more. When advertisers engage in such conduct in a health-related context, or if they target an especially vulnerable audience, they are likely to attract the attention of at least one of the following: regulators, self-regulators, competitors and class action lawyers. Usually, such advertisers are trying to part consumers from their hard-earned dollars and their challengers –- whether government, NAD or consumers -- are hoping to remedy the harm to the consumers' pocketbooks.
Sometimes, though, bad advertising hurts the public in other ways. And a recent decision from NAD shows that advertising law can be an effective means of challenging such conduct. At issue were claims made by Problem Pregnancy, so-called crisis pregnancy center located in Massachusetts.The Lawyering Project, a reproductive rights organization, challenged Problem Pregnancy's advertising at NAD, arguing that Problem Pregnancy's claims convey the misleading message that Problem Pregnancy will provide complete information about all reproductive care options, including abortion, to the pregnant women who consult with the center, when in fact it does not.
The landing page of Problem Pregnancy's customer-facing website shouts "The choice is yours!" And, as detailed in NAD's decision, the centerpiece of the website is this statement "If you're facing an unplanned pregnancy and want help with your next steps, visit Problem Pregnancy. Problem Pregnancy provides free pregnancy tests, limited ultrasound, and abortion consultations. Contact us to talk with someone about your situation and learn about all of your options. All of our services are free and confidential." This is accompanied by several tabs on the website detailing the purported services Problem Pregnancy offers, along with medical guidance about common abortion methods.
As is evident on a separate website directed to potential donors, however, Problem Pregnancy's real mission is "provide alternatives to abortion for the young, troubled pregnant mothers of the Worcester area" in order to "save as many [babies] as we can, one by one."
Accordingly, the challenger argued, Problem Pregnancy's claims on its customer-facing website that it would provide complete information about all reproductive care options, including abortion, provide accurate medical information, and respect the reproductive choices made by its clients, are false and misleading. Women faced with an unintended pregnancy who visit the center with the hope that they will receive fulsome and unbiased information about their options will instead receive misleading information designed only to prevent them from choosing abortion. The ultimate deceptive door opener.
The challenger supported its arguments with the results of a consumer-perception study it commissioned from survey experts Dr. Jackie Chorn and Emma DeBald at NERA. The survey determined that visitors to the Problem Pregnancy website are indeed likely to be deceived about both the services and information they would receive from Problem Pregnancy.
Rather than participate in the challenge and defend its advertising, however, Problem Pregnancy chose not to respond to NAD. Thus, NAD referred the matter to the Massachusetts Attorney General for possible enforcement and to the social media platforms to review the advertising to determine whether it is consistent with platform advertising standards or policies.
NAD/CARU Case Reports, #7307 (May 2024)
(For transparency, my colleague Kate Patton and I proudly represented The Lawyering Project in this challenge.)
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