LOS ANGELES (Legal Newsline) – A California woman is suing several consumer diagnostic products companies over allegedly misrepresenting the efficacy of a certain pregnancy test product.
Amanda Olvera, individually and for all others similarly situated, filed a class-action lawsuit Dec. 7 in the U.S. District Court for the Central District of California against SPD Swiss Precision Diagnostics GmbH, Procter & Gamble and Alere Inc., alleging violations of the Magnuson-Moss Warranty Act, breach of express and implied warranty, unjust enrichment, violations of California's Consumers Legal Remedies Act, its Unfair Competition Law, and its False Advertising Law, negligent misrepresentation and fraud.
The suit states that SPD, a joint venture between Procter & Gamble and Alere, introduced its Clearblue Advanced Digital Pregnancy Test with Weeks Estimator in 2013, and since then has represented that the Weeks Estimator is capable of estimating how many weeks a woman has been pregnant.
However, the suit states, the Weeks Estimator is not effective for that purpose, SPD has acknowledged it should not be used for that purpose, and the Food and Drug Administration directed that it should not be marketed for that purpose.
By measuring the concentration of a hormone in urine, SPD claims the Weeks Estimator can approximate the possible range of weeks that may have passed since a woman ovulated.
The FDA has emphasized there is a material difference between how many weeks have passed since a woman last ovulated and how many weeks a woman has been pregnant, so it expressly prohibited the Weeks Estimator from being marketed as a means for estimating the length of pregnancy.
Still, the suit states, SPD began a campaign to perpetuate the false claim that the Weeks Estimator can approximate how long a woman has been pregnant, including this claim on the product's box labeling, on a widely broadcast TV commercial, on Internet advertising and at point-of-sale purchase and other retail-level advertising.
As a result, Olvera and others in the class paid a tangible increased cost for the Weeks Estimator, which was worth less than represented because it could not really estimate how long a woman has been pregnant, the suit claims.
Olvera and others in the class seek compensatory, statutory and punitive damages, interests, restitution and other equitable monetary relief, attorney fees and costs of the suit. They are represented by attorneys L. Timothy Fisher, Julia A. Luster and Scott A. Bursor of Bursor & Fisher in Walnut Creek, California and New York City.
U.S. District Court for the Central District of California Case number 8:15-CV-02035