Five individuals filed suit on Monday in the Northern District of California against defendant Abbott Laboratories, Alere, Procter & Gamble Manufacturing Company, SPD Swiss Precision Diagnostics GMBH, Church & Dwight Co. Inc., Target Corporation, and Walgreen Co.
The class action complaint alleges that the defendants have intentionally misrepresented their ovulation test kit products as ovulation trackers in an attempt to deceive consumers and reap profits.
The complaint explains that millions of individuals buy and rely on the ovulation test kits sold by the defendants for family planning purposes. The defendants advertise the ovulation test kits as “being able to tell women with 99% or greater accuracy when they will ovulate, and thus when they are the most fertile and most likely to be able to become pregnant.”
Despite the defendant’s methods of advertising, the complaint contends that the aforementioned ovulation test kits test levels of luteinizing hormone (LH) rather than ovulation, even though the two are not always correlated. LH levels often do rise when a woman is ovulating, but the complaint specifies that “LH levels can spike at varying times in the menstrual cycle for a variety of other reasons unrelated to ovulation.”
The plaintiffs argue that the defendants intentionally misrepresent their products as ovulation test kits when, in actuality, they are LH test kits. They claim that the defendants do not advertise their products as such because they are aware that they would be less attractive to women seeking to become pregnant. The complaint concludes that the defendants’ misconduct allows them to “capitalize on reproductive anxiety and reap massive profits, well in excess of $5,000,000 each year from unwitting consumers.”
The complaint cites claims for violations of the California Consumer Legal Remedies Act, the California Unfair Competition Law and the California False Advertising Law. The plaintiffs are seeking class certification, favorable judgment on each count, injunctive relief, restitution, compensatory, exemplary, and statutory damages, pre- and post-judgment interest, litigation fees, a trial by jury, and any other relief deemed proper by the court.
The plaintiffs are represented in the litigation by Umberg Zipser LLP and Glancy Prongay & Murray LLP.