If you're in the wearable technology business, this case is a must-read. In fact, if you're advertising any health or wellness products, don't miss this recent case from NAD. The Decision underscores the importance of making clear exactly what your product can (and cannot) do and of not overstating its benefits, particularly if those benefits are safety-related.
In this case, initiated as part of its routine monitoring program, NAD reviewed advertising for the Smart Sock Baby Monitor, sold by Owlet Baby Care. The product is a wearable baby monitor that alerts parents when their babies’ oxygen levels and heart rates depart from preset levels while the babies are asleep.
At issue was whether the advertiser accurately conveyed to consumers that the product is an information gathering device only, without overstating the extent to which the device can actually prevent adverse medical events, like Sudden Infant Death Syndrome (SIDS). The advertiser did not present consumer perception data as to the consumer takeaway from the advertising, so "NAD stepped into the role of the consumer to determine what reasonable messages were conveyed by the net impression of the advertising," as it always does.
Based on the technical information provided by the advertiser, NAD was satisfied that the Owlet Smart Sock does in fact accurately measure oxygen levels. However, NAD found that one message reasonably conveyed by Owlet's advertising is that babies will “be okay” and thus allow parents to achieve “peace of mind” because of the Smart Sock's capabilities. NAD determined that such claims reasonably imply that use of the Owlet can prevent SIDS to save a baby’s life.
Thus, NAD recommended that the advertiser limit the scope of its claims by clearly and conspicuously disclosing the information-gathering nature of the device, in close proximity to the claims, which NAD determined the advertiser had not adequately done. Specifically, NAD recommended that Owlet modify the disclosure to "(1) limit use of the Smart Sock for information purposes only as it does not prevent SIDS (including a warning to follow pediatrician-recommended sleep guidance); (2) limit use of the Smart Sock to healthy babies as it does not replace a medical monitor; and (3) eliminate assurances in the disclosure that the product provides peace of mind." NAD also recommended that the advertiser move the disclosures from the FAQs to the product purchasing page, in close proximity to the claims, and make them "easy to notice, read and understand."
Notwithstanding its concern with the advertiser's own claims, NAD was untroubled by the parent testimonials used by Owlet in the ads. NAD noted that the testimonials made clear that parents used the information generated by the device to make a decision to seek medical care. Therefore, they were not misleading, and didn't overstate the capabilities of the Smart Sock.