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.  We learned a lot in the process of working on it, some of which I will share here, to underscore the importance of this challenge and NAD’s Decision. 

First, nearly half of all pregnancies in the United States every year are unintended.  A variety of
circumstances contribute to this high rate of unintended pregnancy – a rate that is significantly higher than in other developed countries – including limited access to contraceptives, contraceptive failure, lack of education and information, rape and more.  

Second, over a third of unintended pregnancies in the U.S. end in abortion. For some, this may
represent a tragic fact, but it is a fact nonetheless. Indeed, since the Supreme Court overturned Roe v. Wade in the Dobbs decision, reversing five decades of established abortion rights, abortion rates have remained high. The impact of Dobbs, however, has been immeasurable, with thousands of patients, many of whom are seeking care later in pregnancy at increased health risk to themselves, forced to travel – sometimes great distances – to obtain a legal abortion. Indeed, interstate travel for abortion has doubled since 2020, with one in five patients now traveling for abortion care.

Against this backdrop, the “crisis pregnancy center” industry (“CPC”) is flourishing, with several states even providing funding for CPC operations. While some organizations seek to prevent unintended pregnancies (and, therefore, abortion) by providing education, access to contraception, healthcare funding and more, others seek to simply lower the rate of abortion by denying women the freedom to choose it and, mislead and deceive women about abortion as an available option. The problem, of course, is that many women facing an unintended pregnancy are in crisis. They may be very young, or very poor, or a single parent with other children to care for. They may be a rape victim. Even women who are not dealing with such challenges are likely to be urgently seeking information with little time to spare when facing an unintended pregnancy.

Women facing an unintended pregnancy need accurate and truthful information about all of their options, particularly the option that many will seek, and may have already decided that they want, and they need that information quickly because, in the context of abortion, access delayed is access denied. 

It must be up to women themselves to decide whether they want reproductive health
information from an organization dedicated to preventing abortion. Some women may indeed
want that, and if they do, they can speak with such an organization. But no one should be tricked into talking to such organization, believing that they will be getting accurate and complete
healthcare information if they will not.