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June 04, 2020

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NAD Recommends Improvement of Baby Monitor Performance Disclosures

Owlet Baby Care, Inc. advertised its “Smart Sock” baby monitor with prominent claims that the monitor offers parents “peace of mind,” and promises that babies will “be ok.” The ad message is qualified by disclaimers that the monitors are not medical devices and cannot be used to prevent or treat health conditions. The National Advertising Division (part of the Council of the Better Business Bureau), however, recently declared these disclaimers insufficient. The NAD was concerned that the advertising could be interpreted as saying the monitor could prevent SIDS or other illnesses.

The “Smart Sock” is a monitor device that sends alerts when the baby’s oxygen levels and heart rate deviate from predefined levels. After reviewing confidential data and other information submitted by Owlet during the investigation, the NAD concluded that Owlet’s claims that the Smart Sock provides accurate oxygen and heart rate readings were appropriately substantiated.

However, the NAD’s other concern was that Owlet’s disclosures as to other features of the Smart Sock were hard to find, and full of dense technical language.

The NAD advised Owlet that material disclosures (such as those concerning performance, features, safety and effectiveness of a product) must be clear and conspicuous in the advertising message. Specifically, the NAD advised that the Smart Sock disclosures should make clear that the monitor only gathers information, and is merely a tool for making decisions regarding the baby’s healthcare. The NAD determined that consumers could reasonably imply that use of the Smart Sock could prevent SIDS and save a baby’s life. The NAD wanted more clear and conspicuous disclosures to help parents understand the important limits of the monitor’s features and performance, which may not otherwise be clear from Owlet’s primary advertising claims.

Putting it Into Practice: Advertisers could face liability for publishing potentially misleading claims that should be clarified through material disclosures. Accordingly, a reliable advertising legal review process should be standard operating procedure for brands and their ad agencies.

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.


About this Author

Robert E. Hough II Intellectual Property Lawyer Sheppard Mullin Law Firm

Robert Hough is an associate in the Intellectual Property Practice Group in the firm’s Dallas office.

Areas of Practice

Robert represents clients in litigation to secure, enforce, and leverage their valuable intellectual property rights. He counsels clients in matters related to copyright, trademark, trade dress, trade secret, advertising, publicity, and entertainment law. He regularly leads clients through trademark enforcement proceedings under the Uniform Domain Name Dispute Resolution Policy (UDRP) before the World Intellectual Property Organization (WIPO...

 Sarah S. Williamson Sheppard Mullin Associate Dallas Intellectual Property Copyrights False Advertising, Lanham Act and Unfair Competition IP Licensing, Technology and Commercial Transactions Patent Litigation Trademark Applications and Prosecution Trademarks and Trade Dress

Sarah Williamson is an associate in the Intellectual Property Practice Group in the firm's Dallas office.

Areas of Practice

Sarah has experience in various aspects of litigation involving patent, trademark, copyright, and contract disputes. This experience includes all states of patent litigation, including pre-trial motions practice and Markman hearings. She also has experience in various other areas, including patent and trademark prosecution, domain name disputes, copyright registration, intellectual property licensing, IP-related due diligence considerations, and contests, sweepstakes, and online promotions.

Prior to joining the firm, Sarah worked in research and development for a chemical company specializing in biologicals, water treatment, and industrial chemicals, and for a highly specialized middle market private equity firm focused on the energy industry.