Judge Blocks Marketing of Gender-Prediction Test

SAN DIEGO (CN) – A California state judge ordered a Texas-based company to stop marketing its dangerous, exploding gender-prediction tests as safe, “based off science” or made in an FDA-certified facility.

San Diego Superior Court Judge Joel Wohlfeil also ordered Intelligender to pay $250,000 to California for false advertising and violating hazardous substance laws.

The San Diego City Attorney’s Office sued Intelligender in 2012, and sought a $5 million civil penalty.

On Monday, Wohlfeil found Intelligender’s claim that its gender prediction test could be “safely” conducted at home false and misleading and that the test was not fit for use as a family planning test, for which some women used it.

Wohlfeil oversaw a lengthy bench trial last summer, featuring video testimony from women who used the test and were burned when it exploded on them.

Christine Brenneis said in her videotaped deposition that the scars on her face would “probably be there for the rest of my life.”

Brenneis said she thought taking the gender prediction test when she was carrying her fourth child would “be something fun to do.”

The test exploded, splattering chemicals on her face, the ceiling and wall.

Lye was the volatile corrosive chemical that caused the explosions. The tests had no warnings about the chemicals, and, unlike pregnancy tests, are not regulated by the FDA, according to the City Attorney’s Office.

San Diego City Attorney Mara Elliot said the case “exposed the dark side of entrepreneurism,” and that the false claims that the tests were accurate and based on science “were made to prey on pregnant women.”

According to court documents, Intelligender advertised the test was more than 90 percent accurate in lab tests and 82 percent accurate in the “real world.”

In his permanent injunction order, Wohlfeil found Intelligender’s acknowledgement of even a “modest number of explosions” was inconsistent with its advertising that expectant mothers could take the test safely in their own homes.

“An explosion, which caused even negligible injuries, is not a risk that consumers reasonably expected or assumed in taking defendant’s Gender Prediction Test,” Wohlfeil wrote.

The judge noted that Intelligender spent a significantly larger budget on marketing the tests than it did on researching and developing them. When it received complaints from women who said the test exploded or didn’t work, Intelligender changed its public statements on the test’s accuracy, which Wohlfeil saw as an admission the tests were inaccurate.

“The court further recognizes that, over time, defendants have modified, if not deleted, these representations from their marketing of the GPT [Gender Prediction Test]. Defendants’ marketing adjustments are, from the court’s perspective, both an acknowledgement by defendants that the representations lack merit and a factor in mitigation the court may consider in evaluating the remedies sought by plaintiff,” Wohlfeil wrote.

“Defendants made the representations recklessly and without regard for their truth.”

The City Attorney’s Office also has sued retailers who sold the gender prediction tests in San Diego, including CVS Pharmacy, Rite Aid, Target, Toys R Us and Walgreens.

A trial for the retail defendants is scheduled for October. But a city attorney’s spokesman said the city has settled with Toys R Us subsidiary Babies R Us – where the tests were sold – and is in settlement talks with Amazon. The city has also settled with the test manufacturer Swiss-American Products.

The city will also be awarded costs related to litigating the case, in addition to the $250,000 civil penalty.

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