Consumer Law

Sugar and spice and everything false

By Rebecca Tushnet

The LA Times reports that DNA tests marketed for sex identification of fetuses in early pregnancy are being promoted with unsubstantiated claims: ?The Federal Trade Commission, which protects consumers from false and misleading advertising, has warned buyers to be skeptical of at-home genetic tests, which are now unregulated.? But from the story?s reporting, the FTC has reason to do more than warn. More than 100 women have sued one company, Acu-Gen. ?Acu-Gen's website lists dozens of clinical studies that it says corroborate its approach, though none of them involved the specific DNA sequence that Acu-Gen says it uses in Baby Gender Mentor and none reported accuracy as high as 99.9%.?

The companies may be relying both on probability ? as one disappointed father says, you could flip a coin and refund the money every time you were wrong and still make money on a sex identification test ? and on parents? feelings of guilt in the case of a wrong prediction. It?s hard enough for people to admit they?ve been duped by scientific flimflam. Revisiting a desire for a child of a different sex may be especially psychologically difficult when an actual child is already present. These are exactly the vulnerable consumers that government regulators are best suited to protect ? especially given that competitors have little incentive to question the scientific basis of their shared industry. In the consumer/competitor/regulator triangle, the regulator here is the obvious choice to rein in invalid claims.

Of course, that people who use the tests may be considering sex selective abortions adds a significant wrinkle: regulating for false advertising, rather than banning the practice entirely, may be part of the cultural acceptance of the desire to actively select a child?s sex, as this Slate piece suggests.

Full post as published by 43(B)log on February 26, 2008 (boomark / email).