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March 18, 2025

Kramer Levin Obtains Second Circuit Affirmance of Dismissal with Prejudice in Putative Consumer Class Action Against Clearblue Ovulation Test Kits

On March 18, 2025, the Second Circuit affirmed a district court’s order dismissing a putative class action complaint challenging the advertising of nearly the entire market of at-home ovulation test kits, including our client, SPD Swiss Precision Diagnostics, maker of the Clearblue brand. The Second Circuit agreed with our arguments that no reasonable consumer can be misled to believe that the kits test for ovulation with 99% accuracy, because “there is nothing affirmatively inaccurate on the front label . . . that states the at-home tests detect for actual ovulation” and the sides and back labels “are clear that the products detect surges in the LH hormone, a strong predictor of ovulation, not ovulation itself.” The panel also agreed that the district court did not err in denying plaintiffs leave to replead, and affirmed dismissal with prejudice.

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