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It used to be that family legends about background and heritage had to stay legendary. But the popularity of genetic test kits have made them a hot topic around the Thanksgiving table. A proposed FTC and California settlement with CRI Genetics reminds companies in this burgeoning sector that their claims are covered by established federal and state truth-in advertising standards. What’s more, the case reinforces key principles relevant to any advertiser about product reviews and the allegedly deceptive use of digital dark patterns.

California-based CRI Genetics promotes its DNA test kits with claims about their ability to provide consumers with information about their genetic ancestry and potential health traits and conditions. The company touted its “advanced team of Geneticists, Anthropologists, and Social Scientists, who work together to deliver you the most accurate estimation of your ancestry possible.” CRI Genetics further highlighted the purported accuracy of its results with advertising promises like this:

• “The latest genetic reading equipment, our patented DNA analysis software, along with our experience and techniques allow us to achieve accuracy greater than 99.9%.”
• “Know exactly where your DNA comes from with 90%+ accuracy . . .”
• “Our Advanced Ancestry Timeline takes you back 50+ generations, to find out exactly WHEN and WHERE your ancestors are from.”

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But according to the FTC and California, the company’s claims that it offers the most accurate and detailed DNA ancestry tests and reports on the market, that it can show consumers’ ancestry breakdown with an accuracy rate of over 90%, and that it can tell consumers exactly where their ancestors came from going back more than 50 generations were false or misleading. The complaint also alleges the company falsely claimed to have patented an algorithm for its genetic matching process. What about the glowing consumer testimonials that CRI Genetics included on its website and in social media? According to the complaint, some of them “were completely fabricated.”

The FTC and California say CRI’s deception didn’t end there. From 2017 to February 2021, the company bought search ads from Google and Bing for terms like “DNA testing,” “genetic testing,” “Ancestry DNA,” or “23andMe.” Consumers who clicked on those links were taken to a website with the name “Genetics Digest.” The site represented that it was an independent source of information for DNA testing, offering “unbiased product reviews for consumers looking to purchase anything related to the field of genetics.” In evaluating kits on the market, Genetics Digest’s “#1 Top DNA Test” was CRI Genetics, which purportedly received a star rating of 4.9 out of 5 – substantially higher than its competitors, who were mentioned by name on the Genetics Digest website. What the FTC and California say wasn’t clearly disclosed to consumers was that the site – which supposedly offered “independent reviews and evaluations” – was actually owned and operated by CRI Genetics.

The complaint makes similar allegations about a website called buyerranking.com. Claiming that its “mission” is to “empower” consumers with “confidence” to get “the best bang for your buck,” the site named CRI Genetics “Top Recommended DNA Testing Service” – without clearly disclosing that CRI Genetics owned that site, too.

Even if consumers wanted to buy a product from CRI Genetics, the company allegedly forced them to navigate a tangle of pop-ups and add-ons – characterized as “Special Rewards” the consumer had been “chosen” to receive – all designed to squeeze more cash out of prospective purchasers. What about just clicking the back button to escape CRI’s marketing maze? The defendant warned consumers not to do that: “ Please do not hit the back button as you cannot get back to this page once you leave.” If consumers initially chose an offer but changed their mind, the defendant warned them “not [to] hit the ‘Back’ button as it can lead to a multiple charge on your card.” You’ll want to read the complaint for more exhausting specifics, but it boils down to the allegation that the company “used numerous deceptive marketing techniques, known as ‘dark patterns,’ to push consumers into purchasing additional products and services.”

After learning about the FTC’s investigation, the defendant revised portions of its ordering process, but consumers still had to input their personal and payment information before going through CRI’s marketing gauntlet. As the complaint alleges, “The website ordering page still did not disclose that when consumers entered their payment information that they would be charged immediately for each item selected for purchase and that each order would be final.”

The complaint charges CRI with multiple violations of the FTC Act and with “untrue or misleading advertising” and “unlawful, unfair, and/or fraudulent business practices” under California law. The proposed order will prohibit a wide variety of misrepresentations and omissions and require the company to disclose to consumers the total costs they will be charged, when charges will occur, and whether they will be able to confirm, edit, or delete products and services before being charged. Under the terms of the proposed settlement, CRI also must clearly tell consumers the purposes for which the company will use or share their DNA information and get their affirmative express consent. In addition, the defendant must require direct notification to consumers about the FTC’s and California’s allegations and delete information collected from customers who received refunds if they request it. The settlement with California includes a $700,000 civil penalty.

What can other companies take from the action in this case?

Established truth-in-advertising standards apply to home genetics testing companies lock, stock, and double helix. Your market sector may be new, but you’re still responsible for complying with well-settled consumer protection principles. That includes having appropriate substantiation to support all objective claims, including representations that your product is superior to its competitors. This isn’t the first case challenging the practices of genetic testing companies, so know that law enforcement eyes are on you.

Disguised selfie sites and testi-phony-als are flat-out illegal. Decades of FTC and state cases clearly establish that bogus review sites and made-up endorsements violate the law. Full stop. The FTC’s Endorsements, Influencers, and Reviews site features resources that explain the fundamentals in to-the-point language. 

Don’t force consumers through a “grabby-rinth” of pop-ups and add-ons in an illegal effort to charge them more without their consent. Too many companies complicate the purchase process with a maze of confusing offers designed to squeeze more money out of customers. The FTC, California agencies, and other law enforcers have expressed their commitment to shutting down deceptive dark patterns.  Heed those warnings.

The FTC also has a general reminder for all companies, especially those in the growing genetics testing field. As the FTC’s Policy Statement on Biometric Information makes clear, collecting sensitive biometric data comes with enhanced obligations. Clearly explain how you intend to use or retain sensitive biometric information before collecting it from consumers. Failure to honor that obligation may result in a requirement to destroy or delete data and roll back algorithms trained on the information.