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Trial starts over baby-gender test for moms-to-be

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Marketed as a “fun experience” for any expectant mother who can’t wait to know the sex of her unborn child, the IntelliGender prediction test has been sold online and in drugstores to more than a million customers worldwide.

The kit, packaged in a blue and pink box, purportedly allows a pregnant woman to know whether she’s carrying a boy or a girl months earlier than a sonogram could — at an affordable price and within the comforts of home.

A local lawsuit, however, suggests that the product isn’t all it cracked up to be. According to the San Diego City Attorney’s Office, the kits not only don’t work, they’re dangerous.

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“It is nothing more than Drano in a pretty box,” Deputy City Attorney Kristine Lorenz told a judge on the first day of a trial involving the owners of the company that sells the gender prediction tests.

The city, which in this case represents the people of the state of California, contends that the product contains sodium hydroxide — also known a lye — and aluminum, which when mixed in a small container with the mother-to-be’s urine, can cause a mini-explosion that in some cases has left customers with chemical burns and other injuries.

A lawyer for the defendants, however, said the managers of Texas-based IntelliGender LLC marketed their product based on “reasonable” information as to how well it predicted gender soon after the company was launched a decade ago, and they continued to make improvements and labeling changes to the product long before any lawsuits were filed.

“This is no different than a battery, your honor,” attorney John Palter said in his opening statement, explaining that the kits are designed in a way that the chemicals are contained in an airtight device, a bottle with a sealed cap.

Of the 1 million kits that have sold since 2006, Palter said, only 187 reportedly had problems in which the cap came off.

“We do not dispute that some customers have had the cap fall off, all of which are taken seriously,” he said.

The city originally filed its lawsuit in 2012 against IntelliGender LLC and its managers: Teresa Garland, and Rebecca Griffin, both described as the “moms of Intelligender,” Don Garland, Kurt Griffin, and other defendants, including several retailers.

The case is being heard by San Diego Superior Court Judge Joel Wohlfeil, who will decide the case instead of a jury.

Attorneys with the city of San Diego contend in court documents that the defendants violated state consumer protections as well as health and safety laws by manufacturing, selling and marketing directly to pregnant consumers a “corrosive and highly volatile” product. They also falsely promised that the product was both safe and accurate.

The city is seeking $10 million in civil penalties on behalf of California residents and a injunction that would bar the defendants from marketing the kits using the words such as “gender predictor,” “gender detection” or “accuracy.”

The city also wants the defendants to refund money to all California consumers who have purchased the product.

Lorenz, the deputy city attorney, said in her opening statement Monday that despite the defendants’ claims that the gender prediction kits were “based on science,” there is no credible evidence that the IntelliGender test is a better predictor than pure chance. According to the defendants’ own tests, Lorenz said, the product was accurate in predicting gender 64 percent of the time at best.

“The evidence will show that this is a product that predicts gender no more accurately than a flip of a coin,” she told the judge.

The city contends that the defendants made “millions,” but did not disclose a specific amount in court on Monday. Portions of some court filings available for viewing at the courthouse are redacted, so it is not clear specifically how much profit the defendants are alleged to have made through sales of the gender prediction kits.

Palter, the defendants’ lawyer, said Monday that IntelliGender has never hidden the fact that the product is not 100 percent accurate — neither is a sonogram — and he said the company provides information about negative results on its website. He said IntelliGender recently changed its labels to include a warning that sodium hydroxide is a poison.

Attorneys for the city began presenting witnesses in the bench trial Monday morning.

The trial is expected to last a month.

dana.littlefield@sduniontribune.com

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