UK competition authority tells fertility clinics to follow consumer protection rules

Out-Law News | 15 Jun 2021 | 9:40 am | 2 min. read

The UK’s Competition and Markets Authority (CMA) has issued guidance to fertility clinics to address consumer protection concerns including unclear pricing and misleading success rates.

The CMA has warned IVF clinics if they fail to follow consumer protection rules they risk enforcement action, including civil injunctions or criminal proceedings.

Clinics are expected to review their terms and practices and, if necessary, make changes to ensure they are following the law.

The CMA said a fall in NHS-funded IVF treatment meant more patients were self-funding fertility treatment, and as a result consumer law would apply to an increasing proportion of patients.

The guidance sets out clinics’ obligations under consumer rights law, including a requirement to provide key information upfront to patients and to ensure that contracts with patients are fair. It tells clinics what information they should provide and what contractual terms should be used to protect patients.

Clinics should avoid misleading advertising, for example headline pricing that does not include essential elements of treatment, or providing partial or misleading information on success rates.

The CMA has also included information for clinics on ensuring that complaints handling processes are fair. Clinics should have a written complaints procedure that is easy to find and use, and which is applied consistently across clinics where there is more than one in a chain.

Healthcare and consumer law expert Richard Snape of Pinsent Masons, the law firm behind Out-Law, said the guidance built on the CMA’s commitment to put vulnerable consumers at the heart of its enforcement activity.

“The CMA has noted the specific pressures IVF customers are under to highlight the importance of ensuring that they are properly informed of the benefits and costs of treatment. The CMA has identified a number of potential areas where providers could be infringing consumer protection laws including misleading advertising, binding consumers to unfair terms and otherwise including hidden charges,” Snape said.

The CMA said it would conduct a compliance review in December 2021, and Snape said it would be prudent for all providers to consider their terms in light of the guidance before then.

The CMA worked with the Human Fertilisation and Embryology Authority and the Advertising Standards Authority (ASA) to produce and publish the guidance, and the ASA has published an enforcement notice addressing the proper advertising of prices and success rates as well as confirming in a joint letter with the CMA it will also conduct a compliance review in December.

“This joint regulatory approach mirrors the CMA’s work with other regulators – such as its work with the privacy work with the Information Commissioners Office or consumer protection work with the Gambling Commission – to ensure a co-ordinated and consistent approach to consumer protection enforcement,” Snape said.

Consumer and competition law expert Angelique Bret of Pinsent Masons said clinics should take enforcement warnings seriously.

“The risk is that if the CMA is not satisfied following its compliance review at the end of the year, it could take enforcement action against certain operators. In these circumstances, the operators would be required to make formal undertakings to make changes to their terms and possibly also to provide compensation to certain consumers, or face a court order,” Bret said.

“For example, the CMA recently raised similar issues in its consumer protection investigation of the care homes sector, and has taken enforcement action against a number of care homes providers where the CMA considered that they were infringing the consumer protection rules,” Bret said.