CMA to publish guidance for IVF sector on consumer law obligations

• United Kingdom

• Competition, EU and Trade
• Health and life sciences

05-03-2020

On 7 February 2020 the Competition and Markets Authority (“CMA”) launched a review into the IVF sector. The review stems from concerns that IVF clinics may not be compliant with UK consumer law on the basis that they are not aware of their legal obligations.

Following its review, the CMA intend to release draft guidance for consultation in July 2020, with a view to issuing the updated guidance later in the year.

The CMA will work closely with the Human Fertilisation and Embryology Authority (“HFEA”), the IVF sector regulator, and relevant stakeholders when undertaking its review and will focus on a range of issues to increase the transparency and accuracy of information provided to patients. The intention is for the guidance to cover such issues as:

• price transparency - treatment prices should be clear and clinics must be upfront about costs;
• potential mis-selling - clinics should not mis-sell “add-on” treatments which can cost up to £2,500 extra per cycle;
• success rates – patients must not be misled about the likely success of treatments and should use accurate and up to date figures in advertising and on their websites; and
• unfair terms – terms and conditions must be fair and transparent.

Whilst at this stage the CMA has not reached a view as to whether or not consumer protection law may have been broken, it has suggested that enforcement action could be taken if it considers that breaches have occurred.

Concerns have also been raised by the Advertising Standards Authority (“ASA”) as to whether IVF clinics are aware of advertising restrictions. The content of adverts, promotional material and direct marketing cannot be misleading, harmful or offensive. The ASA have confirmed that it will consider all options including the use of an Enforcement Notice to put the sector on notice about the need to comply with relevant advertising rules.

It is clear that the UK IVF sector is coming under increased scrutiny around consumer law compliance at a time where the demand for their services is ever increasing.  The concerns around misleading  customers is not new, with the BBC Panorama programme putting a spotlight on the sector back in 2016, but the announcement by the CMA suggests that sector specific guidance will shortly be available.