UK CMA seeks to assess compliance with consumer law guidance for fertility clinics

On 10 March 2022, the UK Competition and Markets Authority (CMA) issued a questionnaire in the context of its ongoing compliance review of awareness, understanding and compliance with its Guidance for Fertility Clinics on Consumer Law (the Guidance). The questionnaire is directed at clinicians, embryologists and nurses working in the fertility clinics sector.

IVF clinics have been under the CMA’s spotlight since it announced its review into the sector in February 2020. Following the declining trend of NHS-funded IVF treatments in England, the CMA was concerned to ensure compliance with consumer law within the burgeoning self-funded fertility sector.

Following the consultation process, the Guidance was published in June 2021 and focusses on:

• provision of information which patients require when comparing clinics and treatments;
• preventing the misleading of consumers (around price and effectiveness of treatment);
• preventing mis-selling (eg add-ons / optional extras); and
• fairness of terms and conditions.

Concurrently with the publication of the Guidance, the CMA, Advertising Standards Agency and Human Fertilisation and Embryology Authority jointly wrote to fertility clinics to make them aware of the Guidance and to set expectations for compliance. 

When the CMA published the Guidance, Louise Strong, Consumer Director at the CMA, previewed a future compliance review, noting that: “[i]n six months, we will be reviewing compliance in the sector and we will be ready to take enforcement action if businesses are breaking the law." That compliance review began in December 2021 and is ongoing.

It is in that context that the CMA has now asked those active in the IVF industry to give their views on how far the Guidance has been followed. It intends to use the results of the questionnaire and the wider compliance review to inform enforcement decisions within the fertility sector for non-compliance.

The questionnaire is open for responses until 6 April 2022 and focuses on the following key areas:

• general awareness and understanding of the Guidance;
• whether there are aspects of the Guidance that could benefit from further clarification; and
• whether the CMA can do more to raise awareness of the consumer law impacting this area.

The CMA also invites feedback from the public and those with experience of the types of issues covered in the patient guide and video when buying fertility treatments.

The CMA has not set a deadline for publishing the findings of the questionnaire or wider compliance review.