Published 15 June 2021
An ‘enforcement notice’ has been sent to all UK fertility clinics setting out details of how they should promote their services and ensure compliance with advertising and competition codes of practice. A problem for other jurisdictions?
After more than three decades of cloudy oversight, clinics in the UK’s fertility sector have been given emphatic guidance on how they should advertise their services and ensure compliance with the codes of two regulatory authorities, as well as that of the HFEA. One of those groups, the Advertising Standards Authority, set out its guidance in a somewhat belligerent ‘enforcement notice’.(1)
The overall objective of the guidance, as agreed by all three groups, is to ensure that ‘fertility clinics are treating their patients fairly’ and that clinics are compliant with the UK’s advertising code. The guidance thus sets out five key requirements:
* Ensure transparency when presenting success statistics. Thus, do not mislead by omission, selective emphasis, sub-group analysis, and unidentifiable comparators.
* Be clear what is meant – as in terminology and metrics. The HFEA’s preferred measure of success, says the guidance, is ‘live birth rate per embryo transferred’.
* Manage cost expectations in an intelligible way, thus setting out clearly what all stated charges include.
* Be transparent about adjunct treatments - an ongoing story in the UK (and elsewhere) of poor evidence and snake-oil promotion.
* Beware of complementary therapies and any poorly supported claims.
Behind the guidance lies the first rule of the Competition & Markets Authority code of practice that ‘marketing communications must not materially mislead or be likely to do so’. For its part, the HFEA said it had ‘long been concerned about how some clinics offer their services’, but a lack of regulatory power has prevented intervention in ‘the commercial aspects of the modern fertility market’. The latest HFEA publication on treatment trends in the UK (for 2019) indicated that around 60% of all treatments are now carried out in the private sector, where promotion is heavily concentrated on websites.
The new guidance is strictly UK-only, but it’s clear that many of the dubious practices are evident elsewhere, usually in the patient-funded sector. A survey just published found ‘a very high prevalence of IVF add-on use in Australia, which may be generalisable to other settings with similar models of IVF provision’.(2) An analysis of the websites of the UK’s ‘top 15’ clinics offering elective oocyte freezing found that ‘most clinics are not sufficiently clear and transparent about the “true” cost of an [elective egg freezing] cycle, present an unbalanced view, and do not provide satisfactory data or information’.(3) Many of the clinics appeared – misleadingly - to present elective egg freezing as a gesture of self-control, a grasp for ‘empowerment’, usually illustrated by idealised photos from picture libraries.
But back in the real world UK clinics now appear to face legal sanctions if their promotions fail to meet the new guidance. ‘Enforcement’ action could apparently be applied if they are unclear about their success rates or if they fail to make their cost schedules clear. Under the watchful eye of the Advertising Standards Authority, clinics now have a legal obligation to treat the public fairly and to help their patients understand their consumer rights.
1. See https://www.asa.org.uk/resource/enforcement-notice-fertility-treatments.html
2. Lensen S, Hammarberg K, Polyakov A, et al. How common is add-on use and how do patients decide whether to use them? A national survey of IVF patients. Hum Reprod 2021;
3. Gurtin ZB, Tiemann E. The marketing of elective egg freezing: A content, cost and quality analysis of UK fertility clinic websites. Reprod Biomed Online 2021; 12: 56-68. doi.org/10.1016/j.rbms.2020.10.004
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