BackgroundFour complaints were originally investigated. Three were informally resolved. We decided to adjudicate the remaining point, in large part in the interest of setting a precedent for advertisers in this sector but acknowledge that ARGC voluntarily took the necessary action to change their ad during the course of the investigation.
The website www.argc.co.uk for a fertility treatment clinic, visited in June and again in December 2011, presented a table on the “STATISTICS” page headed “Latest results for London clinics as published by HFEA in February 2011”. The table compared a number of different clinics and healthcare authorities that provided fertility treatment by success rate.
Create Health Ltd (Create), a competitor clinic of the Assisted Reproduction and Gynaecology Centre (ARGC), challenged whether the table was misleading because it omitted material information about the way that clinical pregnancy rates were calculated by the Human Fertilisation & Embryo Authority (HFEA). They understood that a number of factors could affect the success rate of a clinic or treatment, and that the HFEA explained that clearly on its own website.
ARGC stated that it was an IVF clinic licensed by the industry regulator (the HFEA). They said the table on their website reproduced data published by the HFEA and was not therefore an ad for the purposes of the Code.
Notwithstanding their assertion that the Code did not apply to their table, they said it was important to take account of the context in which the table appeared. They said the data was derived from a publicly available source (the HFEA website) and that the table had been on their website since early 2010 without attracting a complaint from any individual or regulatory body. They said their experience was that the majority of people considering IVF gathered a significant amount of information from a variety of sources before commencing treatment, because treatments could be complex and expensive. They said the most notable resource was the website maintained by the HFEA, which published considerable detail about the clinics it licensed, the services those clinics provided, the success rates of each clinic and the factors associated with the success rates in general. They believed that prospective patients were keen to see the comparative success rate data and they pointed out that they were not the only clinic to publish data in that way.
They stated that the HFEA had a statutory duty to collect and publish success rate data and that all clinics were obliged by law to submit the data to them. They said the HFEA published the data under the heading “Choose a fertility clinic, Compare and contrast fertility clinics based on your needs” and that it was readily apparent from that title that it was intended to allow patients to compare clinics so as to better inform their choices. They reiterated that the data published on their website regarding London clinics’ success rates was taken directly from data published by the HFEA (as the table made clear) and was not edited or amended in any way.
They said all they had done was to make it more accessible and that they had used the same terminology and nomenclature adopted by the HFEA.
They said comparative success rate tables were used in other areas, such as school exam results and hospital mortality rates, and that the HFEA had until 2009 published clinics’ live birth rate statistics in a way that made it easy for patients to compare between clinics. They explained that, following the HFEA’s decision to change the way it displayed clinic success rate data, patients had reported finding it difficult to compare results between clinics and that it had been their intention to address this problem. They said the table assisted patients in having easy access to the same data already published on the HFEA website but that it was not intended to provide a comprehensive analysis of that data.
They said those who visited the website must have known enough about the clinic to search for it directly or have been linked there from another site, most likely the HFEA website or an infertility treatment forum. They said they would therefore have some familiarity with the issues surrounding IVF, including success rates. They said, in order to understand the table, readers would either already be familiar with success rates or would need to become familiar with them. Because the HFEA was referred to as the source of the data, they believed the HFEA website was the obvious place for readers of the table to look for more information. They said they were prepared to add a link to the page of the HFEA website titled “Understand fertility clinic success rates” to ensure prospective patients had access to all of the information they needed, and that link was added to their site in April 2012.
They said the impression given by the table was simply that the named clinics had the success rates listed, which was correct. They said it did not invite patients to choose ARGC because of its success rates and that it was not a “league table”, because the clinics were listed alphabetically. They accepted that it might not be meaningful to compare success rates in some circumstances, for example, because the number of treatments performed by the clinics compared or the difference between the clinics’ success rates was too small, but that in the majority of cases comparisons were meaningful. They said the table compared clinics from the same geographical location (London) that had treated a sufficient number of patients in each age category to provide reliable data. They also said results were reported to the HFEA as either “stimulated” or “natural” and that the table only included the results of stimulated IVF cycles. They referred to the guideline produced by NICE entitled “Fertility: assessment and treatment for people with fertility problems” which they said demonstrated that there were no significant differences between stimulated IVF cycles that used different dosages of stimulation drugs. They said there was no evidence that any of the clinics treated materially different patient groups and that there was no significant difference between their embryo transfer rates and those of the other clinics in the table. They believed the table had therefore taken account of all relevant factors that impacted on success rates.
They said they were required by the HFEA to provide prospective patients with a comparison of their success rates with the national average before beginning treatment, which they believed demonstrated that it was not meaningless or misleading to compare success rates. They said the HFEA had not raised an issue with the information on their website in any previous inspection. They said that they were not the only clinic to publish a table of comparative success rates that included Create, but believed they were the only clinic about which a complaint had been made to the ASA regarding such a comparison.
The ASA noted that the Introduction to the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (the Code) stated that the Code applied to advertisements and other marketing communications by companies on their own websites that were directly connected with the supply or transfer of services. The success rate data in the table on the “STATISTICS” page of the ARGC website had been taken directly from the website of the HFEA, but the table itself had been created by ARGC by compiling data that appeared on over 100 different pages of the HFEA website. We understood that ARGC had not intended to invite patients to choose their clinic based on the success rate comparison, but the table was clearly addressed to current and prospective patients and had the effect of presenting ARGC as a more favourable option for patients than other clinics. We considered that, in the context of a website for a fertility treatment clinic, the table was marketing ARGC’s services in the provision of IVF and would therefore influence prospective patients when deciding which fertility clinic to choose. We therefore considered that the table was marketing material, and was within the remit of the Code.
We understood that ARGC’s intention had been to make success rate data more accessible for potential patients than it was on the HFEA website and we did not doubt that prospective patients would be interested to see the comparative data. We recognised that consumers could access comparative data on school exam results and hospital mortality rates, but we noted that information regarding the factors that might influence those figures appeared to be presented along with the outcome data, and we considered that there were many reasons why comparative education and health figures might be published.
We considered that comparative advertising was, in general, beneficial for consumers, provided it did not convey a misleading impression of the products or services being compared. We were aware that the HFEA had in the past published success rate data in a way that allowed clinics to be easily compared but we noted that they had taken a decision to stop doing so following an in-depth review in 2009 of the information they provided. IVF was an expensive medical treatment with serious potential consequences for patients and we considered that those consumers interested in IVF could be regarded as vulnerable. We considered that prospective patients would be more inclined to pursue their interest in treatment at clinics with higher success rates and that any comparison of success rates, whether explicitly ranking clinics in order of success or not, should make consumers aware of the factors that might explain why results differed between clinics.
We noted the HFEA website provided extensive information about the clinics it licensed, including the facilities, staff, treatments and services those clinics offered, as well as the success rates of each clinic and the factors associated with the success rates. Their website stated “It is not meaningful to directly compare clinics’ success rates or create ‘league tables’ of clinics’ performance”. On the page headed “Understand fertility clinic success rates”, text stated “Why do success rates differ between clinics? Success rates can be affected by: the type of patients a clinic treats e.g., their age, diagnosis and length of infertility - the type of treatment a clinic carries out - a clinic’s treatment practices”. Further text, under the heading “Data on multiple births (twins and triplets)”, stated “Multiple pregnancy is the single biggest risk of fertility treatment to both mother and baby. The birth of a single, healthy child is the safest, most desirable outcome of fertility treatment. Therefore it is important to look for clinics that have a high proportion of single births, as well as a good overall success rate”.
We noted that the HFEA published data on the causes of patient infertility at each clinic, the average number of embryos transferred per patient and the number of singleton and multiple births (which combined to give the overall success rates for each clinic). They did not regulate the giving of fertility drugs or collect data on drug regimes other than to distinguish between “natural” IVF cycles (in which fertility drugs were not used to stimulate ovulation) and “stimulated” IVF cycles (where fertility drugs were used). Some stimulated treatment cycles were referred to as “mild” because they did not include a “down regulation” phase (the phase in which drugs were administered to turn off a woman's natural cycle). The results published by the HFEA did not distinguish between mild and conventional stimulated IVF. Create believed there was some evidence that mild protocols (upon which they said they focused) would result in lower success rates per treatment cycle (albeit with other potential benefits) and the HFEA website provided information for patients on mild IVF that included the statements “because lower doses of drugs are used, fewer eggs may be available for collection” and “Not much data is available on mild stimulation IVF but as fewer eggs are available, your chances of having a baby may be lower than with conventional IVF.” ARGC maintained that 70–80% of their patients received “mild” IVF and, although there did not seem to be an agreed definition of the term, the NICE guideline indicated that there was no significant difference in the number of live full-term singleton births, multiple births or adverse pregnancy outcomes when comparing different dosages of stimulation drugs and we did not consider the table to be misleading on that basis.
We understood that the table could not and was not intended to provide a comprehensive analysis of the data produced by the HFEA. We noted that the data in the table was recent and that it compared clinics from the same area that had treated a significant number of patients, in each age range. We understood that treatment programmes would always be tailored to individual patient’s needs, but we considered that ARGC had not demonstrated that their patient group or multiple embryo transfer rates (and, consequently, the percentage of multiple births) were substantially comparable to those at the other clinics in the table. We noted that the HFEA was referenced as the source of the data and we welcomed ARGC’s decision to introduce a link to the “Understand fertility clinic success rates” page of the HFEA website. We appreciated that those considering IVF were likely to utilise a number of resources before making a decision regarding their treatment, but we did not consider that they could be expected to be aware of the information on success rates published by the HFEA when reading the table or to necessarily navigate to that information independently without direction. Because the table did not draw consumers’ attention to the information about success rates on the HFEA’s website at the time of its publication, we concluded that it was likely to mislead.
The ad breached CAP Code (Edition 12) rules
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means. (Misleading advertising) and 3.33 3.33 Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product. (Comparisons).
Because ARGC added a link to the website of the HFEA in the course of the investigation, we considered that no further action was necessary in respect of that table.