ACCC v Safe Breast Imaging: Breast Imaging Company Fined Deceptive Conduct
Thursday 18 September 2014 @ 10.35 a.m. | Legal Research | Trade & Commerce
In Australian Competition and Consumer Commission v Safe Breast Imaging Pty Ltd (No 2) [2014] FCA 998 (16 September 2014) the Federal Court has fined breast imaging company Safe Breast Imaging Pty Ltd (SBI) $200,000 and ordered its manager be fined $50,000 and also be disqualified from managing corporations for four years, for deceptively promoting a service as an alternative to mammograms.
Background
The legal action was instigated by the Australian Competition and Consumer Commission (ACCC) and alleged that in the period August 2009 to December 2011, SBI falsely represented on its website, in promotional videos, in pamphlets and information given to its customers that its multi-frequency electrical impedance mammograph device (known as MEM) could medically assess whether a person was at risk from breast cancer and assured clients they did not have the disease. When it was in operation the business attracted more than 1200 customers in 150 locations for the states (namely, Queensland, Victoria, New South Wales and Western Australia).
In an earlier decision in March this year (see Australian Competition and Consumer Commission v Safe Breast Imaging Pty Ltd [2014] FCA 238 (18 March 2014)), the Federal Court found that SBI had represented that breast imaging using the MEM device could provide an adequate scientific basis for assessing whether a customer was at risk from breast cancer and the level of that risk; and assuring a customer that they do not have breast cancer. SBI had also represented that there was an adequate scientific basis for using the MEM device as a substitute for mammography. The Federal Court in fact found that, there was inadequate scientific basis for these claims.
Findings of the Court
In deciding the matter Justice Barker found that:
". . . the conduct of Safe Breast Imaging and Ms Firth had the potential to pose a grave risk of serious harm to the health of consumers, who were or were likely to be misled into believing the MEM device could be used for the purposes represented . . . ”.
Further Justice baker noted that:
“ . . .representations that Australian registered doctors were involved in the evaluation of images or the writing of reports, when they were not, and any comfort that customers of the business may have drawn from that, was entirely misplaced”.
Justice Barker said speaking of the penalties imposed that because the conduct had the potential to pose “a grave risk of serious harm” to the health of consumers, the sentence was important to deter others from committing similar offences, saying:
“While the respondents may consider the pecuniary penalties imposed on them to be high or harsh, I consider them . . . to be necessary to ensure others who might be inclined to engage in similar behaviour to the cost of consumers are deterred from doing so, . . .”
The Court also ordered that SBI and Ms Firth post notices to their Facebook pages outlining the Federal Court’s findings and the Court also gave the ACCC permission to send that notice to SBI’s customers.
Responses
In a media release ACCC Commissioner Sarah Court is quoted as saying:
“Consumers are entitled to expect that breast imaging services would be provided with medical oversight and promoted in a way that is consistent with credible scientific knowledge, . . .”
In another report Cancer Council of Western Australia director of education and research Mr Terry Slevin is quoted as saying that the penalties "sent a strong message to commercial operators" and that:
“We [the Council] congratulate and thank the ACCC for their work on this case, which we believe has resulted in far fewer Australian women being duped by these unscrupulous practices, . . .”
It is also reported in the ACCC's media release that SBI no longer provides breast imaging services.
TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.
Sources:
- Safe Breast Imaging to pay $200,000 for false representations (ACCC Media Release - 16 September 2014)
- Another breast imaging provider found to have engaged in misleading conduct (ACCC Media Release - 19 March 2014)
- Australian Competition and Consumer Commission v Safe Breast Imaging Pty Ltd (No 2) [2014] FCA 998 (16 September 2014)
- Australian Competition and Consumer Commission v Safe Breast Imaging Pty Ltd [2014] FCA 238 (18 March 2014)
