Breast Imaging Company Found Guilty of Misleading and Deceptive Conduct
Wednesday 12 March 2014 @ 12.37 p.m. | Trade & Commerce
A Perth-based breast imaging company has been found guilty in the Federal Court of engaging in conduct which was misleading or deceptive or which was likely to mislead or deceive following its provision of unproven services as a radiation-free substitute to mammograms.
In the case of Australian Competition and Consumer Commission v Breast Check Pty Ltd [2014] FCA 190, Justice Barker held that Breast Check Pty Ltd and Dr Alexandra Boyd had breached s 52 of the Trade Practices Act 1952 (Cth) (from 18 October to 31 December 2010) and s 18 of the Australian Consumer Law (after 1 January 2011) in respect of the publication to the public of their breast imaging pamphlet thermography pamphlets.
History of the Case
The litigation started in January 2012 when The Australian Competition and Consumer Commission (ACCC) instituted proceedings against Safe Breast Imaging Pty Ltd and its sole director Joanne Firth, alleging false and misleading conduct in relation to the provision of breast imaging services.
Safe Breast Imaging and Breast Check used a device known as the Multifrequency Electrical Impedance Mammograph to capture images of a customers' breasts. Breast Check also used a digital infrared thermographic camera to capture images.
The ACCC Allegations
The ACCC alleged that Safe Breast Imaging and Breast Check made false and deceptive representations in pamphlets entitled “Breast Imaging. Not a Mammogram” and headed with the phrase: “Vision. Reduce deaths from breast cancer in young women”. The pamphlets relevantly represented that the breast imaging services:
- were an effective means of assessing whether a customer was at risk from breast cancer and the level of that risk;
- could assure a customer that they do not have breast cancer; and
- were an effective substitute for mammography services.
The court found the representations were false because there was inadequate scientific medical evidence to support such assertions.
The ACCC also alleged that between May 2009 and August 2011 Safe Breast Imaging also falsely represented that its breast imaging service included the delivery of a customer report prepared by a medical doctor, namely Dr Alexandra Boyd . On the contrary, in many instances the reports provided to customers by Safe Breast Imaging were not prepared by a medical doctor.
In addition to finding Breast Check had engaged in misleading and deceptive conduct, Justice Barker also determined Dr Boyd was knowingly concerned in the contraventions and was liable as an accessory.
Justice Barker has invited Breast Check and the ACCC to make submissions ahead of handing down his final orders.
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