Court finds Breast Check business engaged in misleading and deceptive conduct

The Federal Court has found breast imaging provider Breast Check engaged in misleading or deceptive conduct and made false representations about the devices used in its breast imaging services.

Former director Dr Alexandra Boyd was also found to have been knowingly concerned in Breast Check’s conduct.

The proceedings were brought by the Australian Competition and Consumer Commission against Breast Check, which is now called PO Health Professionals.

Breast Check’s imaging services initially involved the use of a device known as the Multifrequency Electrical Impedance Mammograph and a digital infrared thermographic camera to capture images of a customer’s breasts. 

From about February 2011, only the infrared thermographic camera was used.

The court found Breast Check falsely represented that breast imaging done using a thermography device alone, or in conjunction with 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.

The court also found Breast Check represented that there was an adequate scientific basis for using the devices as a substitute for mammography when that was not the case.

Justice Barker commented that “it would be entirely reasonable for a consumer to conclude that, where a service of a medical nature is being provided, there would be scientific medical evidence of a sufficient quality to support the use of the equipment used to provide such a service and that the use of breast imaging devices would not be promoted in a way to be contrary to the state of scientific medical knowledge.”

“This case was particularly concerning to the ACCC because Breast Check had represented to women that its breast imaging services could assure them they did not have breast cancer when this was not the case, and that the imaging was a substitute for mammography, when there was no scientific basis for this claim,” ACCC chairman Rod Sims said in a statement.

Melissa Monks, special counsel at King & Wood Mallesons, told SmartCompany the implications of misleading conduct here go well beyond financial loss and brand risk.

“The ramifications of a woman relying on this could have been life threatening,” she says.

“We have seen this type of conduct before with Allergy Pathway making claims its product could cure allergies and these are risky health-related claims with no scientific basis for making them.”

Monks says it is also interesting that the ACCC joined with the Cancer Council Australia and the Therapeutic Goods Administration on an education campaign to urge Australian women not to rely on unproven commercial breast imaging technologies to detect breast cancer. 

“This shows the alternative strategies the ACCC can employee,” she says. 

A hearing will be held in the Federal Court in Perth on May 20 and the ACCC is seeking declarations, injunctions, an order that corrective letters be sent to affected consumers, pecuniary penalties and costs.

SmartCompany contacted PO Health Professionals for comment but did not receive a reply prior to publication.