FTC Charges Infertility Clinics with Misrepresenting Success Rates

Companies Agree to Settlements

FTC News Release
September 27, 1990

The Federal Trade Commission has charged two infertility clinics with misrepresenting the success rates of their in vitro fertilization (IVF) services. The companies agreed not to make such representations in the future, under consent agreements announced today for public comment.

One complaint names IVF Australia, one of the largest providers of infertility services in the United States. It is based in Greenwich, CN., and offers medical services as IVF Australia Program at United Hospital, Port Chester, NY, and at Waltham Weston Hospital & Medical Center, Waltham, MA.

The other complaint names NME Hospitals, Inc., of Santa Monica, Calif., which owns and operates West Boca Medical Center, in Boca Raton, Fla. The Center offers infertility services through The Fertility Institute of Boca Raton.

As noted in the Commission's Analyses to Aid Public Comment attached to the consent agreements, the allegations do not concern the quality of the infertility services provided, but address only success-rate claims in advertisements.

According to Gloria Cordes Larson, Deputy Director of the FTC's Bureau of Consumer Protection, "These two cases will provide important guidance to a growing industry about the support necessary to make valid success rate claims."

Larson said, "Our review of success rate claims made by a number of infertility clinics nationwide also led the FTC to issue a brochure for consumers, 'Infertility Services,' to help consumers evaluate success-rate claims and select the best program for their specific needs. The brochure provides useful information for the one in six US couples who are infertile and who may have considered contacting a health care provider that offers infertility services."

IVF Australia advertised in newspapers and magazines, with such claims as, "more than 28% of the couples who complete a cycle of treatment are becoming pregnant," and "one out of three couples who complete a cycle of treatment is becoming pregnant." A brochure sent to prospective patients claimed that "Our experience indicates that when a patient at an IVF Australia Program completes four IVF treatment cycles, the chance of giving birth is about 50%."

According to the FTC's complaint, IVF Australia has misled consumers by overstating the likelihood of achieving either a live birth or a pregnancy. These success-rate claims overstated the actual success rate, the complaint says, because IVF Australia failed to disclose that a significant number of unsuccessful outcomes were not included in the calculation used to determine success.

The consent order requires IVF Australia to make disclosures regarding its success rate calculations. It cannot make success-rate representations concerning infertility treatment unless the percentage represented in the success rate accounts for all patients who begin the program, or the basis used to compute the percentage rate is clearly and prominently disclosed.

In addition, for any infertility treatment offered, IVF Australia may not misrepresent that a number or percentage of patients have given birth or become pregnant, or in any way misrepresent its success rate in achieving births or pregnancies.

The complaint against the Fertility Institute of Boca Raton charges that it advertised in local newspapers and national magazines that "four of our first twelve patients participating in our In Vitro Fertilization program have achieved pregnancy," and "Our success rate is an impressive 30%, well above the national average."

The Commission charged that the Fertility Institute of Boca Raton did not have a reasonable basis for these claims, and that they were deceptive. The Fertility Institute based its determination of pregnancy solely on a human chorionic gonadotropin (hCG) chemical test, which is considered by experts in the field to be an unreliable measure of pregnancy without confirmation by ultrasound (sonogram), according to the complaint. In addition, its claim of a pregnancy success rate above the national average was also based on the hCG test, while the only source of comparison for national average figures, the United States IVF-ET Registry, requires ultrasound confirmation in computing its national average figures.

Under the consent agreement, the Fertility Institute of Boca Raton must have a reasonable basis for any future success-rate claims for its in vitro fertilization procedures. If it makes a comparison with other success rates, it must use the same tests that the other success rates use. Any claims for success rates of pregnancies stemming from in vitro, or any live births or pregnancies from any infertility treatment, must be based on tests that are recognized within the industry as producing accurate and reliable results. In addition, it must not make any other misrepresentations of success in achieving pregnancies or live births.

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