Australian Competition and Consumer Commission v Breast Check Pty Ltd [2014] FCA 190

Australian Competition and Consumer Commission v Breast Check Pty Ltd [2014] FCA 190

Breast Check published pamphlets to a section of the public that conveyed, unqualified, that thermography (alone or with MEM) could provide an adequate scientific or medical basis for breast cancer risk assessment, assurance of not having cancer, and as a substitute for mammography, when no such scientific medical basis existed. These representations were false or misleading, and Breast Check engaged in misleading or deceptive conduct in contravention of s 52 Trade Practices Act and s 18 ACL. Alexandra Boyd was knowingly concerned in and party to the contraventions as she approved and participated in relevant conduct and knew there was inadequate scientific basis for the representations.

Jurisdiction
Australia
Judgment Date
10 March 2014
Procedural Posture
Civil / Liability Judgment; Relief to Be Determined
Outcome
Liability found for Applicant; Court to hear submissions on appropriate relief and orders.
Legal Topics
['misleading or Deceptive Conduct' 'false Representation' 'accessorial Liability' 'medical Devices Regulation' 'advertising and Promotion']
['consumer Law' 'trade Practices'] ['misleading or Deceptive Conduct' 'false Representation' 'accessorial Liability' 'medical Devices Regulation' 'advertising and Promotion']

Case Brief

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Procedural Posture

Civil / Liability Judgment; Relief to Be Determined

Legal Issues

  1. 1 ['Whether promotional materials by Breast Check Pty Ltd were distributed to the public' 'Whether representations regarding breast imaging devices were conveyed' 'Whether the representations were accurate' 'Whether Alexandra Boyd was knowingly concerned in contraventions']

Ratio Decidendi

Breast Check published pamphlets to a section of the public that conveyed, unqualified, that thermography (alone or with MEM) could provide an adequate scientific or medical basis for breast cancer risk assessment, assurance of not having cancer, and as a substitute for mammography, when no such scientific medical basis existed. These representations were false or misleading, and Breast Check engaged in misleading or deceptive conduct in contravention of s 52 Trade Practices Act and s 18 ACL. Alexandra Boyd was knowingly concerned in and party to the contraventions as she approved and participated in relevant conduct and knew there was inadequate scientific basis for the representations.

Court Disposition

Liability found for Applicant; Court to hear submissions on appropriate relief and orders.

Orders

  • ['Court will receive submissions and hear from parties as to appropriate relief and terms of final orders.']