The Competition Markets Authority’s warning to PCR test providers

posted by KeithDaniel

In view of the Covid-19 pandemic and the rules on travel restrictions, numerous life science companies, laboratories and medical practices have started to offer Polymerase Chain Reaction  travel test services, more commonly known as PCR tests, for those who are travelling and returning from abroad and need to provide evidence of a negative Covid test result.

However, the UK Competition Markets Authority (CMA) has recently found evidence that some providers of PCR travel tests may be in breach of consumer laws due to misleading statements and prices.

In response to these findings, the CMA has issued an open letter to all Covid-19 PCR test providers warning them that a range of harmful practices in the sector could breach consumer protection law. This warning has come shortly after the UK government requested the CMA to launch a rapid, high-level review of the PCR test market on the 9th August 2021, due to concerns that consumers were being exploited with expensive and inadequate PCR tests.

Dan Dowen, Commercial Contracts Senior Associate, sets out below, the areas of concern that have been identified by the CMA and what PCR test providers need to be aware of going forwards.

Harmful practices

The CMA’s open letter identifies the particular practices that are of concern, which include:

  • advertising up-front prices for PCR tests which do not include additional charges that must be paid on top;
  • advertising cheap PCR tests which are only actually available in very small quantities or in some scenarios, not available at all;
  • failing to deliver PCR tests or provide results within stated timescales, or at all; and
  • refusing to provide consumers with refunds where tests are not provided within advertised and/or agreed timescales, or at all.

The letter warns PCR test providers that if they mislead customers or treat them unfairly, they could also face enforcement action from the CMA or Trading Standards. PCR test providers have been instructed by the CMA to immediately review their practices, policies and terms and conditions to make sure they are in line with the requirements of consumer law and to make any changes where necessary.

Action points

The CMA have set out 11 steps that PCR test provider should take to avoid breaching consumer protection laws. These measures are:

1 - Ensuring that its terms and conditions are fair.

2 - Making the terms and conditions easy to find and not hiding any information in small print.

3 - Not excluding or removing liability to consumers where the PCR test provider is at fault.

4 - Not advertising up-front prices for PCR tests which do not include additional charges that everyone must pay.

5 - Not advertising cheap PCR tests which are only actually available in very small quantities or are not available at all.

6 - Setting out any requirements or steps a consumer must take to obtain their test and test results.

7 - Providing honest, accurate and clear information on the timescales for receiving tests and results.

8 - Delivering PCR tests and results within the stated timescales.

9 - Ensuring that any terms and conditions/ policies on cancellations and refunds reflect consumes’ statutory rights. This means the PCR test provider must not refuse to provide consumers with refunds where tests are not provided within advertised and/or agreed timescales, or at all.

10 - Providing an adequate level of customer service.

11 - Ensuring that its practices and policies are in line with all the requirements of consumer protection law and any other relevant legislation.

Further reviews

The CMA is continuing their review of the PCR testing market and are particularly considering whether breaching providers should be subject to enforcement action and any immediate action the UK government should take in the meantime.

The UK government have also warned that more than 80 private testing companies listed on the government website will be issued with warnings for displaying misleading prices, and could subsequently be removed from that list. The government have already removed more than 50 companies from the list and have announced that they will carry out spot checks on all listed providers to ensure that they are legitimate and accurately display their prices.

Advice for PCR test providers

PCR test providers must therefore promptly review their current practices in line with this guidance. In particular, PCR test providers need to ensure that their terms and conditions are thorough, fair, clear and that any advertising practices are not misleading.

It is evident that enforcement action is being considered by both the UK government and CMA, and such measures are likely to be stringent and harsh to encourage PCR test providers to comply with consumer protection laws.

For further information on this matter or if you would like to review your current set of terms and conditions relating to the above or any other matter, then please contact Dan Dowen at ddowen@berrysmith.com or alternatively please call 029 20 345511 and ask for the commercial team.