Women’s healthcare and UK competition enforcement – recent developments

Healthcare generally is a priority enforcement sector for competition watchdogs across the world, including the UK’s Competition and Markets Authority (CMA) (see cases in recent years on Liothyronine, and Paroxetine, among others). However, the CMA has recently used its consumer protection powers to focus on cases with a link to women’s healthcare. This article looks at two recent cases relating to self-funded IVF and formula milk.

Consumer law protection for self-funded IVF

The CMA has carried out several workstreams in relation to self-funded IVF from 2020 – 2025, aiming to improve consumer protection. The context for the CMA’s intervention¹ is the commercialisation of IVF treatment in the UK. In 2023, over 76% of patients in England self-funded their fertility treatment, at considerable cost. The CMA has underlined that consumers seeking such fertility treatment are in a vulnerable position due to the complex nature of the purchase, the emotional impact of having been trying to conceive before seeking treatment, and the fact that UK patients are not used to buying healthcare.

The CMA’s work has included publishing consumer guidance for fertility clinics, reviewing consumer law compliance in the sector and exploring a potential voluntary pricing initiative for IVF clinics, which would enable patients to accurately compare prices. Interestingly, however, the CMA has recently concluded that such a voluntary initiative is not the way forward (given that it would require widespread participation and independent audits to ensure price data accuracy).

Therefore, in July the CMA wrote to the government to share its view that regulatory reform is needed to protect consumers from harmful commercial practices (e.g. mis-selling of add-on treatments and misleading information about the success rate of fertility treatments),² in particular suggesting that:

The Human Fertilisation and Embryology Authority (HFEA) should have a broader remit, e.g. an explicit duty to promote patient care and protection.  

The HFEA should have enhanced information gathering powers (e.g. to obtain information on how often a clinic sells different treatment add-ons).  

The HFEA should be able to take more targeted, proportionate regulatory action for non-compliance and apply flexible sanctions like fines.

Market study on infant formula and follow-on formula

Another example of the CMA’s recent work with a link to women’s healthcare is its market study into the supply of infant formula and follow on formula to UK consumers. This study arose out of the CMA’s earlier work in relation to the groceries sector, where the CMA identified that baby formula prices had risen by 25% in two years in a concentrated market (with two firms enjoying 85% market share).

As part of its work, the CMA compiled an appendix on the evidence it reviewed concerning consumer behaviour in the market for infant and follow-on formula.³ This appendix contains discussion about the experiences of mothers as consumers, including the vulnerability that comes with initiating formula feeding unplanned in a healthcare setting.

The appendix notes that healthcare professional recommendations are an important driver of decision making for women who decide their formula brand choice at birth. This factor was cited by 42% of mothers in one manufacturer survey, and the Royal College of Midwives informed the CMA that seeing a brand in hospital creates a ‘perceived recommendation’.

In this market study, the CMA has ultimately recommended improving existing regulations to create a more balanced decision making environment for parents. This includes the recommendations to: 

Eliminate brand influence in healthcare settings, including ensuring that infant formula in healthcare settings carries standardised labelling. 

Helping parents to make choices in retail settings, e.g. by displaying all infant formula brands together on retail shelves, in a separate cluster from follow-formula brands. 

Strengthening labelling and advertising rules, e.g. by requiring information on the nutritional sufficiency of all infant formula products on product labelling.

Focus on vulnerable consumers

The CMA’s work in the fertility sector and its market study on infant formula and follow-on formula share a focus on protecting vulnerable consumers in areas that have a particular impact on women, while also affecting male parents and caregivers.

As women’s health is so often underfunded and lacking in options for patients and consumers, we may see the CMA take on further cases in this space where the watchdog is concerned that a given market is not functioning well, with the result that consumers are losing out.

Footnotes:

• [1] Explained in the CMA’s Update report on the CMA’s work on a voluntary pricing initiative to help fertility patients compare clinics’ prices.
• [2] Update report on the CMA’s work on a voluntary pricing initiative to help fertility patients compare clinics’ prices.
• [3] Set out in Appendix B: the consumer journey to the CMA’s Final Report.