Clinicians liable for misleading brochures

Posted: 9th May 2014

BeautyBeauty salon customers who paid £4,000 for an anti-wrinkle treatment – which was hailed as a vegetarian-friendly collagen alternative but which contained traces of the blood serum of unborn calves –have scored a crucial victory in their compensation fight.

Kathleen Webster and nineteen other women had sued clinician Mark Liddington and others in the Manchester County Court alleging misrepresentations in marketing material for the treatment, a non-surgical product advertised as being the first not to use animal or synthetic products, with cells instead being grown from the patient's own tissue then re-implanted. The treatment cost up to 10 times more than alternatives but many users complained that it simply did not work.

In seeking damages and the return of the thousands of pounds that they had paid for the treatment, the women's lawyers pointed out that ‘glossy brochures’ setting out the benefits of the treatment omitted to mention that cells were ‘grown’ in foetal calf serum (FCS), a substance which is collected at slaughterhouses.

In a case which stands as a warning to the beauty industry and retailers in general that manufacturers’ claims should be taken with a pinch of salt, the Court of Appeal ruled that clinicians who recommended the product were bound by the guarantee that the treatment would utilise only clients’ cells.

Although clients were exposed to only tiny traces of FCS, Lord Justice Jackson observed, "For some people, the idea of having extraneous material injected into one's face is off-putting. I could not say that such an attitude is unreasonable."

The brochures contained no disclaimers and clinicians had ‘adopted’ their contents when handing them to their clients. Claims that the ‘truly unique’ treatment was ‘natural’ and contained no animal products were ‘inaccurate representations of fact’ and the clinicians were responsible for those misrepresentations.

The product's manufacturer had ceased trading, leading to claims against individual clinicians who recommended it. Their lawyers argued that they had not ‘vouched for the accuracy of the contents of the sales material’ and had honestly believed that the manufacturer’s claims were accurate.

Their barrister submitted, "There is no precedent in law for the proposition that a clinic or clinician should be liable for promotional material produced by a manufacturer. This finding is therefore of very significant importance to the medical profession and its implications could hardly be more wide reaching."

However, in dismissing the clinicians’ appeal against an earlier ruling to like effect, Lord Justice Jackson said, "In my view, a reasonable person standing in the shoes of any of the claimants would conclude that the clinician was adopting the contents of the brochure.

“Against the background of the expert evidence, it seems to me that the judge was entitled to find that the small traces of FCS in the injectate were a material matter. Statements to the effect that the injectate contained 'only' the patient's own cells and nothing else were incorrect in a material respect. If patients were told the true position concerning foetal calf serum, this may well have affected their decision to go ahead."