Five companies investigated by the OFT typically charged £10 for “processing” applications for European Health Insurance Cards and passing them on to the authorities. In fact the cards were free and official- sounding domain names like ehic.org had been used to lure punters. Joseph Kitchingham investigates.
Topic: Consumer protection
Who: Office of Fair Trading
When: Investigation Commenced March 2010
Where: UK
Law stated as at: 10 August 2010
What happened:
European Health Insurance Cards (“EHIC”) (formerly known as E111 cards) are strongly recommended for UK residents travelling in the rest of the EU. The cards can be obtained free of charge from the official NHS website but some online traders have been charging consumers for applications for the cards, typically around £10 a go, and did not make it clear that they were not the official NHS site.
An OFT investigation was launched in March 2010, in consultation with the Department of Health, and with support from Bolton Trading Standards, following complaints to Consumer Direct and the Department of Health.
The websites supposedly offered a 'review and forward' service for the applications, for which a fee was charged. However, many consumers believed they were paying for an EHIC via the official site, and were unaware that EHICs are available free of charge from the NHS.
Certain sites had purchased sponsored search engine links and therefore featured prominently when consumers searched for 'EHIC'. Some also used official-sounding domain names like ehic.org
Response
The OFT has taken against four online traders under Part 8 of the Enterprise Act 2002 (“EA”), Regulations 3, 5 and 6 of the Consumer Protection from Unfair Trading Regulations 2008 (“CPUTR”) and Regulation 6 of the Electronic Commerce (EC Directive) Regulations 2002 (“ECR”).
Assessment
The OFT formed the opinion that the online traders had breached the CPUTR and, in certain cases, the ECR. The websites were found to be misleading in their presentation as they mimicked the EHIC brand, used an official sounding domain name and omitted important information by failing to clearly disclose that they were not the official provider of EHICs.
Action
As a result of the OFT's investigations, three online traders have signed formal undertakings not to engage in deceptive selling practices. The websites are:
A fourth website (www.ehiconline.com) has been suspended by its domain name registrar following concerns expressed by the OFT, and a fifth (www.e111-online.com) has voluntarily ceased trading.
Why this matters:
Having an EHIC entitles any UK resident in possession of the card with access to state-provided healthcare in EU member states for reduced or zero cost, and are particularly in demand during the summer holiday season. Without an EHIC card you may be charged like a local in other parts of Europe
Senior Director of the OFT's Consumer Group Heather Clayton said “While it is not unlawful to charge money for a reviewing and forwarding service, traders must be clear about the product or service they are offering, and not trick consumers into parting with money for services they don't want. People seeking to obtain government funded services such as an EHIC should check carefully that they are using an official government website.”
Thin line between legitimate and criminal "review and forward" services
True enough but sometimes there may be a thin line between a "review and forward" service which satisfies a genuine need and legitimately charging for its services and a business which is inherently misleading and committing a criminal offence under the Consumer Protection from Unfair Trading Regulations ("CPRs").
This may be one reason why the OFT took flanking action principally by way of the Enterprise Act rather than a frontal assault under the CPRs, an approach it seems to be adopting in most if not all cases where the CPRs might otherwise have come into play. This is consistent with a paper recently published by the Law Commission which questions the wisdom of legislative blunderbusses criminalising broad swathes of business activity which might be far more effectively dealt with by civil sanctions.
Joseph Kitchingham
Paralegal
Redstone plc
Joseph.Kitchingham@redstone.co.uk
