CordBanking

'Peddling promise? An analysis of private umbilical cord blood banking company websites in Canada' by Alessandro R. Marcon, Blake Murdoch & Timothy Caulfield in (2021) Cell and Tissue Banking comments 

 Private umbilical cord blood banking is growing around the world. A family’s decision to bank cord blood publicly or privately can be influenced by numerous sources including healthcare practitioners, personal networks, the popular press, social media and marketing discourse from private entities. Issues have been raised concerning how private banks market their services, particularly with regards to the likelihood of use and for what purposes cord blood can be used. The objective of this study was to analyze the marketing on the seven company websites offering private cord blood storage in Canada. We performed a mix of content and general qualitative analysis on the seven websites. Our analysis shows substantial hype around cord blood uses, amplifying the promise of speculative uses and distorting the likelihood of use. Findings show that this promotional messaging often deploys communication strategies which draw on testimonials and emotionally-charged narratives. Questions should be asked about whether the promissory aspects of these websites constitute breaches of Canadian law or regulation. Careful monitoring of the private cord blood space is important for ensuring that the Canadian public is adequately and accurately informed of the services being offered.

The authors argue 

 Umbilical cord blood banking has grown significantly over the past two decades. The option was first made available in the 1990s following the discovery that cord blood is a rich source of stem cells (Kurtzberg 2017). These stem cells can now be used to treat blood and immune system disorders, and also in research on novel therapies not yet ready for clinical application (Allan 2020; W. T. Shearer et al. 2017). Unlike the United Kingdom, which has had an operational public banking program since 1996 (Haw 2016), and even though Quebec established a functioning provincial system in 2004, it was not until 2013 that Canada developed a national public banking program (Haw 2016; Héma-Québec 2012; NHS, access 2020). Private cord blood banks began offering storage in Canada as early as 1996 (Haw 2016) and have expanded significantly since. The current global market is projected to be worth $23 billion by 2025 (Global News Wire 2019). 

Public banking is overseen by government agencies, free of cost for the donor, and the collected materials are used to treat other patients or for research. Collecting as much cord blood as possible from a wide variety of ethnic groups is important to ensure opportunities for Canada’s ethnically diverse population. Private banking is for-profit, and stores cord blood for clients until retrieval is requested. Individuals generally pay an initial fee (approximately $1000 CAD), which covers registration and collection, followed by a yearly storage fee (approximately $125). There are currently seven private banking companies marketing in Canada (Parent’s Guide to Cord Blood 2020). Since both public and private institutions are interested in obtaining cord blood, Canadian parents are tasked with obtaining accurate, up-to-date information about whether and where to donate or store the cord blood following childbirth. 

Decisions to bank publicly or privately can be influenced by numerous sources including healthcare practitioners, personal networks, the popular press, social media and marketing discourse (Graham et al. 2016; Morgan et al. 2005; Peberdy et al. 2018; Soroka et al. 2013). Popular health websites such as www.babycenter.ca or www.webmd.com have pages dedicated to explaining the differences between public versus private banking (Private cord blood banking in Canada access 2020; Umbilical cord blood banking access 2020). Research has shown, however, the public’s awareness and knowledge of cord blood uses is lacking, and that information sources accessed by the public can be “varied, fragmented and inconsistent” (Peberdy et al. 2018). The differing and often opposing discourses produced by public and private institutions likely contribute to this confusion. 

Tensions exist in Canada between private and public cord blood banking. In Canada, as well as abroad, policy statements and government discourse recommend public banking over private, except in cases where a family might benefit from cord blood use based on an established prior condition like, for example, a sibling with leukemia, sickle cell disease, Hodgkin’s lymphoma or thalassemia (MyHealth Alberta access 2020; Health Link BC access 2020; Health Canada 2019; Shearer et al. 2017). These recommendations have been made because the potential for autologous (for donor) or allogeneic (for others) use offered by private banking is extremely low–a point confirmed by usage data (Shearer et al. 2017). Private banking is also costly and can elude regulatory oversight, in turn impacting overall blood quality (Shearer et al. 2017). In contrast, public banks provide public health benefits and regulatory oversight, which helps to ensure effectiveness while minimizing risk (Mohammed and EL Sayed 2015; MyHealth Alberta access 2020; HealthLink BC, access 2020; Health Canada 2019). Provincial and federal governments have also stressed how private banks commonly oversell the potential for cord blood use, especially with regards to more speculative therapies where evidence to support clinical application is lacking (Mohammed and EL Sayed 2015; MyHealth Alberta access 2020; HealthLink BC, access 2020; Health Canada 2019). 

Academic research investigating the public–private divide has described how public banks typically operate on a “regime of truth,” in contrast to private banks which typically operate on a “regime of promise” (Brown 2013; Martin et al. 2008). Here, private banks often apply the element of hope to their marketing discourse, upselling potential benefits, and thus playing into the “promissory” (Petersen and Krisjansen 2015) and “hyping” (T. Caulfield and Condit 2012; Master and Resnik 2013; Montague 2019) elements of the health sciences. Private banking has also been marketed as type of “biological insurance” for parents wanting to do whatever is possible for their children’s and family’s benefit (Brown 2013; Marcon et al. 2020; Martin et al. 2008; Weeks 2018). Indeed, a labeling shift has been observed with private banks now typically describing their services as “family banks” (Brown 2013; Martin et al. 2008; Weeks 2018). Further research documenting the procedures undertaken by women who stored blood privately in Canada found the process to be more complex and arduous than the women had expected (Haw 2016). Notably, a range of critical commentary also exists around public banking processes (Allan et al. 2016; Brown 2013; Isasi et al. 2013, 2018). In some contexts, critiques of drawing absolute distinctions between public and private banks have been raised, noting that similar marketing efforts are present in both (Beltrame 2020). 

The banking of cord blood will likely continue to increase both publicly and privately. Indeed, recent research on the portrayal of cord blood in the North American popular press has found that the topics of public and private banking feature significantly (Marcon et al. 2020). This research also shows that while private banking was more commonly portrayed as problematic than beneficial, strong and potentially persuasive narrative messaging around private banking benefits was also present, which might impact a family’s decision (Caulfield et al. 2019; Marcon et al. 2020). The public is increasingly going online to access health information (Shearer and Gottfried 2017), and because both the public’s knowledge and awareness of cord blood uses is lacking and because private cord blood banks typically oversell the potential for cord blood use, it is vital to observe and analyze the information influencing cord blood banking decisions. This includes analyzing the online marketing of the private cord blood banks as these companies’ practices may elude regulatory oversight, particularly with regards to misleading the public around the probability of usefulness and the practical benefits of private cord blood banking. Indeed, these companies require accreditation to operate in Canada, and it is their responsibility to adhere to government mandated truth-in-advertising standards (Murdoch et al. 2020). 

... The objective of this research was to analyze the marketing on the seven cord blood companies’ websites offering services in Canada. While research on the marketing of cord blood exists for other contexts or periods (i.e., Beltrame 2020; Brown 2013), there is no research for the current Canadian context. Given the concerns raised around private-banking marketing, we considered it valuable to analyze the manner in which the companies are marketing their services to the public. We sought to analyze specific characteristics and themes evident on the websites, and the degree to which websites promoted the growing future potential of stem cell use as a reason to store cord blood in a private bank.

Personhood

'The Personification of the Partnership' by Harwell Wells in (2021) 74 Vanderbilt Law Review asks 

What does it mean to say a business association is a legal person? The question has shadowed the law of business organizations for at least two centuries. When we say a business is a legal person we may be claiming that the law distinguishes its assets, liabilities, and obligations from those of its owners; or that it has a ‘real will’ and personality apart from its owners; or that it in some way can carry or assert rights generally ascribed to natural persons. This Article sheds new light on these old questions by looking at an oft-overlooked business form, the partnership, and at once-fierce debates over just what the partnership is. In the decades around the turn of the twentieth century scholars and practitioners hotly debated whether the partnership was an ‘aggregate’ or ‘entity’ and whether the law should treat it as a separate legal person, debates which culminated in the drafting of the Uniform Partnership Act (1914). Central to these debates was a now-forgotten facet of the legal personhood debates: the moral consequences of treating a business association as a distinct legal person.

'Flogging the Wrong: EU Corporate Fines Violate the Fundamental Rights of Shareholders' by Reuter Alexander in (2021) 12(4) Journal of European Competition Law & Practice 301–314 comments 

Herodotus reports that the fleet of Persian Great King Xerxes suffered from a severe storm when he crossed the Hellespont to invade Greece in 480 B.C. Thus, the Great King had the waves of the Hellespont punished by 300 strokes of the rod. Our smile about the Great King’s useless vengefulness leads, however, to the question as to who is sanctioned by fines imposed on legal entities, which, as such, are a mere pile of paper kept by the commercial register and as unsusceptible to punishment as the Hellespont’s waves. Is it appropriate to sanction the organisation (the company) as such, although it is always human individuals who violate the rules? If individuals are sanctioned by fines or other punishment, the sanction is based on the assumptions (i) that the sanction is justified by its purpose, that is, to act as a (specific or general) deterrent and (ii) that an individual is responsible for himself and must therefore accept the sanction as an evil that the community imposes on him for the law infringement (proportionality provided). In contrast, if a legal entity as such is sanctioned, then others are affected. In case of companies, these others primarily are the shareholders. However, neither of the described assumptions (i) and (ii) holds true about them. This raises doubts as to the legitimacy of corporate sanctions and, what is more, in respect of sanctions imposed by the European Commission, doubts in respect of their compatibility with the fundamental rights of the shareholders under EU law. These doubts are the subject of this article. 

The article submits that, in many instances, shareholders are unable to prevent the law infringements intended to be sanctioned by the fine, and that they are also unable to prevent recidivism. Hence, the article finds that corporate fines are not only manifestly unsuitable to reach their purpose. In addition, they do not ‘to strike the right balance’ within the meaning of the ECJ’s case law on restrictions of fundamental rights. Pointedly: If one takes the fundamental rights of shareholders seriously, the European Commission, when imposing corporate fines, is not only a revenant of Great King Xerxes in its sentiment that crime deserves punishment. It even goes further than the Great King in that it does not only flog waves, which feel no pain, but third parties, that is, the shareholders, without sufficient cause. 

It is true that in many decades of practice, the European Court of Justice (‘ECJ’) has never objected to corporate fines from that perspective. Yet, the analysis of these doubts is neither academic nor moot: The limits set by shareholders’ fundamental rights are a ‘fresh issue of law’, which has never been brought before, and dealt with by, the ECJ. It can, under the ECJ’s procedural rules, thus be raised at any time. This holds all the more so in view of the increased significance attached to EU fundamental rights and the mushrooming amounts of the fines, which the Commission has come to impose in the last decade. 

B. Concerns against corporate fines 

That sanctions on companies ‘do not have [a] deterrent effect, as they do not deal with individuals, but allow them to hide behind companies’, has already been argued earlier. In the same vein, corporate sanctions alone without a combination with sanctions against individuals were expected to become ‘subject to increasing criticism and diminishing legitimacy’. It was argued that while corporate fining is much easier and less costly for the authorities, cracking down on the companies is unlikely to deter directors from breaching the law. This article’s proposition is that the described concerns mutate in a legal objection if one takes the fundamental rights of the shareholders into due regard: Fundamental rights of shareholders cannot be restricted merely because their restriction is easier, less costly and/or benefits public budgets more, than law enforcement against the responsible individuals. 

C. Outline of the article 

As the highest EU fines are imposed under the EU competition rules, the article focuses on fines in this area. Chapter II sets forth the purpose of corporate fines under EU law. Chapter III describes the yardstick of shareholders’ fundamental rights against which corporate fines have to be measured. Chapter IV applies that yardstick to corporate fines and discusses whether or not they are proportional. Chapter V sets forth the practical consequences for the Commission’s practice, and Chapter VI contains the conclusion

Alexander concludes

While the Hellespont waves flogged by Great King Xerxes did not feel pain, the EU Commission’s corporate fines hit third parties, that is, the shareholders. Hence, corporate sanctions must be measured against their fundamental rights. This holds all the more true as the EU, in its desire for effective law enforcement, (i) does not only subject to corporate fines the acting legal entity, but its entire group, and (ii) measures fines on the basis of the turnover of the entire group, not only on that of the acting legal entity (see Chapter III C.1). In other words, to effectuate the prosecution of competition law infringements, the EU does not only ‘pierce’ the corporate veil, it removes it in its entirety. If EU law thus applies an economic approach in the interest of ‘effective’ prosecution and fining, nothing else can hold true about ‘effective’ protection of fundamental rights. Correspondingly, ‘effective’ protection of fundamental rights cannot stop at the corporate confinements of the legal entity either. From the perspective of the shareholders’ fundamental rights, corporate sanctions hit the wrong and do not bring about the targeted deterrence; as a result, they both are unsuitable (even ‘manifestly’ unsuitable) to reach their purpose and fail ‘to strike the right balance’. While the Great King’s power was absolute, the EU’s is not. Its corporate fine practice must be held to violate shareholders’ fundamental rights.

Data Breach

'The Data Breach Epidemic: A Modern Legal Analysis' by Laura A Hendee in (2021) 24(1) Journal of Technology Law and Policy comments 

This Note sheds light on the major legal issues surrounding the numerous data breaches that plague our modern technology-driven society. Current laws in the United States vary widely in how they handle the resolution of harm to unsuspecting victims of data breaches. The issue of Article III standing is commonly at the forefront of the conflict and discussion in this area, which has resulted in a substantial circuit split in the United States. The newly enacted California Consumer Privacy Act will likely have a major impact in this area of the law and will undoubtedly influence how consumers’ personal information is handled in the years to come.

'Beyond the Privacy Torts: Reinvigorating a Common Law Approach for Data Breaches' by Alicia Solow-Niederman in (2018) 127 Yale Law Journal Forum 614 comments 

Data breaches continue to roil the headlines, yet regulation and legislation are unlikely to provide a timely solution to protect consumers. Meanwhile, individuals are left, at best, in a state of data insecurity and, at worst, in a compromised economic situation. State common law provides a path forward. Rather than rely on statutory claims or the privacy torts to protect consumer data, this Essay suggests that courts should recognize how contemporary transactions implicate fiduciary-like relationships of trust. By designating what this Essay terms data confidants as a limited form of information fiduciary, courts can reinvigorate the tort of breach of confidence as a remedy for aggrieved consumers.