AUTH/3344/5/20 - Health Professional v Britannia

Email distribution of promotional material

  • Received
    04 May 2020
  • Case number
  • Applicable Code year
  • Completed
    02 December 2020
  • No breach Clause(s)
  • Breach Clause(s)
  • Sanctions applied
    Undertaking received
  • Additional sanctions
  • Appeal
    No appeal

Case Summary

A health professional stated that, despite emailing Britannia Pharmaceuticals Ltd three times over the last 12 months, asking to be removed from all mailing lists, a sales representative had emailed him/her a copy of Kinetic. Kinetic (a copy of the March 2020 edition was provided by Britannia) was a magazine about the practical management of Parkinson’s disease. The front cover stated that the publication series had been initiated and funded by Britannia and that the company’s products would be discussed. Prescribing information for Apo-go (apomorphine) was included on the back cover. Apo-go was indicated for the treatment of certain patients with Parkinson’s disease.

The complainant alleged that the Kinetic magazine was entirely promotional and ‘pushing’ such an item was in poor taste given the current Covid-19 situation. Why was promotional literature being sent out during a national crisis when doctors had more pressing issues to deal with? The complainant suggested that the representative had been pressurised to distribute large numbers of the magazine. The complainant alleged that the behaviour was not acceptable.

The detailed response from Britannia is given below.

The Panel noted that in April 2020, a Britannia employee emailed representatives a copy of the Kinetic magazine stating that it provided a great way to touch base with customers where face-to-face interactions were limited. The email asked the representatives, that where consent had been obtained, to share Kinetic with their customers, and in that regard the Panel considered that as face-to-face interactions would be limited due to the Covid-19 pandemic, the representatives might turn to email communication more than usual. The Panel noted Britannia’s acknowledgment that the email did not provide sufficient guidance and that it had not been approved/reviewed as it should have been; the company accepted that representatives must have sent the promotional item in question to health professionals on this occasion.

The Panel noted that material had been emailed by a representative and that, according to Britannia, permission to send promotional emails had not been sought prior to the distribution of the Kinetic magazine in question. The Panel ruled a breach of the Code as acknowledged by the company.

The Code required that mailing lists be kept up-to-date and requests to be removed from promotional mailing lists be complied with promptly. The Panel noted the complainant’s submission that he/she had tried to stop promotional material being sent from Britannia but to no avail. The Panel noted Britannia’s submission that the company did not have an up-to-date distribution list for promotional material and company employees did not correctly understand the need to have an up-to-date distribution list or the risks involved in not having one. The Panel further noted Britannia’s submission that health professionals were not provided with suitable guidance about how to stop receiving promotional material and that any request to be removed from a promotional mailing list would have been futile as there was no robust process or governance in place with regard to promotional mailing lists when the Kinetic magazine was distributed. The Panel therefore ruled a breach of the Code as acknowledged by the company.

The Panel noted Britannia’s submission that it had extensive internal processes and procedures in place to ensure that it adhered to data protection regulations. Training was provided to all employees however, on this occasion, those policies had not been followed. The Panel noted Britannia’s submission that its process for collecting consent within its sales and marketing department had fallen short of a robust and compliant procedure. The Panel was concerned to note Britannia’s further submission that there was no process or governance regarding its promotional mailing lists in place at the time and there was confusion, lack of accountability and inadequate understanding of the Code with regard to mailing lists and GDPR.

The Code required that representatives must at all times maintain a high standard of ethical conduct in the discharge of their duties and must comply with all relevant requirements of the Code. The Panel noted that the representatives had not appeared to receive appropriate training and briefing with regard to the use of promotional emails etc and so they had not obtained prior consent to send such emails to health professionals as required by the Code. The Panel ruled a breach of the Code.

The Panel noted the complainant’s concern that promotional literature was being sent out during the Covid-19 crisis when doctors had more pressing issues to deal with. The Panel noted Britannia’s submission that its representatives had received verbal instructions that they should be a partner during the crisis instead of being purely promotional. Nonetheless, the Panel noted that the Code did not prohibit the distribution of promotional material at any time provided that it complied with the requirements of the Code. On the narrow ground of when the Kinetic magazine had been distributed, the Panel did not consider that high standards had not been maintained and no breach of the Code was ruled.

The Panel, however, noted its comments and rulings above regarding the process surrounding the email distribution of the magazine. The transcripts of interviews showed that knowledge regarding the use of consent, mailing lists, how to keep those mailing lists up-to-date and GDPR etc, even amongst senior employees, was extremely hazy and confused; there appeared to be little or no sense of employees taking personal responsibility for compliance. The Panel considered that Britannia had failed to maintain high standards and a breach of the Code was ruled.