AUTH/3164/2/19 - Anonymous v Merck Sharp & Dohme

Alleged frequent and disguised promotional emails

  • Received
    18 February 2019
  • Case number
  • Applicable Code year
  • Completed
    28 May 2019
  • No breach Clause(s)
  • Additional sanctions
  • Appeal
    No appeal
  • Review
    Published in the May 2020 Review

Case Summary

A complainant who described him/herself as a concerned UK health professional, complained about two almost identical emails from Merck Sharp & Dohme, received within minutes of each other.  The emails were headed ‘Explore MSD Connect Today’ and invited recipients to access the latest information about Merck Sharp & Dohme products, support their patients with online resources and sign-up for online and live events. 

The complainant noted that the two emails had different subject lines (‘Diabetes 101 – what’s new?’ and ‘Diabetes Round-up’) neither of which indicated that the content was promotional.  The complainant noted that he/she had signed up to receive emails but considered that two identical emails in half an hour was excessive especially as it was not clear that each email was a signpost to a promotional website.  Finally, the complainant noted that there did not appear to be a link to prescribing information for any product on the website.

The detailed response from Merck Sharp & Dohme is given below.

The Panel noted there was no direct or implied mention of any medicine in the emails at issue, however, both emails referred to and included links to a promotional website.  In the Panel’s view, recipients would be clear that the MSD Connect website would include information about the company’s medicines as stated in the content of the email.  However, the Panel considered that as the emails did not promote any specific medicines, the emails were not in themselves promotional and therefore were not disguised.  There was no need to include prescribing information.  No breaches of the Code were ruled.

The Panel noted Merck Sharp & Dohme’s submission that when a reader accessed the MSD Connect website, prescribing information was clearly available.  The Panel noted that the complainant bore the burden of proof and did not consider that he/she had provided evidence to show that, on the balance of probabilities, the MSD Connect website did not include prescribing information for any of Merck Sharp & Dohme’s medicines as alleged and no breach of the Code was ruled.

The Panel noted Merck Sharp & Dohme’s submission that the two emails had been sent to the same health professional within seconds due to a technical error experienced by a third party.  The same email, using different subject lines, was sent to a number of health professionals within seconds of each other.  On balance, based on the particular circumstances of this case, the Panel did not consider that this meant that high standards had not been maintained.  No breach of the Code was ruled.