AUTH/3051/6/18 - Complainant v Alexion

Promotional material posted on LinkedIn

  • Received
    26 June 2018
  • Case number
    AUTH/3051/6/18
  • Applicable Code year
    2016
  • Completed
    14 February 2019
  • Additional sanctions
  • Appeal
    No appeal
  • Review
    Published in the May 2019 Review

Case Summary

A contactable complainant who described themselves as a concerned UK health professional complained about material received on his/her LinkedIn feed from Alexion Pharmaceuticals.  The posted message informed readers that, inter alia, Alexion had submitted an EU application for approval of ALXN1210 as a treatment for patients with paroxysmal nocturnal hemoglobinuria (PNH).

The complainant submitted that it seemed that the posting appeared in his/her feed since Alexion employees in the UK had liked it which then presented it to their connections which included a variety of people including many people in the UK who were not health professionals.  The post detailed the company, the medicine and what it was used for.

The detailed response from Alexion is given below.

The Panel noted the complainant’s allegation that the LinkedIn post, which led to a press release about Alexion and ALXN1210, appeared in his/her LinkedIn feed because Alexion UK employees had liked it which then presented it to their connections.  The Panel noted that the complainant had not named or otherwise referred to a specific Alexion UK employee that was in his/her network on LinkedIn.  The Panel further noted Alexion’s submission that when it was advised of the complaint, the post had received over 300 ‘likes’ on LinkedIn including a ‘small handful’ of likes from Alexion UK employees. 

The Panel noted that material could be disseminated or highlighted by an individual on LinkedIn in a number of ways, including by posting, sharing, commenting or liking.  The Panel understood that if an individual ‘liked’ a post it increased the likelihood that the post would appear in his/her connections LinkedIn feeds thereby disseminating the post.  In the Panel’s view, activity conducted on social media that could potentially alert one’s connections to the activity might be considered proactive dissemination of material.  In addition, an individual’s activity and associated content might appear in the individual’s list of activities on his/her LinkedIn profile page which was visible to his/her connections; an individual’s profile page was also potentially visible to others outside his/her network depending on the security settings.  The Panel considered it was likely that Alexion UK employees’ connections would include UK members of the public and might include UK health professionals.  The Panel noted that the LinkedIn post and associated press release was ‘liked’ by a number of Alexion UK employees.  In the Panel’s view the act of liking the material amounted to proactive dissemination of the material within the UK and brought it within the scope of the Code.

The Panel noted Alexion’s submission that the post and press release in question were factual, nonpromotional, corporate announcements relevant, in their entirety, to the investor community and that they originated from a LinkedIn account operated by Alexion Pharmaceuticals Inc. based in the US with no involvement of the UK affiliate.  The Panel noted Alexion’s submission that the post did not target UK users or directly mention the UK.  The Panel noted, however, that in liking the post, Alexion UK employees had, on the balance of probabilities, proactively disseminated it within the UK to an audience far wider than the intended financial community.

The Panel noted that the LinkedIn posting informed readers that Alexion had submitted an application for approval of ALXN1210 as a treatment for patients with paroxysmal nocturnal haemoglobinuria (PNH) in the European Union (EU).  The US filing and Japanese submission were also referred to.  The linked press release provided more detail.  It described the results of two large Phase 3 studies and included statements such as ‘We are excited about this next important step towards our goal of establishing ALXN1210 as the new standard of care for patients with PNH…’ and ‘Building on 10 years of proven efficacy and safety with Soliris and 25 years of leadership in complement biology...’.  Soliris (eculizumab) was an Alexion prescription only medicine, available in the UK, indicated in adults and children for the treatment of PNH.  Soliris was described in the press release as ‘a firstin-class complement inhibitor ...’ and ALXN1210 was described as an ‘innovative, long acting C5 inhibitor discovered and developed by Alexion ...’.  The press release also stated that Alexion and Soliris had received some of the pharmaceutical industry’s highest honours for medical innovation in complement inhibition. 

The Panel noted its comments above and considered that on the balance of probabilities not all the Alexion UK employees’ connections to whom the post might have been disseminated to by virtue of their ‘like’ would have been health professionals.  Thus, in the Panel’s view and on the balance of probabilities the LinkedIn post and associated press release had been disseminated to members of the public.

The Code prohibited the promotion of prescription only medicines to the public.  The Panel noted that the product, ALXN1210, was not classified as a prescription only medicine when the LinkedIn post and associated press release at issue were liked by the UK employee and on this very narrow technical point the Panel ruled no breach of the Code.

However, the Panel considered that the Alexion UK employees’ like of the LinkedIn post and associated press release regarding an unlicensed medicine and the potential subsequent dissemination to all of their connections meant that Alexion had failed to maintain high standards and a breach of the Code was ruled. 

The Panel considered that the Code required companies that wished to rely on prior permission to be able to demonstrate that recipients had agreed to receive promotional material by such means.  Nonetheless, the Panel noted that the complainant bore the burden of proof and considered that he/ she had not provided evidence to show that there had been a breach of the Code in this regard and no breach was ruled. 

The Panel noted Alexion’s submission that the Alexion Global Social Media Policy stated, inter alia, that employees were permitted to ‘like’ Alexion’s social media posts but might not provide further comment.  The Panel noted that Alexion was, however, reviewing the social media policy to see whether changes were necessary for the UK and might guide UK employees not to ‘like’ certain posts on social media in future.  The Panel was concerned that there appeared to be no UK specific guidance at the time of the complaint.  The Panel considered that the lack of adequate UK specific social media guidance at the time of the complaint meant that Alexion had failed to maintain high standards and a breach of the Code was ruled.

The Panel did not consider that the circumstances warranted a breach of Clause 2 which was used as a sign of particular censure and was reserved for such circumstances.  No breach of Clause 2 was ruled.