AUTH/3382/9/20 - Complainant v Chugai

Granocyte showreel YouTube video

  • Received
    10 September 2020
  • Case number
  • Applicable Code year
  • Completed
    29 March 2021
  • No breach Clause(s)
  • Additional sanctions
  • Appeal
    No appeal

Case Summary

A complainant, who described him/herself as a concerned UK health professional, alleged that a YouTube video (dated 2014, uploaded 2015) promoted Chugai Pharma UK Limited’s product, Granocyte (lenograstim). Granocyte was indicated for the reduction of the duration of neutropenia in certain patients and the mobilisation of peripheral blood progenitor cells.

The complainant queried why Chugai had placed the video on YouTube and left it promoting to the public for the last five years. The complainant doubted that the video had been recertified every two years and alleged that the prescribing information was missing.

The detailed response from Chugai is given below.

The Panel noted Chugai’s submission that the YouTube video in question featured a draft version of its October 2014 sales aid and that, seemingly without its knowledge, the video was created by a former (named) Chugai agency to showcase its work to potential new clients. The agency uploaded the video in September 2015 after the relationship between it and Chugai had ended. The Panel noted that claims for the Granocyte were visible and Chugai’s submission that it had not found any evidence that it had granted permission to use the content for showreel purposes.

The Panel noted Chugai’s submission that the text associated with the video on the agency’s website which described the concept of the campaign and which the Panel noted appeared to be within a tab entitled ‘Work’, provided evidence that the target audience was not the public. The Panel noted, however, from correspondence from the agency, that a webpage link was created for the video content but, to the best of the agency’s knowledge, it was never made live and the video was not part of its main website or linked to it.

The Panel understood that creative agencies would want to be able to show examples of their work. The Panel considered that there was a difference between putting examples of pharmaceutical promotional material on an advertising agency’s website, in a section clearly labelled in that regard and putting the same on open access YouTube which was not limited to professional use. In that regard, the Panel noted Chugai’s submission that YouTube had several settings for video storage including private settings so that videos could be hosted but only shared with named individuals via a private link.

The agency stated that the video was uploaded to YouTube as the means to show it but the video itself was always an unlisted link, which meant that it could not be found via standard search, subscriber feeds, user video tabs etc. The agency had intended for the video to be available only to named viewers for showreel purposes.

The Panel noted Chugai’s submission that the agency did not know that the unlisted video was visible on YouTube until it began its own investigation. It appeared not to have been available from the agency’s YouTube channel, but was unexpectedly ‘indexed’ by Google and could be found by searching Google for ‘Granocyte’ and then clicking on the ‘videos’ link. Chugai also noted that it could not find the video in YouTube alone by searching for the name of the agency, Granocyte or Chugai. It appeared to be available by using the specific link provided by the complainant. The Panel noted Chugai’s submission that the agency had now removed the video as well as the page content and all Google links to it.

The Panel noted Chugai’s submission that there was no deliberate intent by the agency or Chugai to make the video available to the general public.

The Panel noted that the complainant had not submitted his/her search strategy. The Panel considered that on the evidence before it, the balance of probabilities was that the video was not intended for general access as implied. It appeared that the complainant had accessed the video on an unlisted YouTube page which, unexpectedly and apparently unknown to Chugai or the agency, appeared to have been indexed by Google and had thus become searchable.

The Panel was concerned that it appeared that the agency had used pages of the draft Granocyte detail aid in the video at issue without Chugai’s knowledge. The agency appeared to use the video to showcase its work to individuals by sharing a specific URL for it be viewed on YouTube. In the Panel’s view, based on the evidence before it, the video was a showreel for a creative agency and was not being used as promotional material or material covered by the Code; the requirement to recertify the material if still in use was thus not relevant. No breach of the Code was ruled.

Although the Panel was concerned that material that did not appear to meet the requirements of the Code could be accessed by selecting the video links following a Google search, it seemed reasonable to consider the video as material intended for targeted individuals to showcase the agency’s work rather than being available widely to view on YouTube. That it had become more widely available was due to indexing by Google. The Panel thus decided that, in these circumstances, the lack of prescribing information did not amount to a breach of the Code as alleged. No beach was ruled.

Although it was unfortunate that it could be accessed via a Google search, despite only being intended for limited availability, the Panel decided that the video did not amount to Chugai promoting a prescription-only medicine to the public. No breach was ruled.

The Panel was concerned that indexing by Google, over which neither Chugai nor its agency had any control, meant that the video could be found via a Google search but, nonetheless, given its comments and rulings above, it considered that in the specific circumstances of this case the video was an agency showreel and, in that regard, Chugai had not failed to maintain high standards. No breach was ruled.