AUTH/3431/11/20 - Complainant v Allergan

Alleged promotion of Botox on LinkedIn and alleged breach of undertaking

  • Received
    20 November 2021
  • Case number
    AUTH/3431/11/20
  • Applicable Code year
    2019
  • Completed
    29 October 2021
  • No breach Clause(s)
  • Breach Clause(s)
  • Sanctions applied
    Undertaking received
  • Additional sanctions
    Advertisement
    Public reprimand
  • Appeal
    Respondent appeal

Case Summary

A complainant who described him/herself as a doctor practising in the field of aesthetics, complained about the promotion of Botox (botulinum toxin type A) on social media by Allergan Limited.

In support of his/her complaint, the complainant provided a number of screenshots of social media posts which had been ‘liked’ or commented on and shared by Allergan employees.

The complainant noted that he/she had written to the Authority in December 2019 with concerns about the company’s de-medicalisation of the medical aesthetics industry and its cavalier approach to promoting its brands to health professionals and patients. The complainant had previously submitted the complaint in Case AUTH/3291/12/19 and referred to the undertaking given in that case.

The complainant submitted that the Authority’s response in March 2020 suggested that ‘Allergan advised reposting/sharing content on social media would be [made] a formal SOP [standard operating procedure] and rolled out to relevant staff’.

The complainant appreciated that changes within a large organisation like Allergan might take time but was concerned that this had still not been achieved.

Two of the screenshots provided by the complainant included five separate LinkedIn posts which had originally been posted by the same GP/chief executive officer (CEO) of an aesthetics clinic who was described in his/her profile as an ‘Allergan mentee’. Two of his/her posts had been ‘liked’ by a named Allergan product specialist and three ‘liked’ by a named Allergan area sales manager, respectively.

The first LinkedIn post ‘liked’ by the named product specialist discussed men’s treatments and included, inter alia, reference to ‘Brotox: To soften fine lines and wrinkles’, a shoutout to @[named individual] who had come to the clinic for some subtle ‘Brotox’ and a number of hashtags including #Brotox and #botox. The second LinkedIn post ‘liked’ by the same individual discussed booking an appointment at one of the group’s clinics and included the hashtag, #Botox.

The complainant submitted that this was active promotion of Botox through re-sharing of the GP/CEO’s posts on social media. The complainant noted that whilst the re-sharing took place in 2019, he/she found it unusual that Allergan had not included a full review of all social media activity within the formal SOP that it had rolled out to relevant staff with a requirement to remove and delete any activity that promoted prescription only medicines to the general public. The complainant stated that not only did the first post actively promote Botox through the inclusion of hashtags, references to ‘Brotox’ for men, it demonstrated again Allergan’s endorsement of the trivialisation of prescription only medicines within medical aesthetics.

The complainant stated that a named area sales manager, like the above product specialist, endorsed the GP/CEO’s activity on social media. Two of the GP/CEO’s LinkedIn posts ‘liked’ by the named area sales manager discussed the birthday of the organisation’s flagship clinic and the second of those two posts promoted a prize of a free lip enhancement to one reader to celebrate the occasion; only the first post included the hashtag, #Botox. In this regard, the complainant noted that whilst lip enhancement was not a prescription only medicine, the General Medical Council (GMC) was quite clear that doctors should not allow any financial or commercial interests to adversely affect standards of good patient care and in that regard he/she submitted that Allergan’s association with doctors who were comfortable to cross the line of good medical practice further supported his/her original concern about the company’s de-medicalisation of medical aesthetics. The third LinkedIn post ‘liked’ by the same area sales manager included #Botox and discussed the fact that the [named clinic group] was a finalist in one of the categories of an aesthetics awards.

The complainant submitted that either Allergan’s SOP on the use and engagement with social media was not fit for purpose, it simply did not consider this an important area of its business or perhaps it did not understand its obligations as a pharmaceutical manufacturer.

The complainant noted that the area sales manager referred to above did not seem satisfied in endorsing Allergan’s Botox brand alone but was also keen to promote and endorse that of a competitor botulinum toxin. A screenshot was provided of what appeared to be a LinkedIn post from a sales manager at another named company which stated ‘Countdown is on…’ and included an image of the competitor botulinum toxin’s exhibition stand at a conference which had been ‘liked’ by the Allergan area sales manager. The complainant alleged that this again suggested that Allergan’s SOP on the use of, and engagement with, social media was seriously lacking and training of its staff inappropriate.

The complainant provided a screenshot which showed that a second named area sales manager appeared to have shared a LinkedIn post from a senior area sales manager at Allergan Aesthetics which included information about CoolSculpting and CoolTone. In that regard, the complainant noted that Allergan did not feel it was necessary to review the social media activity of an employee who had acted inappropriately within the complainant’s last complaint. In response to Case AUTH/3291/12/19 Allergan stated that ‘it was acceptable in principle to promote medical devices to members of the public’. The complainant stated that whilst he/she did not dispute that, the company’s training around its policies appeared to be substandard and its team’s attention to detail was low. The complainant noted that the image provided within the post about CoolSculpting clearly showed reference to Botox on an Allergan exhibition stand. The complainant noted that whilst the promotional draw was Coolsculpting and Allergan had previously stated that it had no intention to promote Botox or other prescription only medicines to the public through social media or any other platforms, this was not the sentiment of its employees.

The complainant noted that the second area sales manager also deemed it acceptable to endorse Botox treatments again through hashtags and provided a screenshot showing that he/she had ‘liked’ a LinkedIn post by a cosmetic physician and CEO of a named academy. The post described the partnership between the academy and Allergan as a Tier 1 preferred training partner. The post stated, inter alia, ‘Being in partnership with the leading brands allows us to deliver the highest quality of education to our trainees, and the best treatments possible for our patients’ and thanked @allergan_medical_institute for its support and included the hashtags, #botox and #allergan.

The complainant further noted that on 6 March 2020 a second named product specialist was photographed with a named clinician from a named aesthetics clinic. The photograph was published on the clinic’s Instagram account (screenshot provided). The clinician’s Instagram post on his/her clinic’s account was headed #botox[named area] and below the photograph stated ‘Lovely to see @[named Allergan product specialist] this lunchtime at [geographical area] clinic for a catch up and to develop the business plans for 2020 for [named clinic]. Allergan (the makers of Botox and Juvederm) have been our partners for years and their support is invaluable in teaching, training and supporting our business to deliver the highest quality of service to our lovely clients’. The hashtags included, inter alia, #botoxandfillers and eight hashtags stating ‘botox’ followed by a named geographical area. The complainant stated that the number of references to Botox and number of hashtags captured in the customer’s Instagram post were quite remarkable and suggested that Allergan’s processes and training were suboptimal.

The complainant stated that with the employee in question’s own Allergan active Instagram account set to public, he/she could not have failed to notice that he/she had been tagged in a customer’s post particularly given he/she had also tagged the customer in a post on his/her own Allergan Instagram account. The employee’s Instagram post included the photograph referred to above and stated ‘Exciting meeting with @[named health professional] and the team at @[named clinic] today!’ and included three hashtags related to Juvederm.

The complainant stated that given all of the above, he/she wondered whether Allergan had engaged with the PMCPA or whether he/she should simply accept that the company would act to its own code of conduct, ignoring UK legal parameters.

The detailed response from Allergan is given below.

The Panel noted that the complainant in this case was also the complainant in Case AUTH/3291/12/19 in which Allergan was ruled in breach of the Code for promoting Botox to the public via its corporate Juvederm Instagram account and via the personal Instagram accounts of two of its employees. The company accepted the Panel’s rulings in that case and provided its undertaking on 16 March 2020.

The Panel noted that whilst it was not possible to identify the date that Allergan employees had ‘liked’ the various LinkedIn posts highlighted by the complainant, the screenshots provided by the complainant showed that the original posts appeared to be at least 11 months old when the complaint was submitted – ie they had been posted before Allergan had provided its undertaking in Case AUTH/3291/12/19. The Panel further noted Allergan’s submission that discussions with the employees involved confirmed that any interaction they had would have occurred at the time of the initial third party post, and not any time since then. Further, the Panel noted that it could be seen from the screenshots provided by the complainant that the second area sales manager had commented and shared the post regarding CoolSculpting and CoolTone a year before the complaint (made in November 2020) was submitted to the PMCPA and the Instagram activity example provided by the complainant had occurred on 6 March 2020. The Panel noted that the complainant had acknowledged that the re-sharing of some posts had occurred in 2019 and that he/she found it unusual that Allergan had not included a full review of all social media activity within its SOP with a requirement to remove and delete any historical activity that promoted prescription only medicines to the general public.

The Panel noted that as a result of the undertaking given in Case AUTH/3291/12/19, Allergan had given an assurance that it would, forthwith, take all possible steps to avoid similar breaches of the Code occurring in the future.

The Panel noted Allergan’s submission that senior leaders had sent numerous communications to UK employees reminding them of the requirements related to social media activities, along with a short one-page reference guide for social media activity, actions which appeared to have been taken in relation to Case AUTH/3291/12/19.
Readers were asked to respond to confirm that they had read, understood and acknowledged the email by clicking on a tab within it by 15 January 2020. The Panel further noted that details of Case AUTH/3291/12/19 were emailed to staff in September 2020 and stated that in response to that case Allergan had taken swift action to remove the posts (before the complaint was received) and reminded staff of the requirements in relation to social media policies and stated that it had re-issued the Reference Guide to Social Media to all employees which was attached to the email. The email further stated that Allergan had reviewed the social media training and that a series of initiatives would be introduced in the UK in the coming weeks.

The Panel further noted that the Allergan UK Employee Social Media Policy (UKIE-COMPL-POL-002) version 1 had been approved on 17 November 2020. The Panel noted that this policy stated that readers should not endorse, recommend, or otherwise refer consumers (or social media users) to a specific medical practice or health professional. It further listed examples of what posts should comply with which included that if a post contained links the reader must know to where those links led and be sure that the link destinations were acceptable. It further stated that particular care must be taken to check that link destinations did not contain any reference to a prescription only medicine or to websites which had not been approved for UK use for example global company websites.

The Panel noted Allergan’s submission that it had ensured that the employees whose social media actions had been referred to by the complainant had removed all similar posts and reversed any social media activity, as far as practicably possible. It appeared to the Panel that this had only occurred following receipt of the current complaint (Case AUTH/3431/11/20). In the Panel’s view, Allergan would have been well advised to have carried out this activity following Case AUTH/3291/12/19 to ensure that all of its employees had removed all similar posts and reversed any social media activity at that time that was not in line with the requirements of the Code.

Nonetheless, given that the undertaking referred to future activity the Panel considered that Allergan had not breached the terms of its undertaking. The undertaking was provided on 16 March 2020 and there was no evidence that any of the social media activity highlighted by the complainant in this case had occurred after that date; it all appeared to be historical activity. No breach of the Code was ruled and thus the Panel also ruled no breaches of the Code.

The Panel noted that the social media activity in question in this case involved either LinkedIn or Instagram.

The Panel noted that one of the LinkedIn posts by a health professional who described him/herself as an ‘Allergan mentee’ and which was ‘liked’ by the first named Allergan product specialist when referring to the use of Botox in men, referred to the medicine as ‘Brotox’. The post referred to the use of ‘Brotox’ to soften fine lines and wrinkles. Further the hashtags, #botox and #Brotox were included within the LinkedIn post. The post referred to Botox and its indication and included reference to #botox and #Brotox which would direct readers to their related hashtag feeds which were likely to contain posts that promoted Botox. The Panel considered that in ‘liking’ the LinkedIn post and, on the balance of probabilities, proactively distributing it to his/her connections on LinkedIn which would likely include individuals who did not meet the Code’s definition of a health professional or other relevant decision maker, the Allergan employee had promoted Botox, a prescription only medicine, to the public. A breach of the Code was ruled.

The Panel further considered that by ‘liking’ the post the product specialist had endorsed the use of the term ‘Brotox’, which in its view trivialised the use of a prescription only medicine as alleged. In that regard, high standards had not been maintained and a breach of the Code was ruled.

The Panel noted that the second LinkedIn post by the same health professional and ‘liked’ by the same product specialist was regarding booking an appointment at one of the group’s aesthetics clinics and included the hashtag, #Botox. The Panel noted that whilst no indication was included within the health professional’s post at issue, the indication of Botox was widely known, including to members of the public, and thus, in the Panel’s view, mention of Botox in itself was promotional. The Panel further noted that the hashtag would direct readers to the Botox hashtag feed which was likely to contain posts that promoted Botox. The Panel noted that in ‘liking’ the LinkedIn post and, on the balance of probabilities, proactively distributing it to his/her connections on LinkedIn, which would likely include individuals who did not meet the Code’s definition of a health professional or other relevant decision maker, the Allergan employee had promoted Botox, a prescription only medicine, to the public. The Panel ruled a breach of the Code.

The Panel noted that three LinkedIn posts ‘liked’ by the first area sales manager were originally posted by the same health professional who created the LinkedIn posts above.

The Panel noted the complainant’s concern that an Allergan employee in ‘liking’ one of the posts had engaged with a health professional who promoted the prize of a free lip enhancement to celebrate the birthday of one of his/her clinics. Whilst the Panel queried whether this was an appropriate post for a pharmaceutical company employee to engage with, it noted that as lip enhancement did not involve the use of a prescription only medicine, as acknowledged by the complainant, reference to such a procedure did not fall within the scope of the Code. The Panel therefore ruled no breach of the Code in relation to the Allergan employee’s ‘like’ of the LinkedIn post in question.

The Panel noted that the further two LinkedIn posts by the same health professional and ‘liked’ by the same area sales manager, one also relating to the above clinic’s birthday and the other relating to the group of clinics being a finalist in the clinic of the year category at an awards ceremony, both included the hashtag, #Botox. The Panel noted that whilst no indication was included within the health professional’s post at issue, the indication of Botox was widely known, including to members of the public, and thus, in the Panel’s view, mention of Botox in itself was promotional. The Panel further noted that the hashtag would direct readers to the Botox hashtag feed which was likely to contain posts that promoted Botox. The Panel noted that in ‘liking’ the two posts and, on the balance of probabilities, proactively distributing them to his/her connections on LinkedIn, which would likely include individuals who did not meet the Code’s definition of a health professional or other relevant decision maker, the Allergan employee had promoted Botox, a prescription only medicine, to the public. The Panel ruled a breach of the Code in relation to each post.

The Panel noted that the same area sales manager had ‘liked’ a LinkedIn post by a manager of another pharmaceutical company which stated ‘Countdown is on…’ and included an image of a Nabota conference stand. Nabota was another botulinum toxin which did not appear to be an Allergan product; the Panel had no information before it regarding where the conference in question had been held and whether Nabota was licensed in the UK or elsewhere. The Panel considered that although the LinkedIn post had been ‘liked’ and thus, on the balance of probabilities, proactively distributed by an Allergan employee to his/her connections, which would likely include individuals who did not meet the Code’s definition of a health professional or other relevant decision maker, there was no evidence that the Allergan employee had promoted one of Allergan’s prescription only medicines to the public and thus no breach of the Code was ruled.

The Panel noted that a second area sales manager created a LinkedIn post by commenting ‘Now that’s cool!!’ and sharing an original LinkedIn post by an Allergan Aesthetics senior area sales manager. The Panel noted the complainant’s concern that the image within the original LinkedIn post about CoolSculpting clearly showed reference to Botox on an Allergan exhibition stand. The Panel noted that the reference to Botox was small and almost illegible in the background of the image provided by the complainant. Therefore, in the Panel’s view, the complainant had not discharged his/her burden of proof that the Allergan employee’s proactive distribution of the original post to his/her connections on LinkedIn, which would likely include individuals who did not meet the Code’s definition of a health professional or other relevant decision maker, had constituted the promotion of a prescription only medicine to the public and no breach of the Code was ruled in relation to that post.

The Panel noted that the second area sales manager had also ‘liked’ a LinkedIn post from a cosmetic physician and CEO of a named academy describing the partnership between the academy and Allergan as a ‘Tier 1 preferred training partner’. The post stated, inter alia, ‘Being in partnership with the leading brands allows us to deliver the highest quality of education to our trainees, and the best treatments possible for our patients’ and thanked @allergan_medical_institute for its support and included the hashtags, #botox and #allergan. The post referred to being in partnership with leading brands when referring to Allergan allowing the academy to deliver the best treatments possible for patients which in the Panel’s view were promotional claims for Allergan’s medicines including Botox. Further the post included the hashtag, #botox which would direct readers to the hashtag feed which was likely to contain posts that promoted Botox. The Panel considered that in ‘liking’ the LinkedIn post and, on the balance of probabilities, proactively distributing it on LinkedIn to his/her connections, which would likely include individuals who did not meet the Code’s definition of a health professional or other relevant decision maker, the Allergan employee had promoted Botox, a prescription only medicine, to the public. A breach of the Code was ruled.

The Panel noted that a second product specialist was tagged in a named clinician’s Instagram post on his/her clinics account which included a photograph of the clinician and the product specialist. The clinician’s Instagram post was headed ‘#botox[named area]’ followed by the photograph. Below the photograph, the post stated [named health professional’s Instagram user name] ‘Lovely to see @[named Allergan employee] this lunchtime at the [geographical area] clinic for a catch up and to develop the business plans for 2020 for [named clinic]. Allergan (the makers of Botox and Juvederm) have been our partners for years and their support is invaluable in teaching, training and supporting our business to deliver the highest quality of service to our lovely clients’. The hashtags included, inter alia, #facialaesthetics, #botoxandfillers and eight hashtags stating ‘botox’ followed by a named geographical area.

In the Panel’s view, whilst the Allergan employee would be notified when tagged, the Panel did not consider that this automatically meant that Allergan or its employee could, in those circumstances, be held responsible for the clinician’s post. Whilst the Panel understood that an individual might not be able to prevent him/herself from being tagged in other individuals’ posts, it appeared that if a user wanted to prevent tagged photographs from automatically being added to his/her page there was a setting that allowed a user to manually add the photograph or hide it from their profile page. The Panel noted, however, that individuals had total control over whether or not to tag others in their posts. In that regard, the Panel noted that companies/employees that included tags as part of their posts, as in the above, and therefore directed members of the public to other accounts, needed to be satisfied that the content on those accounts was reasonable as far as the Code was concerned. If that were not the case, then companies/employees would be able to direct readers to independent profiles and the posts on them as a means of circumventing the Code.

In that regard, the Panel noted that the Allegan employee’s Instagram account included a post which contained the same photograph as above and whilst it only referred to Juvederm, which was not a prescription only medicine, the employee’s Instagram post also included a tag to the named clinician which if clicked appeared to take readers to his/her clinic’s account where the post above could be viewed without having to follow the account.

The Panel considered that in tagging the clinician in his/her Instagram post and thus directing readers to the clinician’s clinic’s social media account the Allergan employee had promoted a prescription only medicine to the public. The clinician’s post included reference to Botox within the wording of the post. The Panel noted that whilst no indication was included within the health professional’s post at issue, the indication of Botox was widely known, including to members of the public, and thus, in the Panel’s view, mention of Botox in itself was promotional. The Panel further noted that the post included a number of hashtags which would direct readers to the respective hashtag feeds which were likely to contain posts that promoted Botox. A breach of the Code was ruled which was successfully appealed.

The Panel noted its comments and rulings above and considered that Allergan had failed to maintain high standards and a breach of the Code was ruled. Further, the Panel was extremely concerned that Allergan employees had either directed others to or had proactively distributed posts that promoted a prescription only medicine on social media; it was particularly concerned about the terminology used in some of those posts. The Panel acknowledged that while the Allergan employees might be involved in the promotion of products which were not covered by the Code, eg Juvederm, some would likely also be responsible for the promotion of Botox, a prescription only medicine which was covered by the Code. The Panel noted its comments and rulings above and considered that in promoting prescription only medicines to the public and trivialising aesthetic medicine Allergan had reduced confidence in, and brought discredit upon, the pharmaceutical industry. A breach of the Code was ruled.

On appeal by Allergan, the Appeal Board upheld all but one of the Panel’s rulings of breaches of the Code in relation to advertising to the public and upheld the Panel’s ruling that high standards had not been maintained. Thus, all but one of the appeals on these points were not successful.

The Appeal Board noted that social media was often used by young people. The Appeal Board was extremely concerned that Allergan employees had either directed others to or had proactively distributed posts that promoted a prescription only medicine to the public on social media; it was particularly concerned about the terminology used in some of the posts. The Appeal Board considered that in the repeated promotion of a prescription only medicine to the public and trivialising the use of a prescription only medicine Allergan had reduced confidence in, and brought discredit upon, the pharmaceutical industry. The Appeal Board upheld the Panel’s ruling of a breach of Clause 2. The appeal on this point was not successful.

Taking all the circumstances into account the Appeal Board decided that in accordance with Paragraph 11.3 of the Constitution and Procedure, Allergan should be publicly reprimanded for its widespread use of social media which promoted a prescription only medicine to the public.