Roche breached Clause 9.9 after GP received unsolicited promotional email about Tamiflu via an agency (AUTH/2083/1/08)

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Key facts

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Case number	AUTH/2083/1/08
Complainant	General practitioner
Company	Roche Products Limited
Product	Tamiflu (oseltamivir)
Issue	Unsolicited promotional email sent to an NHS email address via an agency
Applicable Code year	2006
Complaint received	24 January 2008
Case completed	22 February 2008
Appeal	No appeal
Breach clauses	Clause 9.9
Sanctions	Undertaking received; Additional sanctions: Not stated

Reviewed by Dr Anzal Qurbain (FFPM) — ABPI Final Signatory

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A general practitioner (GP) received an unsolicited email about Tamiflu (oseltamivir) to their NHS email address.
The email was sent by Roche Products Limited via a third-party agency.
The GP said they had not knowingly signed up to receive information from Roche (or any pharma company) and considered the email unwelcome “SPAM”; an unsubscribe option did not, in their view, excuse the activity.
Roche said it used an agency specialising in electronic communications and believed recipients had previously consented via a telephone script and subsequent opt-in/confirmation steps.
The Panel reviewed the agency’s telephone script, which referred to sending information about the agency’s “affiliates’ products and services” including “diagnostic, medical, pharmaceutical and promotional materials”.
The Panel considered the wording did not make it abundantly clear that promotional material from pharmaceutical companies would be sent, and that pharma companies would not reasonably be understood as the agency’s “affiliates”.

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The Panel ruled the Tamiflu email was promotional.
The Panel ruled the email was unsolicited because there was no evidence of prior, fully informed consent to receive promotional emails from a pharmaceutical company.
Breach ruled: Clause 9.9.
No appeal.

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