Goldshield: unsolicited promotional email sent via agency to GP’s NHS address (MacroBid)

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Key facts

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Case number	AUTH/2089/1/08
Case reference	AUTH/2089/1/08 (Code of Practice Review November 2008)
Complainant	General practitioner
Respondent/company	Goldshield Pharmaceuticals
Product(s)	MacroBid (nitrofurantoin)
Material/channel	Email (sent via an agency) to NHS email address
Key issue	Unsolicited promotional email sent without prior, fully informed consent; company responsibility for third-party activity
Dates (received/completed if stated)	Complaint received 25 January 2008; Undertaking received 14 July 2008; Case completed 16 July 2008
Appeal	Yes; Goldshield appeal unsuccessful (breach upheld)
Code year	2006 (Constitution and Procedure referenced); Code clause cited: 9.9
Breaches/clauses	Clause 9.9
Sanctions	No explicit additional sanctions stated beyond undertaking/assurance requirements and Appeal Board warning regarding future procedural compliance

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

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What happened

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A general practitioner complained that Goldshield Pharmaceuticals, via an agency, sent an unsolicited email about MacroBid (nitrofurantoin) to the GP’s NHS email address.
The GP said the NHS email was a working address and that advertising/infomercial emails would degrade its utility.
The GP stated he had not knowingly signed up to receive information from Goldshield or any other pharmaceutical company and that the email was unwelcome; the ability to unsubscribe did not excuse the activity.
Goldshield said it sponsored four “educational emails” produced by an agency and sent to health workers on the agency’s database; two had been sent (September 2007 on pain management; January 2008 on urinary tract infection in the community—the email in question).
Goldshield said the agency obtained permission via a two-step process: a telephone script describing that the agency would email details about its “affiliates’ products and services” including “medical, pharmaceutical and promotional materials,” followed by a confirmatory email and website access-code registration.
The Panel considered the MacroBid email to be clearly promotional and noted companies are responsible under the Code for work undertaken by third parties on their behalf.
The Panel found the agency wording did not make it abundantly clear that promotional material from pharmaceutical companies would be sent, and that describing pharmaceutical companies as the agency’s “affiliates” was misleading in context.

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Outcome

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The Panel ruled the email was unsolicited because there was no evidence the complainant gave prior, fully informed consent to receive promotional material by email; breach of Clause 9.9 was found.
Goldshield appealed; the Appeal Board upheld the breach of Clause 9.9 on the balance of probabilities and the appeal was unsuccessful.
The Authority later reported Goldshield to the Appeal Board for failing to provide the requisite undertaking and assurance within the required timeframe; an amended signed undertaking was subsequently provided.
The Appeal Board decided not to take further action at that stage because Goldshield had stopped the activity in question, but warned future non-compliance with Constitution and Procedure could affect its inclusion on the list of non-members that complied with the Code.

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Key facts

What happened

Outcome

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