Bracco letter about US court case found misleading and disparaging (AUTH/2239/6/09)

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Key facts

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Case number	AUTH/2239/6/09
Parties	Consultant radiologist v Bracco UK Ltd
Material	Unsolicited letter to radiology health professionals (dated 21 April 2009)
Audience / distribution	3,221 UK health professionals in radiology
Complaint received	10 June 2009
Case completed	14 July 2009
Applicable Code year	2008
Breach clauses	7.2, 8.1, 9.1
Clause 2	Not breached (considered but not ruled)
Appeal	No appeal
Sanctions	Undertaking received; additional sanctions not stated
Main issue	Misleading, unbalanced summary of US court case; omission of context/counterclaim; disparagement of competitor; high standards

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

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What happened

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A hospital consultant radiologist complained about an unsolicited letter dated 21 April 2009 from Bracco UK Ltd.
The complainant alleged the letter was sent to radiology centres across the UK to inform clinicians about the outcome of a US legal case involving Bracco and GE Healthcare.
The complainant said the letter presented only aspects positive for Bracco and negative for GE Healthcare, while omitting judicial criticisms of Bracco.
The complainant also alleged the letter implied GE Healthcare was misleading clinicians “everywhere”, despite the activities being US-based and historical, while negative aspects for Bracco related to studies still used to promote products in the UK.
Bracco stated the letter was sent to 3,221 UK radiology health professionals and had been approved via internal clearance procedures.
The Panel considered the letter promotional for Bracco products (it referred to Bracco’s low osmolar contrast media, though no products were named).
The Panel found the letter implied the US court order said GE Healthcare used “very aggressive marketing techniques” (the order did not).
The Panel found the letter stated GE Healthcare was ordered to pay $11.4m, but the actual amount was $11,376,500, and the letter did not make clear this related to Bracco’s corrective advertising costs and that no other damages were awarded.
The Panel noted the letter omitted that GE Healthcare was not entitled to injunctive relief because Bracco had discontinued advertisements alleged to be false in GE’s counterclaim.
The Panel noted the letter gave no indication of the relevance of the US action to the UK and did not state where or when GE Healthcare disseminated the misleading claims.

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Outcome

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Breach of Clause 7.2 (misleading and unfair due to inaccurate/insufficient information about the case, order and counterclaim).
Breach of Clause 8.1 (misleading account disparaged GE Healthcare).
Breach of Clause 9.1 (high standards not maintained).
No breach of Clause 2 (Panel concerned but did not consider the circumstances warranted Clause 2 censure).
No appeal.

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Key facts

What happened

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