AUTH/2805/12/15: Bayer v Guerbet — contrast injector “loan” deals and Clause 2 discredit | PMCPA Case

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Key facts

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Case number	AUTH/2805/12/15
Parties	Bayer plc v Guerbet Laboratories Ltd
Issue	Offer/provision of radiological contrast injectors on “loan”/“free of charge” linked to defined-spend/commitment to purchase contrast media
Complaint received	1 December 2015
Case completed	4 May 2016
Applicable Code	Considered under 2016 version (clauses identical in 2015 and 2016)
Panel findings	No breach Clause 18.1; Breach Clause 2
Sanctions	Undertaking received; Advertisement
Appeal	No appeal
Equipment value (as alleged)	£20,000–£35,000 (Bayer’s estimate)
Example agreement term	5-year commitment to buy contrast media; injector described as “free of charge and on loan”; Guerbet agreed not to increase contrast prices for 5 years

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

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What happened

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Bayer complained that Guerbet (and others) offered radiological contrast injection equipment on long-term loan or as a gift to customers who agreed to purchase the company’s contrast agent.
Bayer relied on a purchasing organisation implementation brief stating suppliers (including Guerbet) were offering injector loans as part of a framework agreement based on a defined-spend value through the supplier’s contrast.
Bayer alleged this amounted to a gift/benefit offered as an inducement to prescribe/supply/administer/recommend/buy/sell medicines (Clause 18.1) and would bring discredit on the industry (Clause 2).
Guerbet said injectors were not gifts and not on long-term loan: they remained Guerbet property; NHS customers could return them and stop buying Guerbet contrast at any time; defined-spend was based on departmental workload.
The Panel reviewed an example contract letter describing provision of a second soft bag injector “free of charge and on loan”, with a 5-year commitment: Guerbet would not increase contrast prices for 5 years and the hospital would commit to buying the range of contrast media required for the equipment for 5 years.
The Panel noted the injector could be used with other companies’ contrast media and that such use was common due to Guerbet supply issues.
The Panel considered that continued loan appeared dependent on achieving a minimum annual defined-spend on Guerbet medicines, and that a 5-year “loan” raised questions about whether it was effectively a gift under the Code’s supplementary information.

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Outcome

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No breach of Clause 18.1: despite concerns about fairness/reasonableness of the arrangements, the Panel was obliged to rule no breach because it had previously been decided Clause 18.1 applied to individuals rather than organisations and there was no evidence of benefit to an individual.
Breach of Clause 2: the Panel considered spend-conditional injector loans unacceptable and ruled the arrangements brought discredit upon and reduced confidence in the pharmaceutical industry.
No appeal.

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AUTH/2805/12/15: Bayer v Guerbet — contrast injector “loan” deals and Clause 2 discredit

Key facts

What happened

Outcome

Clauses

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