AUTH/3164/2/19: Anonymous v Merck Sharp & Dohme (A/B tested emails to MSD Connect) – No breach | PMCPA Case

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Key facts

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Case number	AUTH/3164/2/19
Parties	Anonymous complainant v Merck Sharp & Dohme
Issue	Alleged frequent and disguised promotional emails; alleged lack of prescribing information link on website
Emails	“Explore MSD Connect Today”; subject lines “Diabetes 101 – what’s new?” and “Diabetes Round-up”; reference GB-NON-00443
Channel	Email signposting to MSD Connect (promotional website)
Company explanation	A/B testing; third-party technical fault caused both variants to be sent to same recipients within seconds; A/B testing halted pending corrective actions
Applicable Code	2016
Clauses considered	4.1, 9.1, 12.1
Panel decision	No breach of Clauses 4.1, 9.1, 12.1
Complaint received	18 February 2019
Case completed	28 May 2019
Appeal	No appeal
Sanctions	None

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

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A UK health professional complained about receiving two almost identical emails from Merck Sharp & Dohme (MSD) within minutes of each other.
The emails were headed “Explore MSD Connect Today” and invited recipients to access information about MSD products, patient resources, and events.
The two emails had different subject lines (“Diabetes 101 – what’s new?” and “Diabetes Round-up”), which the complainant said did not indicate promotional content.
The complainant alleged the frequency was excessive and that it was not clear the emails were signposting to a promotional website.
The complainant also alleged there did not appear to be a link to prescribing information on the MSD Connect website.
MSD explained the emails were part of A/B testing run via agencies; due to a third-party technical fault, both subject-line variants were sent to the same recipients within seconds.
MSD stated that once on MSD Connect, prescribing information was available one click away, and it halted further A/B testing until corrective/preventative actions were taken.

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No breach of Clause 12.1 (disguised promotion) – the emails did not promote any specific medicine and were not considered disguised.
No breach of Clause 4.1 – no requirement for prescribing information in the emails because no specific medicine was promoted; and the complainant did not evidence that the website lacked prescribing information.
No breach of Clause 9.1 – despite the duplicate send caused by a third party, the Panel did not consider high standards had not been maintained in the particular circumstances.
No appeal.

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