Merz: Representative’s Instagram post with Bocouture pack shot ruled advertising a POM to the public

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Key facts

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Case	AUTH/3208/6/19
Complainant	Member of the public (worked for a body contouring company)
Company	Merz Pharma UK Ltd
Channel	Instagram
Product	Bocouture (botulinum toxin type A) – prescription-only medicine
Main issue	Pack shot of a POM included in an Instagram post; Panel found it was an advertisement viewable by the public
Complaint received	19 June 2019
Case completed	12 September 2019
Applicable Code year	2019
Breach clauses	9.1, 15.2, 26.1
No breach clauses	2
Appeal	No appeal
Sanctions	Undertaking received; additional sanctions not stated

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

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What happened

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A contactable member of the public complained that a Merz representative used an Instagram account (set up under the company’s name) to promote Bocouture (botulinum toxin type A), a prescription-only medicine (POM).
The Instagram profile contained a post primarily about Merz medical devices (Belotero and Radiesse) with a “summer ready” theme, but included a pack shot tile showing multiple packs, one of which was Bocouture.
The account was created for business purposes (including using Instagram direct messaging for logistics), which appeared contrary to Merz’s social media guidance in its company handbook.
Merz became aware internally on 13 June 2019; the account was checked only in “tile/grid view” and the Bocouture pack was not identified initially.
A junior employee was asked to check removal of images; due to workload and because the visible packs were thought to be medical devices, the check was not treated as urgent.
On 19 June 2019, when the Bocouture pack shot was identified on enlarging the tile, the matter was escalated and the representative was instructed to delete the profile; Merz received written confirmation of deletion that evening.
Merz asked all representatives to confirm by email that they did not hold active business social media accounts containing product details and conducted a wider audit; no other POM promotion was identified.
Merz argued the account was intended for colleagues/HCPs/decision makers, that followers were audited as such, and that the Bocouture pack image was small and not the focus of the caption (which referred to Belotero, a medical device).

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Outcome

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The Panel ruled the Instagram post was an advertisement and, on the balance of probabilities, the account was not private and could be viewed by anyone, including the public.
Breach found: advertising a POM to the public.
Breach found: representative failed to maintain a high standard of ethical conduct.
Breach found: company failed to maintain high standards due to inadequate initial review, delay in deletion, and reliance on junior staff to manage the issue.
No breach found: Clause 2 (industry brought into disrepute) was not established on the balance of probabilities.
No appeal.

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Merz: Representative’s Instagram post with Bocouture pack shot ruled advertising a POM to the public

Key facts

What happened

Outcome

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