Allergan social media tagging of HCP/clinic Instagram accounts mentioning Botox: no breach on appeal (AUTH/3441/12/20)

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Key facts

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Case	AUTH/3441/12/20
Parties	Contactable ex-employee v Allergan
Product	Botox (botulinum toxin type A)
Channel	Instagram (employee tagging/hashtags linking to HCP/clinic accounts)
Allegation	Promotion of a prescription only medicine to the public via tags/links to third-party posts mentioning Botox
Applicable Code year	2019
Clauses considered	2, 9.1, 26.1
Panel decision	Breach(es) ruled (including Clauses 26.1, 9.1 and 2) (later appealed)
Appeal outcome	No breach of the Code (appeal successful on all points)
Key reason on appeal	Insufficient evidence to establish chronology (whether third-party promotional content was present at the time of tagging/linking)
Complaint received	13 December 2020
Case completed	1 October 2021

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

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A contactable ex-employee complained that Allergan product specialists were using Instagram to tag/link to customers (health professionals/clinics) whose accounts contained posts mentioning Botox (a prescription only medicine).
The complainant provided screenshots from five Allergan product specialists’ Instagram accounts (said to be public) and screenshots from the tagged/referenced HCP/clinic accounts highlighting mentions of Botox.
The Panel considered that tags/links/hashtags can be part of a post and can amount to proactive dissemination, potentially directing members of the public to promotional POM content.
The Panel initially ruled that certain tags/hashtags directed the public to third-party posts that mentioned Botox (including one instance with an unlicensed indication claim and another that trivialised use), and therefore constituted promotion to the public.
Allergan appealed, arguing (among other points) that it should not be held responsible for third-party content and that the complainant had not established the necessary context/sequence.
The Appeal Board focused on chronology: whether the third-party promotional content was present on the linked account at the time the Allergan employee made the tag/link.

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Final outcome (Appeal Board): No breach of the Code.
The Appeal Board ruled there was insufficient evidence to establish the chronology (ie whether the third-party Botox-related content was present/visible at the point the Allergan employee tagged/linked), so the complainant did not discharge the burden of proof.
As a result, the Appeal Board overturned the Panel’s findings and ruled no breach of Clauses 26.1, 9.1 and 2.
Despite the no-breach outcome, the Appeal Board stated it was very concerned in general about Allergan employees linking to HCP social media material, noting social media is often used by young people.

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