AUTH/3583/11/21: Instagram ‘awards’ story featuring Itulazax imagery — no breach after appeal (ALK-Abelló) | PMCPA Case

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Key facts

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Case number	AUTH/3583/11/21
Parties	Complainant v ALK-Abelló Ltd
Product	Itulazax (Betula verrucosa)
Channel	Instagram Story (creative agency account)
Allegation	Promotion/advertising of a prescription only medicine to the public
Applicable Code year	2021
Clause(s) cited	Clause 3.2
Panel decision	Breach of Clause 3.2 (ruled)
Appeal	Appeal by the respondent; successful
Final decision	No breach of the Code
Key reasoning on appeal	Agency acted without ALK-Abelló’s authority; contract ended >16 months earlier; no consent/notification
Story timing	Posted 18 November 2021; removed 19 November 2021 (on notification)
Story views	481 (stated by the creative agency)
Complaint received	18 November 2021
Case completed	16 June 2022

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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 complainant (agency employee) complained about Instagram advertisements for Itulazax (Betula verrucosa) posted by a UK-based creative agency and said the public could view readable product/claims/company details.
The Instagram content was an agency “Story” celebrating success at an advertising awards competition (2021). It contained 10 frames; frames 3 and 4 referenced Itulazax.
Frames 3 and 4 included ALK-Abelló’s corporate logo, the Itulazax brand logo and tagline “Reconnect with nature”, plus claims including: “This season’s must have” and “Finally, a new highly effective and convenient treatment option for tree pollen allergy sufferers. Just one daily SLIT-tablet can provide clinical benefits across the extended tree pollen season”.
ALK-Abelló said the agency had been contracted by ALK-Abelló Global Marketing (Denmark) to develop promotional imagery for a European launch; the contract ran 2017–July 2020 and was not extended.
ALK-Abelló said the agency entered the Itulazax imagery into the awards and posted the Instagram Story without consent/permission/approval and without notifying ALK-Abelló.
The agency confirmed ALK-Abelló had no prior knowledge or involvement, took responsibility, and removed the Story promptly after notification (posted 18 Nov 2021; removed 19 Nov 2021). Total view count stated as 481.
ALK-Abelló’s investigation found the agency had retained imagery on an old server which a junior team member accessed, despite prior confirmation that copies had been returned/deleted at contract end.

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Outcome

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Final outcome (after appeal): No breach of the Code.
The Panel initially ruled a breach of Clause 3.2 (promotion of a prescription only medicine to the public) based on the Instagram Story content and audience.
ALK-Abelló appealed.
The Appeal Board ruled that, in the particular circumstances, the creative agency had not acted with ALK-Abelló’s authority (as per the Code’s definition of promotion) and therefore ALK-Abelló had not promoted Itulazax to the public; no breach of Clause 3.2.

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AUTH/3583/11/21: Instagram ‘awards’ story featuring Itulazax imagery — no breach after appeal (ALK-Abelló)

Key facts

What happened

Outcome

Clauses

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