MSD: employees’ LinkedIn ‘likes’ of NHS post about pembrolizumab ruled promotion to the public (AUTH/3710/11/22)

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Key facts

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Case	AUTH/3710/11/22
Company	Merck Sharp & Dohme Limited
Product	Pembrolizumab
Channel	LinkedIn (third-party post by NHS England senior leader)
Main issue	Employees ‘liking’ a public post about a POM, including “cancer-free” patient story, treated as promotion to the public
Reactions/engagement	530+ reactions; nine current employees and one ex-employee ‘liked’
Applicable Code	2021
Breach clauses	Clause 5.1; Clause 26.1; Clause 26.2 (for nine current employees’ ‘likes’)
No breach clauses	Clause 2 (overall); Clause 5.1, 26.1, 26.2 (ex-employee)
Sanctions	Undertaking received; Additional sanctions: Not stated
Complaint received	21 November 2022
Case completed	3 January 2024
Appeal	No appeal

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

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A concerned health professional complained about a LinkedIn post (by a senior leader from NHS England) that was ‘liked’ by Merck Sharp & Dohme (MSD) staff based in the UK.
The post followed NICE’s recommendation (8 Nov 2022) of pembrolizumab as an option for people with triple-negative breast cancer and referenced efficacy plus a patient case study stating the patient was “now cancer-free”.
The post signposted readers to a BBC news article: “NHS reaches deal for life-saving breast-cancer drug”.
MSD identified that nine current MSD UK employees and one ex-employee had ‘liked’ the post (the post had 530+ reactions).
MSD instructed the nine current employees to ‘unlike’ the post; MSD stated they all did so and it triggered its “Management of actual or potential noncompliance” procedure.
The ex-employee had left MSD UK on 31 March 2022 but had not updated their LinkedIn profile; MSD said it would add an explicit off-boarding requirement for leavers to update public profiles.

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Nine current employees’ ‘likes’: Breach of Clause 5.1, Clause 26.1 and Clause 26.2 (2021 Code).
Ex-employee’s ‘like’: No breach of Clause 5.1, Clause 26.1 and Clause 26.2 (company not responsible in the particular circumstances as the individual had left ~7 months earlier).
Clause 2 (overall): No breach (Panel did not consider the circumstances warranted the particular censure of Clause 2).
No appeal.

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Breach of Clause 5.1 Failing to maintain high standards at all times
Breach of Clause 26.1 Promoting a prescription only medicine to the public
Breach of Clause 26.2 Encouraging members of the public to ask their health professional to prescribe a specific prescription only medicine
No Breach of Clause 2 Requirement that activities or materials must not bring discredit upon, or reduce confidence in, the pharmaceutical industry
No Breach of Clause 5.1 Requirement to maintain high standards at all times (ex-employee)
No Breach of Clause 26.1 Requirement to not advertise prescription only medicines to the public (ex-employee)
No Breach of Clause 26.2 Requirement that information about prescription only medicines which is made available to the public must not encourage the public to ask their health professional to prescribe a specific prescription only medicine (ex-employee)

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