Merck Serono: third‑party publisher emails for Bavencio found disguised promotion and too frequent (AUTH/3866/12/23)

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Key facts

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Case	AUTH/3866/12/23
Company	Merck Serono Limited
Product	Bavencio (avelumab)
Channel	Promotional emails sent by a third-party medical publisher; links to Merck promotional website
Complainant	Contactable complainant (described themselves as a health professional)
Complaint received	18 December 2023
Case completed	4 April 2025
Applicable Code	2021
Main issues	Disguised promotion (sender/subject line and lack of prominent disclosure at outset); excessive frequency/lack of restraint; third-party oversight and due diligence
Breach clauses	Clause 5.1; Clause 15.6 (x5); Clause 16.3
No breach clauses	Clause 5.1; Clause 5.5; Clause 5.6; Clause 15.5
Sanctions	Undertaking received; Additional sanctions: Not stated
Appeal	No appeal

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

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What happened

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A health professional complained about frequent emails (said ~every 4 days) from a third-party medical publisher, paid for by Merck Serono, promoting Bavencio (avelumab).
Emails used subject lines framed as clinical/data updates (eg JAVELIN Bladder 100, guidelines, efficacy, tolerability) and included a “Learn more (external link)” button to Merck’s Bavencio promotional website.
Neither the sender email address nor the subject line referenced Merck Serono or made clear the email was promotional at the outset.
Within the email body there was a statement “promotional advertisement from Merck for UK healthcare professionals”, but it was small and positioned such that it was not prominent at the outset.
“Invitation” emails (“We’ve hand-picked exclusive invitations just for you”) contained multiple companies’ invitations; Merck’s invitation included “Promotional advertisement from Merck for UK health professionals” beneath the invitation heading, but the overall email still did not make the promotional nature clear at the outset due to sender/subject line.
The complainant provided evidence of receipt on fourteen occasions; the Panel noted Merck’s frequency table suggested emails were sent about every 3.9 days in October and every 4.3 days in November.
Merck argued consent sat with the publisher (GDPR), that the emails were signposted as promotional within the email, and that frequency was the publisher’s standard practice (up to one email every 16 days per email type).

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Outcome

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Breach of Clause 15.6 (x5) Disguising promotional material.
Breach of Clause 16.3 Restraint to be exercised on the frequency of distribution and on the volume of promotional material distributed.
Breach of Clause 5.1 Failing to maintain high standards.
No breach of Clause 5.5 Requirement to be sufficiently clear as to the company’s role and involvement.
No breach of Clause 5.6 Requirement for material to only be provided or made available to those groups of people whose need or interest in it can be reasonably assumed. Material should be tailored to the audience to whom it is directed.
No breach of Clause 15.5 Requirement that the telephone, text messages, email, faxes, automated calling systems, and other digital communications must not be used for promotional purposes, except with the prior permission of the recipient.
No breach of Clause 5.1 Requirement to maintain high standards (on the narrow point of unsubscribing/consent allegations, which the Panel said were not actually made).

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Merck Serono: third‑party publisher emails for Bavencio found disguised promotion and too frequent (AUTH/3866/12/23)

Key facts

What happened

Outcome

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