A large volume of varied material is used by just about every industry to communicate with their chosen audiences, and the pharmaceutical industry is no exception. However, when most of this material is produced by third party agencies, it’s important for pharma companies to ascertain that the agencies they employ are fully cognisant of the companies’ responsibilities under the ABPI Code, and that there is sufficient oversight.
When agencies promote their services by sharing client material on their websites or in award entries, it is their clients who are liable under the Code for any potential breach (such as promotion of a prescription-only medicine to the public). There have been several recent cases relating to content posted online by third parties. In one case, an actor who appeared in an internal briefing video for Grünenthal staff shared a copy of the video on YouTube, as an example of his acting work that had been selected for an award – a clear breach of the code.
In an Astellas Europe case, videos that contained references to Astellas medicines but were never intended for external use, appeared on Vimeo. The content had been shared by an ex-employee of the agency who had developed the videos, once again to demonstrate examples of his work. In both cases, given that the YouTube/Vimeo content was not access-restricted in any way, and the intended audience was not stated, it was considered to be promotion to the public. Breaches were ruled, even though the companies involved had not themselves shared the material, had not instructed the agencies to do so and their permission to share had not been sought.
The Astellas Europe case also clarified that if material is placed on an agency website aimed at creative media or other potential clientele (rather than a social media platform such as YouTube or Vimeo), then this might NOT be considered promotion to the public, even if the material isn’t access restricted. This is further supported by an older Lilly case where an agency ex-employee complained about Lilly material on the agency website but this was deemed not to be promotion to the public.
In a world where content can be shared globally at the click of a button, the pitfalls are many when it comes to the Code. It’s natural that agencies will want to submit their material for awards, or designers share their work with potential employers – however they, and all parties associated with the making of the material, need to be aware that it can only be shared in a way that is not considered to be promotion to the public. Setting standards to manage the sharing of material is a vital part of avoiding potential breaches, and a formal agreement stating appropriate terms, conditions and oversight should be part of every company’s strategy, ensuring the pathway to working with third party agencies remains smooth.
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