Thursday, December 15, 2011

Tales from the PMCPA contd. The Case of the Unsolicited Email

A medical director of a primary care service provider complained that a promotional email about Pradaxa (dabigatran) had been sent by a third party to his NHS account. Pradaxa was Boehringer Ingelheim’s product for prevention of stroke and systemic embolism in certain patients.

The complainant alleged that the email had been sent unsolicited. The complainant did not request any such information and had not given his email address to any party in connection with either Pradaxa or any other medicine. The complainant could not find a link to unsubscribe from the distribution list. The complainant stated that his complaint was about a breach of both UK law and the Code.

The Authority advised that it could only consider complaints within the context of the Code.

The detailed response from Boehringer Ingelheim is given below.

The Panel noted Boehringer Ingelheim’s submission that the database provider obtained consent from the complainant when he completed his registration. An email to the complainant in February 2011 described the registration process for another service and explained that from time to time information would be sent ‘… by e-mail about our associated/affiliated companies and their clients’ product and services, which may include updates on specialist services, conferences and seminars, diagnostic, medical and pharmaceutical promotional materials as well as official information’. This was followed by a new paragraph ‘However, please be advised that we will not share your e-mails with any third parties’. The unsubscribe facility which stated ‘If you do not wish to receive such information please click the box*’ appeared at the very end of the email after the signature and contact details. Additionally, members of the database had been emailed an opt-in policy which included the following: ‘All our e-mail communications to healthcare personnel, in accordance within the Data Protection Act 2001 include an ‘unsubscribe’ option which allows recipients to ‘opt-out’ if they wish. They can ‘opt-out’ of receiving promotional material only and still receive official information. If a recipient chooses to ‘opt-out’ of receiving promotional material we will stop sending messages to that person’. The policy also referred to contact by email and telephone to update and validate information wherein recipients would be told they had opted-in to receive emails from the service provider and their affiliates which might contain promotional information. The Panel did not have a copy of the covering email providing a copy of the policy to the complainant.

The Panel noted that the database was used to email campaigns on behalf of government departments and agencies which many NHS employees would consider important information and want to receive. The Panel considered that it was not at all clear on the registration email sent to the complainant in February 2011 that he could consent to receive official information by email but choose not to receive promotional material. It was not acceptable to rely on the opt-in policy which was sent separately in this regard. Although it was clear on the registration email that the complainant would receive, inter alia, promotional material for medicines on registration, recipients might choose not to unsubscribe given the impression from the wording of the email and the positioning of the unsubscribe option that they would otherwise not receive any material by email including official information. This was not satisfactory and in the Panel’s view should be improved. The Panel queried whether the recipient was given a bona fide choice. Nonetheless the Panel considered that by registering on the site and failing to unsubscribe, the complainant had given prior permission to receive, inter alia, promotional material by email and no breach of the Code was ruled.

The Panel noted Boehringer Ingelheim’s submission that the unsubscribe facility was omitted in error from the Pradaxa email. The Panel noted that the unsubscribe option did not appear in the version of the email certified by the company. This was a serious error. A breach of the Code was ruled as acknowledged by Boehringer Ingelheim.

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