Case study 3

An anonymous and non-contactable complainant who described themselves as a fertility health professional submitted a complaint about the provision of hospitality by Merck Serono.

The complainant stated that Merck Serono had flown delegates premium class to an international conference in Boston and during the conference had hosted lavish dinners followed by drinks parties that went on into the early hours of the morning and during which large amounts of alcohol were consumed.

The complainant alleged that this excessive level of hospitality was further evidenced by Merck Serono’s conduct at another international conference in London during which it entertained UK health professionals on a Thames river boat cruise with music, and treated them to an extravagant gala dinner held in the Tower of London where an excessive amount of alcohol was provided.
The detailed response from Merck Serono is given below.

The Panel noted that as the complainant was anonymous and non-contactable it was not possible to ask the complainant for further information. The Panel noted that Merck Serono had provided a detailed account of subsistence provided during both conferences.

The Panel noted that the Code required that companies should only offer or provide economy air travel to delegates sponsored to attend meetings. Delegates could of course organise and pay at their own expense the genuine difference between economy travel and business class or first class. The Panel noted that the reference to economy air travel first appeared in the 2006 Code and that airlines’ offerings in relation to class of travel had developed since then.

The Panel noted that PMCPA advice stated that developments in recent times had led to classes of travel being offered which included ‘economy’ in their title such as premium economy and were part way between economy and business class. It was unlikely that the payment of a significantly more expensive fare than economy would ever be acceptable under the Code. The PMCPA’s view was that the use of economy tickets put companies beyond reproach. The Panel thus considered that perception and cost were important factors when deciding whether premium economy flights were acceptable. There was no mention in either the Code or the published advice that the length of travel was a relevant factor.

The Panel noted that airlines’ offerings differed. Some airlines offered economy, premium economyand upper class flights and therefore premium economy might be considered a version of business class. Other airlines offered economy, world traveller plus, business and first class flights so world traveller plus might be considered to be part way between economy and business class. The matter was further complicated as airlines used different terms to describe similar levels of service.

The Panel noted Merck Serono’s submission that the cost per premium economy ticket for delegates to attend the meeting was £1250. The Panel assumed that this also applied to the world traveller plus tickets. The Panel noted that one delegate travelled economy class from Ireland to Boston. The Panel noted that Merck Serono could not provide the actual cost of economy flights for the specific dates travelled. Instead Merck Serono provided the cost for flights to Boston on a Saturday and returning on a Thursday booked approximately six weeks in advance. The Panel noted that these were such that the actual cost of premium economy and world traveller plus flights were significantly more expensive than the corresponding economy flights. However, it was entirely unclear whether these economy flight costs were closely similar to the costs which would have been incurred had economy class tickets been booked originally. It was thus not possible to determine whether the premium economy class tickets and world traveller plus tickets purchased were significantly more expensive than the corresponding economy flights. The Panel was, nonetheless, extremely concerned about the impression given. The Panel also noted the impression that one airline’s offering of premium economy appeared to be akin to business class. The Panel considered that on the evidence before it the provision of a class of flight other than economy was contrary to the Code and a breach was ruled.

The Panel noted that the American Society for Reproductive Medicine (ASRM) conference lasted from Saturday, 12 October to Thursday, 17 October 2013. The Panel considered that the subsistence provided to the Merck Serono delegation on 13–15 October at local restaurants was not unreasonable. Costs incurred varied from £35 to £40 per head including drinks. The Panel ruled no breach of the Code.

The Panel noted that the restaurant that Merck Serono had originally intended to go to on Wednesday, 16 October had to be changed on the evening as its staff refused to serve any delegates who did not have their passports with them. Merck Serono submitted that a steak house was the only available venue for a large number of diners at short notice. The cost per head including drinks was £83 which Merck Serono acknowledged was higher than it would ordinarily consider acceptable.

The Panel considered that the circumstances in this regard were unusual. In the Panel’s view Merck Serono should have been aware that the booked restaurant required diners to bring their passports. It was important for a company to be mindful of the impression created by its activities; this was especially so in relation to the provision of subsistence in a public restaurant irrespective of the circumstances. The Panel considered that the cost was such that the subsistence provided to the health professionals was contrary to the Code and a breach was ruled. The Panel did not consider that, given the exceptional circumstances of this case, Merck Serono had failed to maintain high standards and no breach of the Code was ruled. The Panel consequently ruled no breach of Clause 2.

The Panel noted Merck Serono’s submission that no hospitality was provided to any health professionals by Merck Serono following the dinners nor did Merck Serono employees accompany any delegates to any bars or clubs. The Panel did not consider that the complainant had proved on the balance of probabilities that Merck Serono had hosted lavish drinks parties that went on until the early hours of the morning and during which large amounts of alcohol were consumed as alleged. No breach of the Code was ruled.
The Panel noted that the European Society of Human Reproduction and Embryology (ESHRE) conference lasted from Sunday, 7 July to Wednesday, 10 July 2013.

The Panel noted the costs per head for the dinner on 7 July at a hotel was £42 and 8 July at a restaurant was £30. The Panel did not consider that the subsistence provided on either occasion was unreasonable and ruled no breach of the Code in relation to each.

The Panel was concerned that on the 8 July, three Merck Serono employees accompanied forty health professionals to a patient organisation’s 10th anniversary event held on a river boat cruise along the Thames. The Panel noted Merck Serono’s submission that it had no input into the organisation of this event and had not provided any financial support for the event. Merck Serono had at the request of the patient organisation notified its delegation of the event. The Panel noted Merck Serono’s submission that no drinks were purchased by Merck Serono employees either for invited delegates or for personal consumption. Merck Serono had not paid for any aspect of the event including any hospitality. The Panel thus ruled no breach of the Code in that regard.

In relation to the river boat cruise, the Panel queried whether it was appropriate for Merck Serono employees to accompany its delegates to an event that appeared to be entirely social in nature. It was likely that attendees would be attracted by the venue. It was important for a company to be mindful of the impression created by its activities. The Panel considered that the impression given by the presence of Merck Serono employees with health professional delegates on the river boat which was likely to be more of a party atmosphere was wholly unacceptable. In that regard the Panel considered that high standards had not been maintained. A breach of the Code was ruled.
The Panel noted the cost per head for dinner on 9 July at a restaurant was £68 including £14 per head for wine and mineral water. That it was possible to provide subsistence in the evening at a central London venue at a lower cost was evidenced by the cost of the meal at the restaurant on 8 July. The Panel considered that the hospitality was on the upper limits of acceptability. It was concerned about the impression given by the arrangements. The Panel decided on the evidence before it that the hospitality, on balance was not unacceptable. The attendees were health professionals and the main purpose of the conference was educational. No breach of the Code was ruled.

The Panel decided the circumstances in this case were not such as to bring discredit upon and reduce confidence in the pharmaceutical industry and no breach of Clause 2 was ruled.

Read the full Case Study 3 here