Many healthcare professionals will be aware of the Association of the British Pharmaceutical Industry (ABPI) Code of Practice,1 however, the Code of practice for the promotion of NHS-funded services2 is much less well known.
Introduction of the Promotion Code
The Promotion Code was launched in March 20082 with the aim of setting out rules around promotional material produced by providers of NHS services; however, there was little mention of it in either the NHS or marketing press. An informal survey of primary care trust (PCT) managers revealed that many were unaware of the existence of the Promotion Code despite the fact that they now have specific responsibilities for enforcing certain elements of it.
The low-key emergence of this Code hides the fact that its very existence is a landmark event in the history of the NHS. It formally acknowledges the right of NHS service providers to promote and advertise their products; an inevitable consequence of introducing competition for service provision.
Purpose of the Promotion Code
In order for patients and referrers to make decisions about care and treatment, they require reliable, and relevant information on available services. Providers may wish to promote their services, which not only increases patient choice but should also help to improve standards of care across the NHS.2 The Promotion Code is relatively simple in its requirements: promotion must protect both the reputation of the NHS and patient safety. It states: ‘It is important that there are safeguards in place to protect referring clinicians, patients and the public from misleading or offensive promotional activity. It is important that these safeguards cover the full range of promotional activity that may be undertaken, including advertising, direct marketing to patients, and information directed at referring clinicians.’2
Principles for advertising
In the same vein as the ABPI Code, the Promotion Code emphasises the requirement for factually accurate promotion: ‘No marketing communication should mislead, or be likely to mislead, by inaccuracy, ambiguity, exaggeration, omission or otherwise.’1 For example, a statement claiming that ‘All patients are seen within 24 hours’ is too broad and raises a number of questions: can a patient make an appointment at 16.00 on a Friday and be seen by 15.59 the next day (Saturday), or does the claim only apply to appointments made on Monday–Thursday? When does the clock start ticking—whenever the patient gets through on the telephone, or only if they get through before 10.30? Poetic licence is not acceptable under the Promotion Code. Every statement must be substantiated, with appropriate evidence: claims on a promotional poster may have been true 3 months ago, but are they still true now? The Promotion Code states: ‘Providers should use only the most recently available data if they wish to use statistical information or claims based on statistical information in their promotions’ (Clause 22).2
Organisations should ensure that they have all the necessary documentation available: ‘Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove all claims, whether direct or implied, that are capable of objective substantiation’ (Clause 19).2
Transparency is another key area targeted by the Promotion Code: ‘Marketers, publishers and owners of other media should ensure that marketing communications are designed and presented in such a way that it is clear that they are marketing communications’ (Clause 8).2 Therefore an item produced by a GP practice should be clearly marked as such: a four-page advertisement on the outside of a local newspaper designed to look like the front and back pages of the newspaper itself would be regarded as misleading unless it is blatantly obvious to the reader that it is in fact an advertisement.
Transparency is becoming a key feature of many marketing codes—within the pharmaceutical industry, the ABPI Code does not permit promotional material to resemble independent editorial content in journals.1 The Promotion Code demands higher levels of transparency than many industries; for all service providers, there is a requirement to publish an annual set of figures highlighting how much money has been spent on marketing:2 ‘The expenditure figure should be published in the annual report, or other appropriate format when an annual report is not produced’ (Clause 27).2
The Promotion Code is not limited to advertising, it also covers processes such as submitting a business plan to the PCT in support of an application for funding to run an enhanced (community-based diabetes) service. In fact all types of ‘marketing communications’ relating to the provision of an NHS service fall within the remit of the Promotion Code.2
Historically, the following situation is not uncommon: a GP contacts the local commissioning manager and invites him or her to discuss their diabetes business plan over lunch. However, the wording of Clause 32 in the Promotion Code implies strongly that meals in connection with business proposals are now unacceptable: ‘The offering of reasonable hospitality is permitted where this is offered at purely professional or scientific events where it is subordinate to the main scientific objective of the event and is offered only to clinicians, health professionals, commissioners or relevant administrative staff. ’2
The purpose of the meal therefore needs to be considered: in the example above, it was to discuss provision of services using NHS funds. Therefore, in this instance the GP is effectively acting as a sales representative for his/her organisation, and that brings the discussion within the scope of the Promotion Code. This would be regarded as a meeting to discuss the merits of giving the contract to the GP and the meal would probably be considered an attempt to influence the commissioner because the meeting could have taken place at the surgery or commissioner’s office during normal business hours. This can be contrasted with a presentation to the Medical Adviser regarding the clinical care pathway for patients with diabetes; in this instance it would be acceptable to provide sandwiches for the audience. However, if challenged in the future, the meeting organiser would still need to produce an agenda as evidence of the purpose of the meeting (the clinical presentation). It would also be necessary to have records of expenditure supporting that the hospitality was reasonable.
Enforcement of the Promotion Code
Unlike the launch of a new medicine, there is neither a need for material to be pre-vetted by a regulatory authority nor is there a requirement to submit records or copies of material to a central authority. The governance system within the Promotion Code relies on the integrity of the NHS service provider and effectively only becomes ‘active’ in response to a complaint. In reality, the majority of complaints related to advertising will be under the jurisdiction of the Advertising Standards Authority (ASA). If the complaint falls outside the remit of the ASA, PCTs and strategic health authorities will adjudicate on the Promotion Code with assistance from another group, the Cooperation and Competition Panel.1
Despite a quiet introduction, the Promotion Code is likely to gain more prominence in the future and be the source of controversy from time to time. For example, there will be some NHS physicians and managers who may be hesitant about the need for regulation in this area. Like it or not, primary care practices are now competing with each other, and also with other service providers, to win contracts related to patient care.
Medical practitioners will now have to balance their status as healthcare professionals with their position as business people trying to obtain contracts. The public is unlikely to differentiate between the two roles. It is, therefore, easy to argue the appropriateness of holding healthcare professionals to at least the same high standards of business conduct as drug manufacturers.
The Promotion Code may not have been high on anyone’s agenda thus far, but it contains some simple statements with potentially far-reaching implications. The NHS is embracing competition and all that goes with it, including the regulation of its marketing practices. Primary care must take note and consider the implications of this move.
About the author
The author is a compliance specialist who advises the pharmaceutical industry and healthcare organisations on marketing regulations and governance matters, including the ABPI Code of Practice.
- Association of the British Pharmaceutical Industry. Code of practice for the pharmaceutical industry. London: ABPI, 2008. Available at: www.pmcpa.org.uk/?q=getcopiesofcode
- Department of Health. Code of practice for the promotion of NHS-funded services. London: DH, 2008. Available at: www.dh.gov.uk/en/Consultations/Responsestoconsultations/DH_083556G