Pharmaceutical Services Negotiating Committee

Code of practice for the promotion of NHS-funded services

As a result of a consultation in November 2006, the Department of Health has recently published a Code of Practice for the promotion of NHS-Funded services.

Originally, the consultation proposed that the Code would apply to hospitals, with primary care providers being considered later. The reason for the priority being given to hospitals was to support the roll out of Choice, in which patients would have freedom of choice of where they receive hospital care. In order to make informed decisions patients need access to information about NHS services, there would have to be controls on promotion of services to ensure that the public are provided with reliable information. However, the government has decided that the Code will apply to all who provide NHS funded services. Enforcement of the Code will be through terms included in contracts, and because community pharmacies do not have a formal contract, the requirement for compliance may be introduced as a Terms of Service requirement or through Fitness to practise provisions. Community Pharmacies should therefore familiarise themselves with the Code.

The safeguards introduced by the Code cover the full range of promotional activity that may be undertaken, including advertising, direct marketing to patients, and information directed at referring clinicians.

All marketing communications must comply with all of the Advertising Codes administered by the Advertising Standards Authority(ASA). (See www.cap.org.uk for the Committee of Advertising Practice (CAP) and Broadcast Committee of Advertising Practice (BCAP) Advertising Standards Codes). Community Pharmacy will also need to comply with the Royal Pharmaceutical Society's Code of Ethics and Guidance.

The following rules have been developed and apply to all promotional activity undertaken by providers of NHS-funded services. Where a complaint falls within the scope of the CAP and BCAP Codes, the ASA will adjudicate on the complaint. Where a complaint is outside the ASA's remit, PCTs and SHAs will adjudicate on the NHS Code with advice from the Cooperation and Competition Panel, where needed, and will enforce the NHS Code.

The NHS Code

General principles

Promotional activity must follow applicable laws and industry codes of practice.
Promotional activity must respect the ethical guidance and professional codes of conduct of clinicians and other health professionals.
Marketing communications should contain nothing that is likely to cause serious or widespread offence.
No marketing communication should cause fear or distress without good reason.
Particular care should be taken to avoid causing offence on the grounds of race, religion, sex, sexual orientation or disability.
Providers should consider accessibility by different sectors of the population.
Marketing communications addressed to, targeted at or featuring children should not exploit their credulity, loyalty, vulnerability or lack of experience.
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.
Promotional activity should be appropriate for the intended audience, for example communications aimed at patients should avoid medical jargon.
No advertisement may encourage indiscriminate, unnecessary or excessive use of products.
Promotional material should not create confusion between marketers and competitors or between marketers' products, trade marks, trade names or other distinguishing marks and those of competitors or official documents.

Protecting the reputation and brand policy of the NHS
Promotional activity must not contravene the values and brand policy of the NHS, including the use of the NHS logo.
No promotional activity should be undertaken that undermines the reputation of the NHS, NHS logos or trade marks (or services supplied under those logos or trade marks) or otherwise brings the same into disrepute. Promotional activity should not undermine public confidence in the NHS. The logo is trademarked and may not be used by providers to promote non-NHS services or products.
No promotional activity should be undertaken that undermines the reputation of any individual providers, clinicians or other health professionals or otherwise brings the same into disrepute.

Direct marketing to the public and referring clinicians
Direct marketing to the public, their carers or advocates or to referring clinicians is only permissible where marketers comply with all relevant data protection legislation, the NHS Confidentiality Code of Practice and Mailing Preference Service requirements.
Mailing lists must be kept up to date. Requests to be removed from promotional mailing lists must be complied with promptly and no name may be restored except at the addressee's request or with their permission.

Information, claims and comparisons
No marketing communication should mislead, or be likely to mislead, by inaccuracy, ambiguity, exaggeration, omission or otherwise.
Comparative claims are permitted in the interests of vigorous competition and public information. They should neither mislead nor be likely to mislead.
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.
Claims in promotional material must be capable of standing alone as regards accuracy, and, in general, claims should not be qualified by the use of footnotes and the like.
Providers must be open about the source and date of the data used in any promotional activity.
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.

Provider representatives
Representatives of providers must act in accordance with high ethical standards, must not receive benefits based on referrals, and must make it clear that they are representatives of the provider. Their statements are promotional activity.
All provisions in this Code relating to the need for accuracy, balance and fairness apply to oral representations as well as to printed material.

Expenditure
Providers will be expected to recognise the potential effect on the reputation of the NHS of disproportionate expenditure on promotional activity. The cost of TV or cinema promotion is very unlikely to be justifiable.
Responsibility for appropriate promotional expenditure lies with provider organisations' boards.
The expenditure figure should be published in the annual report, or other appropriate format when an annual report is not produced.

Gifts, inducements and promotional aids to referring clinicians and commissioners
No gift, benefit in kind or pecuniary advantage should be offered or given to clinicians, other health professionals, administrative staff or commissioners as an inducement to refer or commission services.
Promotional aids, whether related to a particular service or of general utility, may be distributed to members of the health professions, appropriate administrative staff and commissioners, provided that the promotional aids are inexpensive and relevant to the practice of their profession or employment.
Items provided on long-term or permanent loan are regarded as gifts and subject to the requirements of this Code.
Items for the personal benefit of health professionals, commissioners or administrative staff must not be offered or provided.
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.
These events must be held in appropriate venues conducive to the main purpose of the event. The level of subsistence offered must be appropriate and not out of proportion to the occasion. The costs involved must not exceed the level that the recipients would normally choose when paying for themselves.

Inducements to the public
No financial inducements or benefits for treatment (including by way of sales promotions) shall be offered to the public, their carers or advocates, nor any inducements or benefits that could be perceived as damaging to their health.

Testimonials and endorsements

Testimonials and endorsements must be based on genuine experience, given freely without either financial payment or other inducement, and must not be used to denigrate another provider.
Marketers should hold signed and dated proof, including a contact address, for any testimonial they use. Unless they are genuine opinions taken from a published source, testimonials should be used only with the written permission of those giving them.
Testimonials and endorsements must be representative of patients' views generally as substantiated by patient surveys. They must also comply with the general principles set out in this Code.
The above shall not prevent providers from paying individuals to be involved in general promotional campaigns.
Testimonials from children may be used if they are given with the consent of a parent or guardian.
Quotations must be faithfully reproduced (except where adaptation or modification is required in order to comply with the Code) and must accurately reflect the meaning of the author. The precise source of the quotation must be identified.
The utmost care must be taken to avoid ascribing claims or views to authors when these no longer represent the current views of the authors concerned.

Sponsorship
Providers of NHS-funded services are permitted to undertake sponsorship where it is not associated with matters, and co-sponsors are not associated with matters, that are damaging to health or associated with gambling, alcohol, tobacco, weight control or politics.
All sponsorship should comply with relevant NHS guidance on the subject, NHS brand policy and guidelines, and any local NHS guidance. (Please see Links and useful information.)
Providers may sponsor materials relating to health or healthcare but must ensure that it is clear from the outset that those materials are so sponsored. Sponsored materials may be treated as promotional activity for the purposes of this Code.
Providers must not engage in ‘product placement' activity, i.e. inclusion of, or reference to, them, their products or services within a film or programme in return for payment or other valuable consideration (whether the recipient of that payment or other valuable consideration is the programme- or film-maker or any other third party).

Compliance with undertakings
When an undertaking has been given in relation to a ruling under this Code, the provider concerned must ensure that it complies with that undertaking.

Complaints and enforcement

If an individual or organisation feels that a provider has breached part of the Promotion Code that is enforced by the ASA, then complaints should be directed to the ASA. This can be done via the ASA's website: www.asa.org.uk/asa/how_to_complain/

If an individual or organisation feels that a provider has breached the NHS-specific parts of the Promotion Code, then a complaint should be made to the PCT that commissioned the services from the provider. In many cases, a number of different PCTs may have commissioned a service provider; if this is the case, a complaint should be made to the PCT that covers the region in which the complainant lives.

If there is a more appropriate body to deal with the complaint, for example another PCT or the ASA, then the PCT that receives the complaint will pass it on. If the ASA receives a complaint that is outside its remit, it will forward this to the relevant SHA, which will work with the local PCT to investigate the complaint and resolve the issue.

PCTs may be able to resolve complaints locally, through discussion with the providers, and with the support of their SHA. In some cases, the PCT or SHA may feel that it needs to seek expert advice from the Cooperation and Competition Panel. In cases where resolution cannot be found, the PCT or SHA may refer the issue to the Panel.

The Panel is expected to be operational from October 2008. This means that there will be a short interim period after the Promotion Code comes into force and before the appointment of the Panel. During this interim period, SHAs and PCTs will deal with issues and can seek advice from the Department of Health and key stakeholders, including the NHS Confederation, NHS Partners, the Foundation Trust Network, the Mental Health Network and the PCT Network.

Impact on Community Pharmacy

The Code applies only in relation to the NHS funded activities, so does not affect for example the other retail aspects of a pharmacy business, and does not for example, apply to promotion of private dispensing.

Although the whole of the Code may apply to community pharmacy, some sections are likely to be more relevant than others.

The following are the rules that are likely to commonly apply to promotional materials-

10 - No advertisement may encourage indiscriminate, unnecessary or excessive use of products.

This is likely to apply when PCTs commission Enhanced services involving the supply of medicines and other products. An advertisement to visit the pharmacy to ‘stock up' on medicines supplied under a minor ailments scheme would probably in breach.

12 - Promotional activity must not contravene the values and brand policy of the NHS, including the use of the NHS logo

13 - No promotional activity should be undertaken that undermines the reputation of the NHS, NHS logos or trade marks (or services supplied under those logos or trade marks) or otherwise brings the same into disrepute. Promotional activity should not undermine public confidence in the NHS. The logo is trademarked and may not be used by providers to promote non-NHS services or products.

Community Pharmacy has had access to the NHS logo for only a limited time and many pharmacists may not yet be familiar with the specific restrictions on the use of the NHS logo.

As community pharmacies may wish to promote their non-NHS services, as well as their NHS services, care must be taken not to use the NHS logo (which must be used only for NHS services and products).

14 - No promotional activity should be undertaken that undermines the reputation of any individual providers, clinicians or other health professionals or otherwise brings the same into disrepute.

The principle in this rule is familiar to all pharmacists, as the profession's Guidance on advertising, which supplements the Code of Ethics includes a requirement that advertisements must not bring the profession into disrepute, or disparage the services provided by other pharmacies or pharmacy professionals.

15 - Direct marketing to the public, their carers or advocates or to referring clinicians is only permissible where marketers comply with all relevant data protection legislation, the NHS Confidentiality Code of Practice and Mailing Preference Service requirements.

16 - Mailing lists must be kept up to date. Requests to be removed from promotional mailing lists must be complied with promptly and no name may be restored except at the addressee's request or with their permission.

Community Pharmacists maintain patient medication records of persons presenting prescriptions, and as a result, are required to notify the Information Commissioner that they are processing that data. The notification also specifies the use to which data will be put. Using Patient Medication Records for the purpose of informing patients of improvements etc of the dispensing services at the pharmacy could be acceptable, but a mail-shot using PMR data to promote a photographic developing and printing offer could be objectionable. Whilst the public can request that they are taken off mailing lists, such an application would not affect the pharmacy's maintenance of the PMR.

17 - No marketing communication should mislead, or be likely to mislead, by inaccuracy, ambiguity, exaggeration, omission or otherwise.

18 - Comparative claims are permitted in the interests of vigorous competition and public information. They should neither mislead nor be likely to mislead

Community Pharmacies sometimes promote their services to the public, and comparative claims may be used to differentiate their services from their competitors. This is acceptable where the claims are accurate, and do not mislead or exaggerate. Sources of comparative data must be retained, in case of complaint.

An advertisement that promotes the dispensing service at the pharmacy stating ‘this pharmacy is the number 1 choice for dispensing prescriptions' must be capable of substantiation and claims such as ‘Our dispensing service is cheapest in town' is misleading - because NHS prescription charges cannot be discounted as to do so contravenes the Terms of Service prohibition on offering inducements. Any clarification should be in the text, not as a footnote (see Rule 20) - so it would be unacceptable to use this phrase together with a footnote saying the claim applies only to private prescriptions. Again, such a claim should be capable of substantiation (the Advertising Standards Authority would be the arbiter in this case, as this is not an NHS funded service).

The examples given here are extreme - no suggestion is made that the tone of either would be acceptable - they are used to demonstrate why care needs to be taken over comparative promotion.

28 - No gift, benefit in kind or pecuniary advantage should be offered or given to clinicians, other health professionals, administrative staff or commissioners as an inducement to refer or commission services.

There is already a provision in the Terms of Service that prohibits the offering of an inducement in return for the presentation of a prescription. This rule appears to go considerably further. Prescribers should not direct patients to particular pharmacies, and this rule would prohibit a pharmacy from offering any gift, benefit in kind or pecuniary advantage as an inducement to refer patients with prescriptions to a particular pharmacy. Community pharmacy owners sometimes contact their Local Pharmaceutical Committee and / or PSNC about local arrangements which suggest that there may be some form of inducement being offered to GPs or their staff, in return for direction of prescriptions - this rule appears to prohibit that conduct. Because the terms of the prohibition are not limited to financial inducements, it is likely that community pharmacies will need to take special care not to contravene this rule.

The provision of auxiliary aids (e.g. MDS) and a delivery service are specifically mentioned in the pharmacy regulations as not being prohibited inducements (for example, when provided free of charge to a Care Home or when medicines are delivered by a ‘distance selling' pharmacy). As the Regulations are specific, and the Code of Practice is in general terms, the supply of auxiliary aids and free delivery services should not be deemed to breach these rules.

31 - Items for the personal benefit of health professionals, commissioners or administrative staff must not be offered or provided.

It is likely that discount cards and equivalents for the personal benefit by health professionals and their staff will contravene this rule.

34 - No financial inducements or benefits for treatment (including by way of sales promotions) shall be offered to the public, their carers or advocates, nor any inducements or benefits that could be perceived as damaging to their health

As mentioned above, the pharmacy regulations already prohibit the offering of an inducement to a patient in return for the presentation of a prescription. This rule extends that prohibition. A promotion which offered a patient a financial saving on goods in the pharmacy if attending for a Medicines Use Review would appear to be prohibited. A promotion offering benefits in kind in return to signing up for an NHS service would also appear to breach this rule. However, the prohibition applies only to NHS funded services, so offers which do not relate to NHS services are not affected by the rule.

Summary

These rules are new, but many build on principles with which pharmacy will be familiar. All pharmacies will need to review their advertisements to ensure that they are in line with the guidance.

Primary Care Trusts have the responsibility for enforcement in relation to NHS matters, and the Advertising Standards Authority for other non NHS matters. PCTs may wait until the Cooperation and Competition Panel is formed later this year, to seek advice. At the beginning of this briefing, it was stated that the Code was not intended to apply to community pharmacies straightaway, but government has decided to extend it to pharmacy and other primary care practitioners. This means that certain items that are specific to pharmacy may need further clarification. PSNC will be discussing the provisions with the Department of Health.

NHS branding

In 2004 guidance on the use of the NHS identity (logo) by community pharmacies was published. These guidelines were sent to all community pharmacies in England; they can be downloaded at www.nhsidentity.nhs.uk/pharmacy. Many pharmacies have subsequently used the identity in external fascias etc. PSNC supports pharmacy use of the NHS identity, as a means of highlighting that community pharmacy is part of the NHS family.

It has become apparent that not all pharmacies are following the guidelines on the use of the NHS identity; the NHS identity is a registered trademark and pharmacies can only use it in accordance with the national guidelines.

Where can I use the NHS logo?

The logo can be used on the following corporate materials, in accordance with the guidelines:

■ External fascias

■ Window vinyls

■ Window banners

■ Internal panels

■ Prescription bags

■ 'A' boards

■ Leaflets (including Practice leaflets) and posters containing solely information about NHS services provided

■ Corporate websites

■ Stationery

■ Uniforms

Can the NHS logo be used on pharmacy promotional or advertising materials?

No.

What are the pharmacy descriptor lines?

They are two different lines of text which help to describe the relationship between the pharmacy and the NHS.

Version A is for use at pharmacies, i.e. signage, A boards etc.

NHS LOGO A

Version B is for use on materials that are outside of the pharmacy environment, i.e. stationery, prescription bags etc.

NHS LOGO B

Can the NHS logo be used on its own without the pharmacy descriptor lines?

The NHS logo may only be used without the descriptor line on fascias where space restrictions mean it is not possible to incorporate it. On all other materials, the descriptor line must be used.

Where can I obtain a copy of the guidelines, the official artwork and further assistance?

The NHS identity website contains a copy of the pharmacy guidance and the pharmacy artwork. If you require further assistance you can contact the NHS Identity Helpline: 0207 972 5250/0207 972 5261 or nhs.identity@dh.gsi.gov.uk

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