2019 cases

Summary of Committee meetings held in 2019

299: Case 299/06/19: MSD Animal Health/ Boehringer Ingelheim Ltd: Marketing of Bovela

Case 299/06/19 involved a complaint brought by MSD Animal Health against Boehringer Ingelheim concerning the latter’s promotion of Bovela, a Bovine Viral Diarrhoea (BVD) vaccine. The case was focussed on 2 promotional straplines used by Boehringer Ingelheim and contained 2 items of complaint which were as follows;

1. ‘No contest Bovela is knocking out BVD’ which appeared in an article in the Vet Times dated 13 May 2019 and in an email campaign dated 24 April 2019 (‘Item 1’).
2. ‘Bovela. Making BVD history’ used in an article in the Vet Times dated 13 May 2019 and in an email campaign dated 24 April 2019 (‘Item 2’).

MSD views on the case (the complainant)

MSD Animal Health made the following general points:

• They argued that for effective BVD control there needs to be a multi-factorial approach including surveillance to identify where the disease is, strict biosecurity, the removal of infected animals by culling, and vaccination.
• They agreed that vaccination can play an important role in managing BVD but only as part of a systematic co-ordinated approach.
• They argued that vaccination alone will not eradicate BVD, that vaccination cannot be a stand-alone measure for control and eradication of this disease and that much work remains to be done in order to eradicate BVD.

With regard to item 1, they stated:

• The use of ‘no contest’ implies competition, and that the logical conclusion as to competitors would be other vaccines on the market. The use of ‘no contest’ implies that Bovela is unbeatable compared to other competitors’ products and implies special merit.
• The use of ‘knocking out’ implies that Bovela will over-power, crush or smash BVD yet a lot of work remains to do to achieve this and vaccination alone is not sufficient.
• Boehringer Ingelheim do not provide enough evidence to substantiate why they say Bovela is knocking out BVD – they imply that it is being knocked out directly by Bovela alone without substantiation.

With regard to item 2, they stated:

• The Boehringer Ingelheim strapline states that Bovela, the product, is making BVD history. The strapline is ‘ Making BVD history’ and it refers to the product not the Company.
• ‘Making history’ implies a thing of the past; making it a historic disease and eradicating it. Boehringer Ingelheim have no evidence to substantiate their claim that Bovela alone is eradicating BVD.

Boehringer Ingelheim views on the case (the respondent)

In response Boehringer Ingelheim:

• Explained the differences between Bovela and other vaccines for BVD and stated that Bovela is the only live vaccine for BVD in use and that it has distinct properties in that 2 genes are removed from the virus in the vaccine.
• Stated that Bovela was launched 4 years ago as part of a wider BVD awareness program and as part of a holistic approach to tackling BVD as part of the ‘BVD Zero Campaign’ which focuses on the need to have an effective control program including removing Persistently Infected (PI) animals and biosecurity.
• Submitted that Bovela, and the use of vaccination in that context, is proven to be effective in overcoming breakdowns in biosecurity.

With regard to Item 1, they raised the following points:

• They stated that they were not seeking to claim that Bovela alone will solve the problem of BVD in the UK.
• The graphics used were intended to make it clear that the competition they are concerned with is ‘the cow vs virus’ contest and not the contest with other products.
• The advertisement in the Vet Times was placed alongside an article about the BVD Zero Awards and BVD control and they are working constantly to develop, promote and educate in respect of BVD focussing on the need to use Bovela as part of a multi-pronged approach to controlling BVD, not just using vaccination alone.
• They have never sought to communicate that vaccination alone is a silver bullet to dealing with BVD.

With regard to Item 2, they raised the following arguments:

• The BVD Zero campaign was launched alongside the Bovela product and at that time the words used were ‘make BVD History’ – a call to action for vets and farmers – intended to encourage action over BVD and measures to be taken to control this disease.
• The change from ‘make’ to ‘making’ was part of the evolution of the campaign to reflect the important role the vaccine plays in the landscape of BVD control.

Boehringer Ingelheim concluded that:

• Their campaign does not seek to draw comparisons with competitors.
• The campaign is not designed to advertise a BVD solution but to advertise the role of vaccination at herd level and to highlight the huge value of vaccination in dealing with BVD.
• They did not believe that the campaign overstates the role of vaccination in BVD control and did not accept that the campaign seeks to imply special merit with the live vaccine.
• As a company Boehringer Ingelheim are hugely committed to supporting the eradication and control of BVD for which vaccination is at the core.

Decision of the Committee

Following in-depth deliberations, the decisions of the Committee on the 2 Items were as follows:

ITEM 1:

‘No contest Bovela is Knocking out BVD’: Advert in Vet Times and email from Boehringer Academy dated 24 April 2019.

The Committee unanimously concluded that the advertisement ‘No contest Bovela is Knocking out BVD’ was misleading by omission in that it implies that the live vaccine Bovela by itself will eradicate BVD and not as part of a broader strategy in combination with other measures. The Committee found that it was agreed by all that no vaccine could eradicate BVD alone and the only way to do so is by using a combination strategy of identification of infected animals, culling of PI calves and strict biosecurity. The Committee concluded that the strap line ‘No contest Bovela is Knocking out BVD’ was a breach of Clause 4(3)(iii) of the Code as it implies that the live vaccine Bovela by itself will eradicate BVD and not as part of a combination strategy and is therefore misleading in an indirect manner.

ITEM 2:

‘Bovela. Making BVD History.’ Advert in Vet Times and email from Boehringer Academy dated 24 April 2019

The Committee found unanimously that the juxtaposition of ‘Making BVD History’ with Bovela amounted to an exaggerated claim that Bovela (although accepted as being a highly efficacious vaccine) is by its use eradicating BVD. The Committee considered this to be exaggerated because it implies that Bovela alone is making BVD a matter of the past e.g. eradicating BVD. The Committee considered the use of ‘Make BVD History’ as previously used by the Respondent to be acceptable as although only very slightly different, it conveys a different message as it is an exhortation, in other words,  a “call to arms”, inviting everyone to work together to ‘Make BVD History’. The Committee was satisfied that the use of ‘Make BVD History’ would not be a breach of the Code.

The Committee also wanted to applaud Boehringer Ingelheim for their BVD Zero Campaign and indeed all members of the industry involved in the effort to educate the vet and farming industry in how to deal with and eradicate this endemic disease.  Nevertheless, it was held by the Committee that ‘Bovela. Making BVD History’ was a breach of Clause 4.3(vi) of the Code in that it was an exaggerated claim.

Undertaking: Following the case Boehringer Ingelheim are required to sign an Undertaking which states the following;

1. We acknowledge and accept the decision(s) of the Committee in Case 299/06/19 as set out in your letter of 25 July 2019.
2. We undertake not to market or promote to veterinarians marketing material which uses the phrase

(i) “No contest Bovela is knocking out BVD” without at the same time, using qualifying wording e.g. an asterisk pointing to reasonable prominent wording which uses words such as “when used as part of an integrated approach to BVD such as culling of PI calves and biosecurity” or words to that effect.

(ii) “Bovela. Making BVD History” but without prejudice to the right to use “Bovela. Make BVD History”.