Company Name: Merck & Co., Inc.
Public Availability Date: December 15, 2006

Document Sections:

INQUIRY LETTER
INQUIRY LETTER
APPENDIX
INQUIRY LETTER
STAFF REPLY LETTER

[INQUIRY LETTER]
November 17, 2006

U.S. Securities and Exchange Commission
Division of Corporation Finance
Office of the Chief Counsel
100 F Street, N.E.
Washington, DC 20549

Re: Merck & Co., Inc. Shareholder Proposal from People for the Ethical Treatment of Animals (the "Proponent")

Ladies and Gentlemen:

Merck & Co., Inc. (the "Company" or "Merck"), a New Jersey corporation, has received a shareholder's proposal (the "2007 Proposal") from Susan L. Hall for inclusion in the Company's proxy materials for the 2007 Annual Meeting of Stockholders (the "Proxy Materials"). I believe that the Proposal may be omitted under Rule 14a-8(i)(12) (resubmission) because proposals with substantially similar subject matters were submitted to shareholders in 2005 and 2006 (the "2005 Proposal" and "2006 Proposal," respectively) and the 2006 Proposal received less than 6% of the vote.

Therefore, I respectfully request that the Division of Corporation Finance (the "Staff") indicate that it will not recommend enforcement action to the Securities and Exchange Commission ("SEC") if the Company omits the Proposal.

The Proposals

The 2007 Proposal (included as Appendix A) provides:

RESOLVED, that the Board issue a report to shareholders on the feasibility of amending the Company's Policy on Animal Research to ensure that i) it extends to all contract laboratories and that is reviewed with such outside laboratories on a regular basis, and ii) it addresses animals' social and behavioral needs. Further, the shareholders request that the report include information to the extent to which in-house and contract laboratories are adhering to this policy, including the implementation of enrichment measures.

The 2006 Proposal (included as Appendix B as provided in Merck's 2006 Proxy Materials) provided:

BE IT RESOLVED, that the shareholders request that the Board issue a report to shareholders on the feasibility of amending the Company's Policy to ensure (a) that it extends to all contract laboratories and that it is reviewed with such outside laboratories on a regular basis, and (b) superior standards of care for animals who continue to be used for these purposes, both by the Company itself and by all independently retained laboratories, including provisions to ensure that animals' psychological, social and behavioral needs are met. Further, the shareholders request that the Board issue an annual report to shareholders on the extent to which in-house and contract laboratories are adhering to this policy, including the implementation of the psychological enrichment measures.

The 2005 Proposal (included as Appendix C as provided in Merck's 2005 Proxy Materials) provided:

RESOLVED, that the shareholders request that the Board:

1. Commit specifically to using only non-animal methods for assessing skin corrosion, irritation, absorption, phototoxicity and pyrogenicity.

2. Confirm that it is in the Company's best interest to commit to replacing animal-based tests with non-animal methods.

3. Petition the relevant regulatory agencies requiring safety testing for the Company's products to accept as total replacements for animal-based methods, those approved non-animal methods described above, along with any others currently used and accepted by the Organization for Economic Cooperation and Development (OECD) and other developed countries.

Rule on Resubmissions

Rule 14a-8(i)(12) provides:

(12) Resubmissions: If the proposal deals with substantially the same subject matter as another proposal or proposals that has or have been previously included in the company's proxy materials within the preceding 5 calendar years, a company may exclude it from its proxy materials for any meeting held within 3 calendar years of the last time it was included if the proposal received:

(i) Less than 3% of the vote if proposed once within the preceding 5 calendar years;

(ii) Less than 6% of the vote on its last submission to shareholders if proposed twice previously within the preceding 5 calendar years; or

(iii) Less than 10% of the vote on its last submission to shareholders if proposed three times or more previously within the preceding 5 calendar years.

Discussion and Analysis

The Staff recently concluded that the 2005 and 2006 Proposals were substantially the same subject matter. In Abbott Laboratories (March 22, 2006), the registrant sought to exclude a proposalvirtually identical to the 2006 Proposalon the basis that it was substantially the same subject matter as a proposalvirtually identical to the 2005 Proposalthat in the prior year had received less than 3% of the vote. In Abbott Laboratories, the registrant pointed out the Staff focuses

on the `substantive concerns' raised by the proposal as the essential consideration, rather than the specific language or corporate action proposed to be taken. The Staff has thus concurred with the exclusion of proposals under Rule 14a-8(i)(12) when the proposal in question shares similar underlying social or policy issues with a prior proposal, even if the subsequent proposal recommended that the company take different actions.

The registrant pointed out that the 2005 and 2006 Proposals both dealt with substantially the same substantive concernanimal-based testing by or on behalf of the registrant and its actions to address alleged abuses. The Staff agreed that the 2006 proposal could be omitted.

The differences between the 2006 and 2007 Proposals are trivial, and less significant than any differences between the 2005 and 2006 Proposals. Therefore, it is apparent that the 2005, 2006 and 2007 Proposals all deal with substantially the same subject matteranimal-based testing by or on behalf of the Company and actions urged to address alleged abuses.

The 2006 Proposal was the second time in two years that substantially the same subject matter was presented to Merck shareholders. The 2007 Proposal is excludible under rule 14a-8(i)(12)(ii) if less than 6 percent of votes were cast in favor of the 2006 Proposal. As shown in Appendix D, the 2006 Proposal received only 4.99% of the total votes castspecifically, 66,202,589 votes were cast in favor; 1,261,402,974 votes were cast against; 146,268,534 shares abstained from voting; and there were 372,292,209 broker non-votes.

Conclusion

I therefore am of the view that the 2007 Proposal is excludible under rule 14a-8(i)(12)(ii) and respectfully request that the Staff not recommend enforcement action to the SEC if is omitted from the Proxy Materials on that basis.

In accordance with Rule 14a-8(j)(2), we have enclosed six copies of this letter and both Proposals including the statements in support thereof. An additional copy is included, which we ask that you use to acknowledge receipt of this submission by date stamping and returning to me in the enclosed self-addressed envelope.

If the Staff believes that it will not be able to concur in our view that the Proposal may be omitted, we very much would appreciate the opportunity to discuss this issue in more detail with the appropriate persons before issuance of a formal response.

By copy of this letter, the Company is notifying the Proponent of its intention to omit the Proposal from the Proxy Materials.

For the Staff's information, the Company expects to print its Proxy Statement on or about March 1, 2007.

If you have any questions regarding this matter or require further information, please contact me at (908) 423-5671.

Thank you for your time and consideration.

Very truly yours,

MERCK & CO., INC.

/s/

Bruce Ellis
Counsel
Employee Benefits & Executive Compensation

Enc.

CC: Susan L. Hall
Legal Counsel
People for the Ethical Treatment of Animals

[INQUIRY LETTER]
November 2, 2006

Celia A. Colbert
Vice President, Secretary and Assistant General Counsel
WS 3A-65
Merck & Co., Inc.
One Merck Drive
Whitehouse Station, NJ 08889-0100

Re: Shareholder Resolution for Inclusion in the 2007 Proxy Statement

Dear Ms. Colbert:

Attached to this letter is a Shareholder Proposal submitted for inclusion in the proxy statement for the 2007 annual meeting. Also enclosed is a letter from PETA's brokerage firm, Morgan Stanley, confirming PETA's ownership of the Company's common stock acquired more than one year ago. PETA has held these shares continuously for more than one year and intends to hold them through and including the date of the 2007 annual meeting of shareholders.

Please contact the undersigned if you need any further information. If the Company will attempt to exclude any portion of this proposal under Rule 14a-8, please advise me within 14 days of your receipt of this proposal. I can be reached at 8506 Harvest Oak Drive, Vienna VA 22182. My business telephone number is (703) 478-5995 and my e-mail address is SusanH@peta.org.

Very truly yours,

Susan L. Hall
Legal Counsel

[APPENDIX]
ANIMAL WELFARE POLICY

RESOLVED, that the Board issue a report to shareholders on the feasibility of amending the Company's policy on Animal Research to ensure that: i) it extends to all contract laboratories and is reviewed with such outside laboratories on a regular basis, and ii) it addresses animals' social and behavioral needs. Further, the shareholders request that the report include information on the extent to which in-house and contract laboratories are adhering to the policy, including the implementation of enrichment measures.

Supporting Statement:

Our Company conducts tests on animals as part of its product research and development, as well as retaining independent laboratories to conduct such tests. Abuses in independent laboratories are not uncommon and have recently been exposed by the media. Merck has posted on its Web site a position statement on Animal Research. The Company, as an industry leader, is commended for its stated commitment to "the highest standards for humane handling, care and treatment of animals used throughout the company's laboratories." ¹

However, the disclosure of atrocities recorded at Covance, Inc., an independent laboratory headquartered in Princeton, New Jersey,² has made the need for a formalized, publicly available animal welfare policy that extends to all outside contractors all the more relevant, indeed urgent.³ Filmed footage showed primates being subjected to such gross physical abuses and psychological torments that Covance sued to enjoin People for the Ethical Treatment of Animals in Europe from publicizing it. The Honorable Judge Peter Langan in the United Kingdom refused to stop PETA from publicizing the film, and instead ruled in PETA's favor. The Judge stated in his opinion that two aspects of the video, namely the "rough manner in which the animals are handled and the bleakness of the surroundings in which they are kept ... even to a viewer with no particular interest in animal welfare, at least cry out for explanation." ⁴

Shareholders cannot monitor what goes on behind the closed doors of the animal testing laboratories, so the Company must. Accordingly, we urge the Board to commit to promoting basic animal welfare measures as an integral part of our Company's corporate stewardship.

We urge shareholders to support this Resolution.

-----FOOTNOTES-----
¹ http://www.merck.com/cr/science_innovation_and_quality/ key_issues_in_research/animals_policy/home.html

² PETA's undercover investigator videotaped the systematic abuse of animals at Covance's laboratory in Vienna, VA over a six month investigation.

³ In October 2005, Covance's Director of Early Development stated that "We've worked with just about every major company around the world" (http://www.azcentral.com/arizonarepublic/ eastvalleyopinions/articles/1021cr-edit21.html)

⁴ The case captioned Covance Laboratories Limited v. PETA Europe Limited was filed in the High Court of Justice, Chancery Division, Leeds District Registry, Claim No. 5C-00295. In addition to ruling in PETA's favor, the Court ordered Covance to pay PETA [pound]50,000 in costs and fees.

[INQUIRY LETTER]
December 4, 2006

BY REGULAR & ELECTRONIC MAIL: cfletters@sec.gov

Office of the Chief Counsel
Division of Corporation Finance
U.S. Securities and Exchange Commission
100 F. Street, N.W.
Washington, D.C. 20549

Re: Shareholder Proposal of People for the Ethical Treatment of Animals for Inclusion in the Proxy Statement of Merck & Co., Inc.

Ladies and Gentlemen:

This letter is filed in response to a letter dated November 17, 2006,¹ submitted to the SEC by Merck & Co., Inc. ("Merck" or "the Company"). The Company seeks to exclude a shareholder proposal submitted by People for the Ethical Treatment of Animals ("PETA").

The Company argues that the proposal under review is substantially the same as those filed in 2005 and 2006, and should be omitted pursuant to Rule 14a-8(i)(12). For the reasons which follow, we request that the SEC recommend enforcement action if the proposal is omitted.

The resolution under review is straightforward:

RESOLVED, that the Board issue a report to shareholders on the feasibility of amending the Company's Policy on Animal Research to ensure that i) it extends to all contract laboratories and is reviewed with such outside laboratories on a regular basis, and ii) it addresses animals' social and behavioral needs. Further, the shareholders request that the report include information on the extent to which in-house and contract laboratories are adhering to the policy, including the implementation of enrichment measures.

PETA agrees that the resolution under review is substantially similar to the resolution included in the Company's 2006 proxy statement. PETA disagrees that the 2007 and 2006 resolutions are in any way similar to the 2005 proposal.

I. The 2007 and 2006 Animal Welfare Resolutions Are Materially Different from the 2005 "Give the Animals Five" Proposal

The 2006 and 2007 resolutions have been informally referred to by PETA as the "Animal Welfare" resolutions. In 2006 it was filed at eight pharmaceutical companies and received considerable shareholder support, obtaining as much as 25.4% of the vote at one pharmaceutical company.² In 2007, it has been filed at six pharmaceutical companies, including Merck.

As noted above, the Animal Welfare resolution deals with the policies governing the treatment of animals in laboratories at pharmaceutical companies and their contractors, and seeks the implementation of measures such as chew toys and group housing, and asks for the issuance of a report. By contrast, the 2005 resolution asked that the Board i) commit to using internationally-accepted in vitro tests for assessing five specific human health endpoints (i.e., skin corrosion, skin irritation, skin absorption, phototoxicity and pyrogenicity); and ii) seek regulatory approval for using those five assays as total replacements for their animal based equivalents. That resolution was informally referred to as "Give the Animals Five" or the "GTA5" resolution. The GTA5 resolution was filed with 19 companies, both chemical and pharmaceutical, for inclusion in their respective 2005 proxy materials.³ At Merck, the GTA5 resolution received approximately 2.8% of the vote.

The Animal Welfare proposals and the GTA5 resolution are similar only in that both relate to new drug development, a critical part of the Company's business. The purpose of the GTA5 resolution was solely to have the Company change from outmoded, less reliable test methods and replace them with modern, more effective, scientific methods validated and proven using the latest scientific techniques. The thrust of the resolution was to urge the use of newer, better tests, and the fact that the tests replaced were animal tests is of no particular importance to the Company. The relevant issue is which test is better scientifically. The Animal Welfare proposal on the other hand is solely concerned with the care and treatment of animals. While both proposals touch upon issues relating to the class of beings known as "animals," they address entirely different substantive concerns and seek very different forms of implementation.

An analogy to clinical trials involving drug testing illustrates the point. Clinical trials involving human subjects are the final stage for attaining FDA approval for new drugs. Were the GTA5 resolution and the Animal Welfare resolutions to be analogized to the broad category of clinical tests on human beings they would address two distinct substantive issues:

The 2005 resolution would have requested that certain clinical trials on humans be abandoned entirely and replaced with the validated, stand-alone in vitro methods identified in the resolution, and further would have the Company seek regulatory approval for doing so.

The 2006 and 2007 resolutions would have asked that the Board report to shareholders on the feasibility of enacting corporate policies to ensure that human clinical trials are performed with the utmost care and with the highest ethical concerns, whether conducted in-house or through independently contracted organizations.

No one would seriously argue that the hypothetical resolutions are substantially the same merely because the subject matter is clinical trial drug testing. The first resolution seeks to have certain types of unnecessary clinical trials abandoned entirely with regulatory approval, and the second seeks to ensure that all clinical trials conducted are done so ethically. The same is true with respect to the GTA5 resolution and the Animal Welfare resolutions.

As the Staff is aware, other examples are rampant throughout commonly accepted practice for shareholder resolutions. For example, other broad subjects are "Company management policies," "compensation of officers," "product pricing," and so on. Year after year resolutions touching on these topics, but with different specific points and different action items, are filed at companies and not omitted under Rule 14a-8(i)(12).

Specifically on point, the Staff has previously stated that two proposals dealing with the use of animals in product testing do not necessarily implicate substantially the same subject matter. In Bristol-Myers Squibb Company (March 7, 1991), the Staff stated that Bristol-Myers Squibb could not omit a shareholder proposal dealing with animal testing under the "substantially similar" rule. The proposal under review in Bristol-Myers Squibb requested that the company cease all animal tests not required by law and stop selling certain products that required animal testing. The Staff held that the proposal was not substantially similar to a prior proposal which had requested a report detailing the scope of the company's use of animal tests in product testing. The Staff stated:

In arriving at this position the staff takes particular note of the fact that, while the four proposals concern the same broad issue (i.e., use of live animals in product development and testing), the present proposal recommends that the Company take a very active and defined course of action as to the broad issue (i.e., cease all animal tests not required by law and drop certain products). The previous proposals asked only that the Company take a passive cause of action (i.e., supply information). Accordingly, the staff does not believe the Company may rely on Rule 14a-8(i)(12) as a basis for omitting the proposal from its proxy materials. (Emphasis supplied.)

Precisely the same reasoning applies here. The GTA5 resolution called on Merck to actively commit to using five in vitro methods and seek regulatory approval to do so, while the Animal Welfare proposals asks that Merck issue a report to shareholders on the feasibility of implementing certain animal welfare policies.

Perhaps most telling is the fact that Merck did not regard the GTA5 resolution and the 2006 Animal Welfare as substantially similar at the time that the 2006 resolution was submitted, but is now making this argument more than one year after the fact. Since the GTA5 proposal only garnered 2.8% of the vote in 2005, the 3% threshold for bringing the same or substantially the same resolution was not met for 2006. Had Merck actually believed that the GTA5 resolution and the Animal Welfare resolution were substantially similar, the Company would have filed a no action letter following receipt of the 2006 resolution, since the 3% threshold was not met and the resolution could be excluded on that basis, if substantially similar. Merck apparently did not believe this to be the case and did not seek an exclusion.⁴

II. Prior Non-Concurrences on Animal Related Issues

During the last eighteen years, the Staff has ruled on a number of proposals submitted by PETA that implicate the use of live animals in consumer product testing. For example, in Procter & Gamble (July 27, 1988) the Staff denied the company's no-action application ruling that a proposal which requested that the company cease all animal tests not required by law and begin to phase out product lines that could not be marketed without animal tests, was not substantially similar to a prior proposal asking the company to report on the cost of live-animal testing. In its denial, the Staff stated "The proposal relates to the preparation of a report to shareholders regarding the scope and cost of live-animal testing in Company research."

Just as Procter & Gamble argued that the "underlying subject of both proposals is manifestly that of the Company's practice of conducting safety testing of products on animals," Merck argues that the proposals are substantially similar because "they all deal with substantially the same subject matter ..." (No-Action Letter, p. 3.) The Procter & Gamble opinion reflects the Commission's long-standing intent to focus on the substantive concerns raised by a proposal in order to determine whether the proposal should be excluded for being "substantially similar" pursuant to the policy objective embodied in Rule 14a-8(i)(12).

As was the case in Procter & Gamble, the GTA5 resolution and the Animal Welfare proposal were intended to address entirely distinct substantive concerns. To that end, they request that the Company take vastly different courses of actionthe former attempts to eliminate five specific animal tests and seek regulatory approval for the in vitro methods; the latter requests that a significant social and public policy concern, namely animal welfare, be addressed at the policy-making level. Thus, both the conceptual and substantive thrusts of the two proposals are manifestly distinct. Merck's attempt to scramble the two simply because they implicate the same broad issue is unpersuasive.

For the foregoing reasons, PETA respectfully urges the Staff not to concur that Merck may exclude the shareholder proposal pursuant to Rule 14a-8(i)(12).

Very truly yours,

Susan L. Hall
Legal Counsel
Research & Investigations

cc: Bruce Willis, Counsel

-----FOOTNOTES-----

¹ The Company's November 17th letter was not received by PETA until November 27, 2006. It was sent by regular mail postmarked November 20, 2006. A copy of the postmarked envelope is attached.

² The Animal Welfare resolution was presented at Wyeth in April 2006 and received 25.4% of the vote.

³ Approximately eight companies filed no action letters in an attempt to omit the GTA5 resolution from their 2005 proxy materials. The Staff refused to concur in any of the companies' positions. The various bases asserted in an attempt to omit the GTA5 resolutions were ordinary business operations, false and misleading, substantially implemented, vague, personal grievance, violation of proxy rules, and violation of law and State law.

⁴ To the extent that Merck relies upon Abbott Laboratories (March 22, 2006), PETA respectfully urges that the Staff's concurrence was ill-advised and that the controlling authority was and is Bristol-Myers Squibb Company (March 7, 1991).

[STAFF REPLY LETTER]
December 15, 2006

Response of the Office of Chief Counsel Division of Corporation Finance

Re: Merck & Co., Inc. Incoming letter dated November 17, 2006

The proposal requests a report on the feasibility of amending the company's current policies regarding animal welfare to extend to contract laboratories.

There appears to be some basis for your view that Merck may exclude the proposal under rule 14a-8(i)(12)(ii). Accordingly, we will not recommend enforcement action to the Commission if Merck omits the proposal from its proxy materials in reliance on rule 14a-8(i)(12)(ii).

Sincerely,

/s/

Rebekah J. Toton
Attorney-Adviser