Regulation of Medical Products
Advertising and Promotion
James S. Cohen
jscohen@mwe.com
ACI FDA Boot Camp Master Class
September 23, 2011
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AGENDA
 Applicable laws, regulations, and standards
 Enforcement
 Recent trends
 Questions
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Advertising vs. Promotion
 Advertising
– 21 C.F.R. § 202.1(l)(1): Advertisements in published journals, magazines,
other periodicals, and newspapers, and advertisements broadcast through
media such as radio, television, and telephone communications systems
 Promotion
– Labeling
• FDCA § 201(m): All labels and other written, printed, or graphic matter (1) upon any
article or any of its containers or wrappers, or (2) accompanying such article
• 21 C.F.R. § 202.1(l)(2): Broad interpretation of scope of labeling
– Communication with health care providers (HCPs) and consumers
– Communication of health care economic information to formulary committees
• FDCA § 502(a): “analysis that identifies, measure, or compares the economic
consequences … of the use of a drug to the use of another drug, to another health
care intervention, or to no intervention.”
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Key Statutory and Regulatory Provisions
 Federal Food, Drug & Cosmetic Act (FDCA)
– § 301(a) and (d): Prohibits introduction of a misbranded or unapproved drug into
interstate commerce
– § 201(n): A drug is misbranded if labeling or advertising includes misleading
representations or fails to reveal material facts
– § 502(f): Drug or device is misbranded unless its labeling bears adequate directions
for use and adequate warnings
– § 502(n): Drug or device is misbranded unless its advertisement or other printed
matter includes a true statement of name and formula and a brief summary of side
effects, contraindications, and effectiveness
 FDA regulations
– 21 C.F.R. § 201.100 (c)(1) and (d)(1): Implements FDCA § 502(f)
– 21 C.F.R. § 202.1(e): Interprets FDCA § 502(n)
– 21 C.F.R. §§ 314.81(b)(3) and 601.12(f)(4): Requires submission of initial
advertisements and promotional labeling to DDMAC and APLB
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General Principles
 Claims must be supported by substantial evidence
 Claims must not be misleading
 Advertising and promotional materials must have fair balance
 Advertising and promotional materials must contain a brief summary of
the approved prescribing information
 Claims must be consistent with FDA-approved labeling; no pre-approval
promotion
 Certain exceptions:
– Reminder advertising (but not if combined with help-seeking ad)
– “Coming soon”/institutional promotion
– Health care economic information presented to formulary committees: claims
supported by “competent and reliable scientific evidence”
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FDA Guidance
 FDA guidance*
– Presenting Risk Information in Prescription Drug and Medical Device
Promotion (DRAFT – May 2009)
– Disclosing Risk Information in Consumer-Directed Print Advertisements: Brief
Summary (DRAFT – Feb. 2004)
– “Help-Seeking” and Other Disease Awareness Communications by or on
Behalf of Drug and Device Firms (DRAFT – Jan. 2004)
– Consumer-Directed Broadcast Advertisements (FINAL – Aug. 1999)
– Industry-Supported Scientific and Educational Activities (FINAL – Dec. 1997)
 Division of Drug Marketing, Advertising, and Communications (DDMAC)
information and FAQs:
– http://www.fda.gov/AboutFDA/CentersOffices/CDER/ucm090142.htm
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* Select guidance documents; not exhaustive
FDA Guidance on Presentation of Risk
Information
Presenting Risk Information in Prescription Drug and Medical Device Promotion
(DRAFT – May 2009)
 In addition to specific risk-related statements, FDA evaluates net impression – the
message communicated by all elements of the piece as a whole
 Reasonable consumer standard (consumers vs. HCPs)
 Factors FDA considers when reviewing risk communications
– Consistent use of language for benefits vs. risks; appropriate language for target audience
– Use of signals (e.g., headlines)
– Framing of risk information
– Hierarchy (i.e., ordering of information)
– Quantity
– Materiality and comprehensiveness
– Formatting
•
Print: Location, font size/style, contrast, use of white space
•
Non-print: Use of superimposed text, contrast, visual/audio interplay, audio considerations
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Ongoing FDA Rulemaking and Guidance
Development
 Proposed Rule: Presentation of Major Statement in DTC Television and Radio
Advertisements in a Clear, Conspicuous, and Neutral Manner (March 29, 2010)
– To implement DTC advertising provisions of FDAAA of 2007
 Process to develop guidance for promotion through Internet and social media
– Public hearing in November 2009; comments accepted through February 2010
– Focus areas include:
• Responding to unsolicited requests
• Fulfilling regulatory requirements when using tools with space limitations
• Fulfilling post-marketing submission requirements
• Accountability for on-line communications
• Use of links on the Internet
• Correcting misinformation
– Relevant new media include: Facebook, consumer DVDs, webcast videos, sales
representative videos on web, promotional videos on cnn.com and youtube.com, online
banner ads, and sponsored links
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Industry Standards – PhRMA
 Guiding Principles for Direct to Consumer Advertisements about Prescription
Medicines (March 2009)
– 18 guiding principles, including:
• Compliance with FDA regulations
• Responsible education of consumers about a drug and the condition(s) for which it may be
prescribed
• “Appropriate amount of time” to educate health care professionals prior to first DTC campaign
• Responsible discontinuation or alteration if a serious safety risk emerges
• Submission of new DTC advertisements to FDA prior to broadcast
• Acknowledgement if actor is being used, or if health care provider is being compensated for
appearance
• Celebrity endorsements should accurately reflect opinions, findings, beliefs, or experience
• Content and placement to avoid audiences that are not appropriate
– Annual certification by CEO and Chief Compliance Officer to PhRMA office of
accountability; public disclosure of certification
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Industry Standards – AdvaMed
 Guiding Principles for Direct to Consumer Device Advertising (March
2009)
– 13 guiding principles, including:
• Compliance with all applicable FDA and FTC statutes and regulations
• Language appropriate to the intended audience
• Consistency with FTC guidelines for endorsements and testimonials
• Disclosure if actor is being used, or if health care provider is being compensated for
appearance
• “Appropriate amount of time” to educate health care professionals prior to first DTC
campaign
• Responsible discontinuation or alteration if a serious safety risk emerges
• For restricted devices, submission of new DTC advertisements to FDA prior to
broadcast
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Non-Promotional Communications
 “Help-seeking”/disease awareness
 Scientific exchange
– Response to unsolicited requests for off-label information
– Dissemination of reprints with off-label information
– Presentation of data at scientific and/or professional meeting*
 Communications with consultants and investigators
– Subject to bona fide written arrangement
 Support for independent scientific and educational programs
 Press releases with data regarding investigational products*
* FDA recently clarified that a presentation or discussion of data would be considered promotional if it draws a conclusion
about a product’s safety or efficacy.
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Differences for Medical Devices and OTC
Products
 Shared regulation between FDA and FTC
– In general, FTC regulates advertising and FDA regulates labeling
– FDA regulates advertising for restricted medical devices
 Federal Trade Commission Act prohibits “unfair or deceptive
acts and practices” and “false advertising”
– False advertising: “misleading in a material respect”
– Claims substantiated by “competent and reliable evidence”
– No fair balance requirement
– Guidelines for endorsements and testimonials
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Enforcement
 FDA
– Informal actions: Untitled and warning letters
– Formal statutory authorities: Injunction (consent decree), seizure, civil
monetary penalties (for false and misleading DTC ads), criminal prosecution
 Federal and state prosecutors (criminal and civil)
– False Claims Act (off-label promotion)
 Product liability
 FTC
– Administrative challenge to unfair or deceptive advertising
 Lanham Act (false advertising)
 State laws governing unfair trade practices
 Self-Regulation – National Advertising Division of Council of BBBs
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Trends in FDA Enforcement
Presentation: Enforcement and Policy Update from DDMAC*
Thomas Abrams, DDMAC, FDA (September 20, 2010)
 Increasing number of untitled and warning letters
– 21 (2008)
– 41 (2009) – 28 untitled, 13 warning
– 52 (2010) – 39 untitled, 13 warning
 Common violations
– Omission and minimization of risk information
– Unsubstantiated claims of efficacy or safety
– Unsubstantiated comparative claims
– Promotion of unapproved uses
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FDA’s “Bad Ad” Program
 “Bad Ad” Program, launched May 2010
– HCP education to understand impact of misleading advertising and promotion
– HCPs encouraged to notify FDA: BadAd@fda.gov or 877-RX-DDMAC
 Year 1 results
– Received 328 reports of potentially untruthful or misleading promotion
(compared to average of 104 reports/year previously)
– Of 328 reports received: 188 were submitted by HCPs, 116 by consumers,
and 24 by representatives of regulated industry
– Of 188 reports submitted by HCPs, the agency undertook comprehensive
review of 87
– DDMAC indicates that the Bad Ad program led to:
• 3 warning letters (December 2010, March 2011, May 2011)
• 2 untitled letters (April and May 2011)
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FDA Approach to New Media
 Untitled and warning letters
– Most common violations are omission or minimization of risk information
– 15 of 52 DDMAC letters in 2010 were for promotion in new media
– March 26, 2009: Untitled letters to 14 sponsors, citing sponsored links for
approximately 50 products that did not provide risk information
• Caused immediate 59% decline in sponsored link exposures and 84% decline by
end of June 2010
 DDMAC has advised that companies follow existing regulations and
policies regarding promotion, pending further guidance
– Abrams (Feb. 2011, DIA): “There will be guidance on some more specific
matters, but there will be no new regulations or new standards. Look at our
recent Warning Letters involving social media, such as Facebook. These
Warning Letters cite existing rules and do not make new policy.”
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Recent DDMAC Letters for Online
Promotion
 August 2011: Untitled letter, LIPITOR website
– FDA cited “Online Resources” webpage for making efficacy claims about
CADUET, CHANTIX, and NORVASC without communicating any risk
information for these products
– The fact that a user could access risk information about CADUET, CHANTIX,
and NORVASC by clicking on additional links was, according to FDA,
“insufficient to mitigate the misleading omission of risk information” from the
Online Resources webpage
 July 2010: Untitled letter, TASIGNA website
– FDA noted that Facebook Share widget on website generated sponsorcreated information that could be shared with other Facebook users, and this
information
• Did not include any risk information associated with use of TASIGNA
• Did not adequately communicate TASIGNA’s FDA-approved indication (i.e.,
indication statements too brief), and
• Implied superiority over other products (“next generation” claim)
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Questions?
James S. Cohen
McDermott Will & Emery
600 13th Street NW
Washington, D.C.
202-756-8276
jscohen@mwe.com
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