DTC and Regulatory Enforcement

FDA’s OPDP views nearly all industry communication – whatever the venue and intent – through a lens of advertising.  Certainly a big focus of regulatory enforcement has been direct-to-consumer advertising and for a long time, there has been guidance available for both print and broadcast.

From time to time, I have used this space to look at different communications platforms to look at OPDP enforcement patterns consulting the Warning/Untitled Letter database that I have put together.  As a reminder the database spans the years 2004-2014, inclusive. There are 294 letters covering over 1000 violations over that period and among other items tracked are the company involved, the product name, the treatment area, the type of communications vehicle and of course the violations, among others. I have pulled together an overview of those letters involving direct-to-consumer advertising.  Here are a few of the factoids:

  • Of the 294 letters in the database issued since 2004, 58 (19.7 percent) of them involved DTC communications vehicles making it the largest category of communications vehicles involving a letter, followed by Webpages/sites – 56 (19.1 percent) and then Sales Aids – 30 (10.2 percent);
  • Of the 58 letters regarding DTC advertising, 22 were Warning Letters (38 percent) which is slightly higher than the ratio of Warning versus Untitled Letters for all letters issued in this time frame (33 percent);
  • There were 18 letters involving Broadcast (either radio or TV) while there were 40 letters involving print ads (including Journal Ads);
  • The 18 letters for Broadcast DTC had a total of 46 violations (2.5 violations on average) while the 40 letters involving print ads had a total of 107 violations (2.7 violations on average).

The most common violation cited in Warning or Untitled letters is Risk Omission or Minimization.  Here is a profile comparison of  proportions for each:

One can see that Risk Minimization or Omission was the primary violation for DTC as well as all letters, but that the second highest  number of violations in DTC were superiority claims while the second highest for all letters was Overstatement of Efficacy, which may lead one to consider that DTC ads as a communications vehicle may be particularly susceptible to a presentation that implies superiority more readily than most other promotional communications vehicles.

Next time I do a comparison, I’ll look at Websites, the second most common communications vehicle involved in a violation that triggers a Warning or Untitled letter.

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Cloudy Forecast on Sunshine Act Data Release?

In June I put on a Webinar about the communications impact and considerations respecting the upcoming release of data from CMS under the terms of the Sunshine Act. That followed a blog posting from April. The point in both of these was to state that the release of data from earlier this past spring regarding Medicare payments to physicians might serve as a harbinger of what was to come in terms of media coverage with the release of financial data regarding payments from the medical products industry to physicians, teaching hospitals and others.

Specifically, the release of the Medicare payments resulted in headlines that focused on money paid to specific physicians as well to specific categories of medical practice with stories taking a national and regional focus.  One could expect much of the same from coverage of the Sunshine Act data, set to be published at the end of September.

However, on August 15 ProPublica reported that the government may actually be withholding one-third of the records from the data base that was to be published, though a press release by CMS on the data base makes no such mention of a delay.  A delay would have many likely side-effects, one of which is to impact the nature of the media coverage of the Sunshine Act data.  That could occur in at least two major ways.

First, it becomes somewhat challenging to report on the data if the data is incomplete – particularly to the tune of one-third of the data being withheld.  What is not known by such a disclosure is just as important as what is known.  The stories that would have been written had there been a complete set of data about which physicians – and which types of physicians – have received the most – and which therapeutic areas have had the greatest investment by companies – and which companies have paid the most – all will have to be qualified if data is withheld.  In other words, every story would include the caveat – “based on what we know now…” Certainly a release of partial data if that happens would have a diluting effect on the nature of the coverage.

Secondly, if there is a partial release the focus of the story migrates from the amounts of money tracked by the government to the way the amounts of money were tracked and reported.  Criticisms about the collection and publication of data will pull attention from the data itself and the stakeholders – to the government agency responsible for collecting it.

Originally the roll out of the Sunshine Act data would have likely had a focus on the actual amounts of money followed by a secondary wave of coverage that might have focused on the process for collecting and reporting the information.  A reporting of partial data may result in switching the waves of coverage – with the first focusing on the delay and the second wave on the financial aspects when the data is finally fully reported.

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Weekly Roundup 8.15.14

It is hard to believe that I see on Facebook many of my friends who are parents  talking about their kids headed back to school this week.  Back to school?  Back to school? Why when I was a lad, which was really not that long ago, school never began until the day after Labor Day.  I know because my birthday is the week before and it left me bitter that I never got to partake in the cupcakes in honor of my birthday that everyone else got during the school year.  As you can tell, I have never gotten over that.

What I have gotten over is this past week. Here is a little bit of what happened:

  • Fraudulent Ebola Products Alert - FDA issued a statement alerting consumers that they should be aware that there are products being sold online that are claiming to prevent or treat the Ebola virus.  The agency reminds consumers that, while there are experimental treatments under investigation, there are no products approved for use either as a treatment or vaccine.  The release refers to sources promoting the unapproved and fraudulent products but does not name them.
  • New Sleep Drug ApprovedThe agency announced approval of a new, first-in-class drug to treat insomnia called Balsomra (suvorexant).  Balsomra is an orexin receptor antagonist.  The agency states that the drug alters the signaling action of orexin in the brain – with orexin being a chemical that is involfved in regulating the sleep-wake cycle.  The most common side effect reported was drowsiness and the agency has asked the manufacturer to study next-day driving performance in people who take the drug.  The product will be accompanied by a Medication Guide.
  • FDA Approves First Non-Invasive DNA Colorectal Cancer Screening Test – Cologard was approved by FDA this week and it is the first stool-based colorectal screening test that would detect the presence of red blood cells along with DNA mutations that could be indicative of the presence of either cancers or precursors to cancers.  The test requires a stool sample and will detect the presence of hemoglobin and if a positive test is received, the patient will be recommended for a diagnostic colonoscopy, offering patients a new option in their approach to screening but does not change the current practice guidelines for colorectal cancer screening.

That’s it for me this week folks.  Have a good, safe and pleasant weekend.  Next week we will take a look at FDA enforcement around DTC advertising.  Watch for it!

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Weekly Roundup 8.7.14

August is supposed to be slow.  And lazy.  Laying around doing nothing.  That is what Marky the Cow is doing in this picture.  (For those of you who are new to Eye on FDA, Marky is a dairy cow in the state of Washington who was named for your’s truly.)  Marky the Guy though has not been laying around.  You may think I have disappeared, but I have just been very, very busy which means that there have been far fewer postings than usual. And in fact, last week there wasn’t even a Weekly Roundup.

But there is one this week and here it is:

  • FDA Publishes Fact Sheet on Ebola – Authorizes Test Use – The watchword of the week has been Ebola with the serious outbreak in Western Africa and the return home for treatment of two American medical personnel working there. This week, on August 5, FDA published “Fact Sheet for Patients:  Understanding Results from the Ebola Zaire (Target 1) Real-Time PCR (TaqMan) (EZ!rRT-PCR Test“.  The Fact Sheet is actually more of a Q&A and while interesting, it was also noteworthy that in answer to the first question – what is the Ebola Zaire Test – FDA stated that it the “test has not been cleared or approved by the U.S. Food and Drug Administration..” but “FDA has authorized the emergency use of this test under an Emergency Use Authorization (EUA)”.
  • CDC Puts Up Comprehensive Ebola Page – In addition, the Centers for Disease Control has put up a very comprehensive page on Ebola hemorrhagic fever on its web site covering topics such as transmission, diagnosis, signs and symptoms and treatment among other things.  The page appears to be updated daily with new information.  It includes fact sheets and chronologies and would appear to be an excellent resource for multiple stakeholders, including journalists.
  • FDA Modifies Hold on Investigative Ebola Treatment – A company that has been researching a possible treatment for Ebola announced this week that while a full clinical hold had been placed on the clinical trial of the investigative compound TKM-Ebola, FDA had conveyed to the them that the hold would be modified to a partial hold.  The Phase 1 clinical trial is looking at safety, tolerability and pharmacokinetics of administering the drug to healthy adult volunteers in single ascending doses and multiple ascending doses, though the company – Tekmira Pharmaceuticals – indicated in their release that the multi-ascending dose portion of the trial remains on hold.  The story was reported in media on August 7.

That’s it for me this week.  Have a good August weekend everyone.

Photo courtesy of Anne Becker.

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To Tweet or Not to Tweet? Or Even Retweet? FDA, Tweeting and Twitter

On June 27, FDA approved a new product – a rapid acting inhaled insulin indicated for the treatment of diabetes call Afrezza.  The agency announced the approval by sending out a press release.  The agency also sent out this tweet:

Note that the agency sent out the tweet announcing the product name and the indication. The generic or chemical name is not included, nor is there any risk information.

Also in June, FDA released some long awaited guidance documents, one of which addressed how companies can communicate about their products where there is a character space limitation, such as on Twitter, where 140 characters are the maximum allowed.  That guidance document enunciated FDA’s principles related to pharma communications about a medicine on a communications platform where there are character limitations and then provided a hypothetical example of a company’s tweet about a drug.  The drug was called NoFocus (remembering Hydrochloride) and it had a rather benign risk profile associated with it.

Here are some (but not an exhaustive, all inclusive list – for the complete set, see the Guidance Document) of the guidelines included for consideration when operating in a space with character limitations:

  • In general, benefit information should be accurate and non-misleading and reveal material facts
  • Benefit information should be accompanied by risk information that should be presented together with benefit information
  • The content of risk information should, at a minimum, include the most serious risks associated with the product
  • A hyperlink should also be provided to allow more direct access to risk information (there are further details regarding this use included in the guidance)
  • Prominence of risk information should be comparable to the benefit information
  • Firms should communicate both the proprietary (trade or brand) name and the established name

As seen from a slide in FDA’s Webinar on its social media guidance, the tweet that FDA designed for the company that makes NoFocus apparently compliant with FDA’s guidelines respecting the character space limitation of a tweet came out to be 133 characters and is located in blue box below.

If one compares the tweet that FDA designed for a company talking about its own medicine and compares it to the tweet sent by FDA about a product approval, one is forced to ask two questions:

  1. With all of the structure laid on a company’s tweet which apparently does not apply to FDA, could a company re-tweet the news sent out by FDA on its twitter feed?  My interpretation would have me answer “No”.
  2. If the point of the FDA regulations is to protect the public health, why does a tweet from a company carry so much more restriction than one from FDA? What is the public health interest here?  In it’s Webinar presentation regarding character space limitation, FDA included a slide entitled “Importance of this draft guidance” that told us that the guidance “advances FDA’s mission in protecting public health – regardless of the platform, truthful, accurate, and balanced product promotion best serves the public.”  Lacking in that slide, or anywhere in the presentation however, is any insight into how this guidance achieves that aim or exactly what the public health interest is that is being protected by all of the requirements placed on industry speech where there is a character limitation. We are left to speculate.

Under FDA’s guidance on use of character space limitation platforms would seemingly make Twitter unusable for a branded tweet unless one simply wanted to tweet an advertisement, which is what the NoFocus example essentially is reduced to. But Twitter is a news platform and the restrictions FDA has placed on companies has stripped away the possibility of adding to the structure laid out in the NoFocus example with any additional news once one has satisfied all of the regulatory requirements.  Fortunately for patients seeking news and information about a product, FDA is not so constrained when it sends out news of its own.

On the blog site, there is a tab that contains many resources related to the regulation of social media by FDA.

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