Attorney: FDA's Firm Line On Off-Label May Be Bid To Avoid Judicial Review
A controversial FDA memo released Wednesday (Jan. 18) defending the agency's oversight of off-label communication and raising concerns over the public health impact of such communication could be used as a tactic to stall potential future litigation against the agency, according to one key attorney. However, FDA argues the memo was written instead to follow up on, and further discussions, that occurred during a November 2015 public meeting on off-label communication.
The memo, issued in the final days of the Obama administration, reasserts FDA's stance against off-label communication, which has been opposed by industry and First Amendment advocates for years and which is expected to be revisited by the incoming administration.
The release of Wednesday's memo, “Public Health Interests and First Amendment Considerations Related to Manufacturer Communications Regarding Unapproved Uses of Approved or Cleared Medical Products,” prompted strong reaction from both industry and patient advocates, reminiscent of the debate during the public meeting held late last year.
Off-label communication advocate, Peter Pitts, president of the Center for Medicine in the Public Interest and former FDA associate commissioner, had harsh words for FDA.
“I wonder if this memo was written on an electric typewriter -- since it seems to represent thinking from the 1980s,” Pitts wrote to Inside Health Policy.
However, public health advocate, Diana Zuckerman, president of the National Center for Health Research, called the memo “a great summary of the issues,” which she argued “clearly explains how destructive off-label communication is to patients and to the health of all Americans.”
FDA cited discussions of First Amendment issues during its public meeting as an impetus for releasing Wednesday's memo.
“At our November 9-10, 2016, public meeting, a number of speakers addressed First Amendment considerations...To further this discussion, this section describes the different ways that courts and commentators have addressed the intersection of the FDA Authorities and the First Amendment,” FDA wrote.
However, others argued FDA had underlying motives for publishing the controversial memo.
Coleen Klasmeier, partner at Sidley Austin, told IHP that the memo was likely a litigation tactic, by which FDA could give the appearance of ongoing activity that would make it appear premature for a court to weigh in, possibly avoiding more blows against FDA's regulation of off-label communication.
FDA was recently dealt key blows over the constitutionality of its enforcement on off-label communication. Jurisprudence has shifted so significantly in recent years that one health law expert recently cautioned that restrictions on direct-to-consumer marketing of off-label uses could be loosened should the current First Amendment jurisprudence around commercial speech be taken to its logical end.
Pitts argued that the Obama administration may have put pressure on FDA to take a final stance on the issue. “What's most surprising about this memo is that it is so contrary to the spirit of what Drs. Califf and Woodcock have been saying over the past few months. My only conclusion is that the Obama HHS leadership gave the agency explicit direction as to tone, context and conclusions,” Pitts told IHP.
Lisa Dwyer, partner at King & Spalding and former senior policy advisor at FDA, also saw FDA's recent dump of documents on off label as the Obama administration’s last stand, but said the agency's arguments were not surprising.
“The series of documents that FDA issued this week related to the provision of off-label information to health care practitioners and the provision of healthcare economic information to payors are effectively the Obama’s Administration last statements defending their positions on those issues. The documents are helpful to the extent that they green light the sharing of certain information with health care practitioners and payors, which may have resided in gray areas previously. But, they do not articulate major policy shifts,” Dwyer wrote.
The agency stuck to its guns in laying out what it believes are the legal precedents protecting its current enforcement regime. Namely, FDA cites U.S. Supreme Court case Wisconsin v. Mitchell and district court case Whitaker v. Thompson to argue that FDA can use speech to establish a crime.
“Courts have held that the government’s reliance on speech as evidence of intended use under the FD&C Act does not infringe the right of free speech under the First Amendment based on Supreme Court precedent establishing that '[t]he First Amendment . . . does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent'...Under these rulings, the FDA Authorities do not directly prohibit or restrict speech by a firm about unapproved new uses of the firm’s medical products. Instead, the FDA Authorities regulate the introduction of unapproved, adulterated, or misbranded medical products into interstate commerce and the speech of firms may be relevant to establishing an element of a violation of those provisions,” the memo states.
The government had failed to convince a court of a similar argument in the high-profile case United States v. Caronia -- namely that the defendant's speech was used as evidence of intent, not that the defendant was being prosecuted for his speech. The court disagreed, vacating the conviction of the defendant and dealing a key blow to FDA's regulation of off-label speech.
“[T]he government's assertion now that it used Caronia's efforts to promote Xyrem for off-label use only as evidence of intent is simply not true. Even if the government could have used Caronia's speech as evidence of intent, the district court record clearly shows that the government did not so limit its use of that evidence. See Mitchell, 508 U.S. At 489-90,” the Caronia decision states.
Klasmeier similarly argued that Wisconsin v. Mitchell does not save FDA from their off-label woes. That case dealt with the use of speech as evidence of a crime, which does not offend the First Amendment, however, using speech as the source of illegality, rather than an element of the crime, does offend the First Amendment, explained Klasmeier.
FDA also took on the Caronia decision Wednesday -- namely the court's interpretation of a the key commercial speech case, Central Hudson Gas & Electric Corp. v. Public Service Commission, which laid out a four-part test for determining whether restrictions on commercial speech violate the First Amendment.
“There are several points worth noting regarding the Central Hudson evaluation conducted by the Second Circuit panel majority in United States v. Caronia. First, the panel majority limited its analysis to addressing the constitutionality of a specific ‘construction of the FDCA’s misbranding provisions to prohibit and criminalize off-label promotion’… rather than evaluating FDA’s implementation approach. Second, the panel majority did not consider multiple components of public health interests advanced by the FDA Authorities and FDA’s implementation approach,” the memo states.
FDA also argues that if the court had the opportunity to review a recently published study on adverse events tied to unapproved use, it may have come to a different ruling.
However, Klasmeier points out that the agency already brought up its issues with the Central Hudson interpretation in Caronia during another high-profile off-label case, Amarin v. FDA, and the judge in that case had dinged FDA for not appealing Caronia when it had a chance.
The agency also took on Wednesday what it saw as the public health risks associated with off-label use. First, FDA argued that unapproved uses increase risks to patients and lack evidence of effectiveness.
“More recent studies have similarly found that the majority of unapproved uses for which drugs are prescribed lack adequate evidence of effectiveness, and that the risk of adverse events is higher for unapproved versus approved uses, and even higher when the unapproved use is not supported by reliable scientific data,” the memo states.
FDA also disputed arguments that health care professionals can adequately discern an appropriate level of substantiation for off-label claims.
“Research has also shown that marketing of drugs toward health care providers drives prescribing practices, including prescribing for unapproved uses, and that commonly used marketing techniques can influence prescribing decisions in a manner that is not in the patient’s best interest. Studies have found that health care providers overestimate their knowledge of what uses are FDA-approved for drugs and assume that many unapproved uses are supported by sound scientific evidence when they are supported by uncertain or no evidence,” FDA continued.
Next, the agency expressed concern over protection of patients subject to off-label uses, highlighting comments made during the agency’s November public meeting.
“The same protections are not routinely provided when approved/cleared medical products are prescribed to patients for unapproved uses as part of their medical care. Several presenters at the November 9-10, 2016 public hearing who experienced adverse events associated with the unapproved use of approved or cleared medical products noted that they did not know, prior to using the product, that the use for which they were prescribed the product was unapproved,” the memo states.
Unapproved uses could also discourage clinical trial participation and programs, such as the Orphan Drug Designation and priority review programs, FDA argued.
“With regard to maintaining incentives for clinical trial participation, firms’ actions to promote widespread use of approved/cleared medical products for unapproved uses may undermine the clinical trial process, and thus ultimately impede the development of robust and reliable scientific data to better support medical decision-making,” FDA writes.
Zuckerman highlighted FDA's explanation of the potential research disincentives as a strength of the new memo.
“It makes it clear that off label communication takes away a company’s incentive to do needed research and therefore undermines the very fabric of the FDA as an agency designed to protect patients and consumers from unsafe and ineffective medical products,” Zuckerman wrote to IHP. “[I]t is a huge disincentive for companies -- why do research to see if the 'off label' use has benefits that outweigh the risks if the product can be promoted and widely sold without approval for that use? It’s not a coincidence that studies have found that off label uses are often ineffective and cause many complications,” Zuckerman continued.
However, Pitts slammed FDA for its critical view of the impact of off-label communication.
“The memo is written to show that allowing the truthful, accurate, and non-misleading of information will cause the earth to stop spinning on its access, research into new indications to cease, malpractice cases to explode, and misleading and misbranded communications to proliferate,” Pitts wrote.
FDA, however, also outlines how it believes off-label communication could advance public health, including supporting informed decision making for patient treatments and furthering scientific research, provided the information is scientifically valid and presented in a truthful, complete, balanced, transparent and objective fashion.
Some question whether FDA's newly hardened stance will survive a change of administrations.
“The FDA’s Memo on the First Amendment lays out the best case possible defending the current FDA policies on off-label. Indeed, it appears to be a statement that current policy is constitutional and FDA is prepared to continue to defend it in court. So far, that hasn’t worked. Meanwhile, we will have a new President and a new administration starting Friday. This is definitely not the last chapter in this novel,” John Kamp, executive director at Coalition for Healthcare Communication, wrote to IHP.
Pitts also told IHP that the memo runs contrary to the philosophy of the incoming administration and that he is curious to see what impacts a change in leadership will have.