Too Much, Too Soon: OPDP Issues Untitled Letter for Pre-approval Promotion

Just as many object to holiday music in November, the Office of Prescription Drug Promotion (“OPDP”) objected in an untitled letter issued earlier this month to claims made for an investigational drug.  The statements (since removed) appeared on a company website about an investigational drug for the treatment of brain cancer.

In the untitled letter (OPDP’s sixth this year, and eighth enforcement letter overall in 2019), OPDP provided the following examples of statements it characterized as promoting the drug as safe and effective:

• [the drug] “has cured a rare form of brain cancer”
• “Delivering human antibodies for the treatment of cancer”
• “After 5 years, patients treated with [the drug] have an overall survival rate of 25-30%, compared to 3% standard therapy, demonstrating antibodies are safe and effective.”

In addition to objecting to specific claims about the investigational drug, OPDP noted that the website did not “include information to clearly indicate that [the drug] is an investigational new drug that has not been approved for commercial distribution in the United States.”   OPDP also stated that these claims were “especially troubling” because brain cancer is associated with a poor prognosis.  While we do not know how or why this particular website came under scrutiny, this language, along with recent pre-approval promotion enforcement letters, raise the question of whether the individual statements would have drawn an untitled letter if the website had included other language making clear that the drug was investigational and not yet approved, or if it had been for an investigational drug being studied for the treatment of a less serious disease with other approved effective treatments.

OPDP’s focus on pre-approval promotion has not appeared to shift over the past several years.  As we have previously noted (here), FDA may feel it is on safer ground given that its First Amendment case losses have related to information disseminated about marketed products – not wholly investigational products.

This is the second pre-approval promotion letter OPDP has issued this year. The earlier letter concerned an imaging agent for recurrent prostate cancer.  In 2018, OPDP issued one letter about pre-approval promotion (out of a total of seven letters for 2018) for an investigational treatment for AML in which it noted, similar to its most recent letter, that the claims were especially concerning given the seriousness of the disease and the relatively few treatment options.  It may be that OPDP’s pre-approval promotion surveillance focuses on drugs for cancer and other very serious diseases with few available treatment options as this may be an area of greater risk of public harm.  In any event, despite an overall drop in total annual letters since 2013, pre-approval promotion appears to remain an area in which OPDP enforcement is active.