The legal and regulatory landscape for controlled substances is in flux – telehealth prescribing rules have been extended to December 31, 2025, the new “HALT Fentanyl Act” heads to President Trump’s desk, all while recent opioid settlements signal sharper enforcement.  Against this backdrop, the American Conference Institute’s (ACI’s) 7th Annual Summit on Controlled Substances – Regulation, Litigation, and Enforcement is relaunching and is scheduled to take place from January 26-27, 2026 at the Virgin Hotels New York City in New York, NY.  The summit aims to deliver the essential strategies you need to respond, adapt, and lead in the legal and regulatory landscape for controlled substances.

Why You Can’t Miss It:

Hear firsthand from regulators, in-house counsel, compliance leaders, and enforcement specialists. Walk away from tailored sessions that empower you to:

• Decode shifting DOJ & DEA priorities to reduce legal and regulatory exposure
• Prepare for telehealth’s next chapter under the pending Special Registration rule
• Align your SOM programs with new DEA compliance standards
• Manage supply chain and quota risks through smarter strategies
• Stay ahead of the prosecution curve as federal and state enforcement intensifies

What You’ll Gain:

• Forward-looking insights to shape your 2026 legal, compliance, and operations roadmap
• Proven solutions for telemedicine prescribing, enforcement readiness, and enterprise risk
• Trusted expertise from past and current DEA, FDA, DOJ officials, top law firms, and leading in-house teams
• Cross-functional connections spanning pharma, biotech, telehealth, distributors, retail, and government

Hyman, Phelps & McNamara, P.C.’s Andrew J. Hull (and former Assistant U.S. Attorney, United States Attorneys’ Office) will moderate a discussion with the Hon. John Mulrooney, a former DEA Chief Administrative Law Judge (see our previous posts here and here), in a session titled “Perspectives From the Bench: The Ins and Outs of Trying a Diversion Case and Best Practices for Working With Your Outside Counsel.”

FDA Law Blog is a conference media partner.  As such, we can offer our readers a special 10% discount.  The discount code is: D10-999-FDA26.  You can access the conference brochure and sign up for the event here.  We look forward to seeing you at the conference!

In a case involving international horse-doping conspiracies, racetracks, and state horse racing regulators, the Second Circuit expanded the application of the FDC Act’s felony provisions.  There are two forms of criminal penalties for violations of the FDC Act contained in 21 U.S.C. § 333(a): a strict liability misdemeanor and a felony.  Except in cases of repeat convictions, felonies require the government to prove the defendant also acted with “intent to defraud or mislead.”  21 U.S.C. § 333(a)(2).

Despite this specific intent requirement, the FDC Act does not identify who the defendant must intend to defraud or mislead.  Given the FDC Act’s role as a public health and welfare statute, it’s to be expected that the object of the ruse would, at a minimum, be FDA and patients/consumers.  And that’s generally how federal courts have interpreted the intent element.  See, e.g., United States v. Ellis, 326 F.3d 550, 554 (4th Cir. 2003) (upholding a felony conviction where evidence supported that defendant intended to defraud or mislead FDA by failing to register his establishment with the FDA); United States v. Haga, 821 F.2d 1036, 1041 (5th Cir. 1987) (explaining that FDC Act felony prosecutions are ordinarily premised on intent to defraud or mislead “purchasers”).  Over the years, federal prosecutors have sought—and federal courts have granted—an expansion of this element to include intent to defraud or mislead other federal or state regulators tied to consumer food and drug laws or the practice of medicine.  See, e.g., United States v. Kaplan, 836 F.3d 1199, 1214 (9th Cir. 2016) (upholding felony conviction on evidence of intent to defraud or mislead the state medical board); United States v. Mitcheltree, 940 F.2d 1329 (10th Cir. 1991) (holding that the object of the intent to defraud or mislead can be an “identifiable drug regulatory agency involved in consumer protection”).

The Second Circuit’s recent decision in United States v. Fishman, No. 22-cr-1600 (2d Cir. Sept. 22, 2025), interpreted the application of the intent element to apply to additional types of state regulators.  Fishman, a licensed veterinarian, developed performance enhancing drugs (PEDs) that could not be detected in a drug test.  For years, he worked with a racehorse trainer, Navarro, to distribute these PEDs to dope horses entered into races around the world (you can read more about the doping scheme here and here).  Navarro pleaded guilty, but Fishman and his salesperson went to separate trials where they were both convicted of conspiracy to manufacture and distribute misbranded or adulterated drugs with intent to defraud or mislead.

On appeal, the defendants challenged the district court’s jury instructions that felony intent to defraud or mislead could be satisfied by evidence that defendants acted with intent to “defraud state horse racing regulators.”  The defendants argued that the FDC Act’s purpose is not to regulate the competitive integrity of horse racing.  Instead, they contended, the purpose and structure of the FDC Act is to protect consumers and purchasers, leaving only three categories of possible victims: (1) the horse trainers who purchased the PEDs (but they did so knowingly and were not deceived); (2) the horses (defendants argued they were incapable of being defrauded or misled); and (3) the FDA or “other comparable state agencies that regulate drugs, as opposed to governmental entities that regulate racing.”  Id. at 16-17.

Sadly, the Second Circuit did not contemplate the weighty philosophical question of whether a horse can be deceived or misled.  But it did reject the defendants’ argument that only a state agency that regulates drugs could trigger the intent element.  In upholding the defendants’ convictions, the court stated:

[W]e do not agree . . . that the [FDC Act] reaches only fraudulent or misleading conduct directed at certain targets.  What matters under this statute is not the identity of the target of a defendant’s intent to defraud or deceive.  What matters is the connection between the fraudulent intent and the offense of adulteration and misbranding: Was the misbranding undertaken with the intent to deceive?

Id. at 17.  In other words, the object of the fraudulent action is irrelevant for determining the scope of the felony.  Instead, the important issue is whether the violation of the FDC Act is “connected” to the intent to defraud or mislead some government agency.  Because the evidence at trial supported that some state racing regulators prohibit administering unapproved drugs to horses, the court upheld the conviction because the fraudulent intent of defendants was linked to the misbranding of the PEDs.  Id. at 24-25.

Bottom line: by refusing to limit the type of government regulators that can be the object of an intent to defraud or mislead, the Fishman decision provides a broad application of what constitutes a felony under the FDC Act.  While the Second Circuit was careful to talk only about state regulators in its analysis, the decision leaves open the possibility that the government could pursue felony charges where there is evidence of intent to defraud or mislead parties other than government actors or consumers as long as there is a connection between the FDC Act violation and the fraudulent intent.  The court’s reasoning presents a slippery slope with no clear stopping point.  As the Supreme Court noted about a decade ago, the FDC Act’s primary purpose is “to protect the health and safety of the public at large.”  POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102, 108 (2014).  Recognizing that primary purpose, other courts may rein in such a broad interpretation of the intent element by holding that only evidence of intent to defraud or mislead parties tied to public health and safety—not horse racing or other activities—can satisfy this type of FDC Act felony conviction.

The California Board of Pharmacy (the “Board”) implemented a novel approach to address employee theft as one aspect of the opioid epidemic in 2018 by requiring pharmacies and clinics to reconcile their quarterly schedule II inventories.  The approach was novel because to our knowledge, no other regulator, not the Drug Enforcement Administration (“DEA”), not other states, require pharmacies and clinics to physically inventory controlled substances, then reconcile those inventories with receipts and dispositions.  DEA registrants, for example, are only required to take a physical inventory of all controlled substances on-hand at least once every two years and there is no reconciliation requirement.  21 C.F.R. § 1304.11(c).  Most states mirror the federal biennial inventory requirement.

Inventory Activities and Reconciliation Reports

In 2018 the Board reasoned “[by] requiring at least a quarterly inventory of all Schedule II controlled substances, pharmacists, pharmacies, and clinics will be better equipped to spot and stop employee drug diversion from the pharmacy earlier and prevent excessive drug losses from occurring.”  Initial Statement of Reasons, Reconciliation and Inventory Report of Controlled Substances, California Board of Pharmacy, 1.  We blogged at the time on the new requirement here.

Four years later in 2022 the Board significantly expanded the inventory activities and inventory reconciliation requirements for additional “federal controlled substances.”  Cal. Code regs. tit. 16, § 1715.65.  “Inventory activities” include inventory and all other functions sufficient to identify controlled substance losses, and policies and procedures must identify such functions outside of the required inventory reconciliation process.  Id. § 1715.65(a)(3)(B).  California pharmacies and clinics must now create inventory reconciliation reports for:

a. Federal schedule II controlled substances, at least once every three months;

b. These non-schedule II substances in the following strengths per tablet, capsule, other unit, or specified volume, at least once every 12 months:

• • • Alprazolam (1 mg./unit);
    • Alprazolam (2 mgs./unit);
    • Tramadol (50 mgs./unit); and
    • Promethazine/Codeine (6.25 mgs. Promethazine and 10 mgs Codeine per 5 mgs. of product)

c.  All other controlled substances:

• • • No later than three months after discovery of a “reportable loss” (discussed later);
    • Such reports must cover the period from the last physical count of the drug before the loss through the discovery date; or
    • At least once every two years. Id. § 1715.65(a).

Inpatient hospital pharmacies are required to prepare inventory reconciliation reports of federal schedule II substances, and the specific alprazolam, tramadol, and promethazine with codeine formulations quarterly.  The reports must “include controlled substances stored within the pharmacy, within each pharmacy satellite location, and within each drug storage area in the hospital under the pharmacy’s control.”  Id. § 1715.65(g).

Pharmacy and clinic policies and procedures must include inventory activities and inventory reconciliation reports.  The Pharmacist-in-Charge (“PIC”) or consulting pharmacist must review all inventory activities and inventory reconciliation reports.  Id. § 1715.65(b).  Inventory reconciliation reports must include:

1. An actual physical count rather than an estimate of federal controlled substances in inventory;

• • • Inpatient hospitals and licensed correctional pharmacies using automated delivery systems may account for their inventory by other than a physical count; and
    • An individual who takes the inventory must sign and date the inventory or the report that contains it;

2. A review of all acquisitions and dispositions of every “federal controlled substance” covered by the report since the last inventory reconciliation report covering the controlled substance;
3. A comparison between the physical counts and acquisitions/dispositions to determine variances between what must be accounted for with what is accounted for;
4. Identification of all records used to compile the report;

• • • The records must be maintained and readily retrievable in the pharmacy or clinic for three years;

5. Identification of each individual involved with preparing the report;
6. Possible causes of overages; and
7. Date and signature of the PIC or professional director if a clinic. Id. § 1715.65(c), (e)(1).

So, California pharmacies and clinics must take a physical inventory for all controlled substances depending upon their schedules unless there is a reportable loss.  Then, in creating inventory reconciliation reports, they must conduct what amounts to accountability audits to determine whether they can account for all controlled substances handled since the prior inventory.  Depending on controlled substance quantities and the underlying records, whether maintained in hardcopies or electronically, it may be more advantageous and less burdensome for pharmacies and clinics to take inventories and create inventory reconciliation reports more frequently than annually or biennially.  More frequent reconciliations will detect potential variances earlier and will not require pharmacies or clinics to reconstruct activities for so long a period.

Reporting Losses

Pharmacies and clinics must report identified losses and known causes to the Board within 30 days of discovery unless the loss was caused by theft, diversion or self-use, which require reporting within 14 days of discovery.  Id. § 1715.65(d).

An “owner” of a pharmacy or clinic must report each controlled substance loss to the Board identifying every substance, quantity and strength.  Id. § 1715.6(a) and (b).  The Board has identified reportable controlled substance losses not attributed to theft, diversion or self-use.  Losses not attributable to these specific causes must be reported if they are equal to or exceed:

1. 99 tablets, capsules or other oral medication dosage units;
2. 10 units of single-dose injectable medications, lozenges, film such as oral, buccal and sublingual, suppositories, or patches; or
3. 2 or more multi-dose vials, infusion bags or any other unit. Id. § 1715.6(a)(1).

Any other loss of a controlled substance regardless of quantity attributed to employee theft must be reported to the employee’s licensing board.  Id. § 1715.6(a)(2).  Any other loss the PIC determines is significant must also be reported.  Id. § 1715.6(a)(3).  The Board has clarified reportable quantities of controlled substance formulations regardless of schedule.  In contrast, DEA requires registrants to report all thefts and any “significant losses” regardless of schedule or quantity.  21 C.F.R. § 1301.76(b).

FDA’s September 22, 2025 News Release and announcement in a prepublication Federal Register notice (to be published on September 24, 2025) that GlaxoSmithKline’s (“GSK’s”) Wellcovorin (leucovorin calcium) Tablets, EQ 5 mg base and EQ 25 mg base, which was approved under NDA 018342 (initially approved on July 8, 1983), would be reapproved took the pharmaceutical industry and the food and drug law bar by surprise.  After all, it’s a pretty rare occurrence that an application for which FDA has officially withdrawn approval is brought back to life—and with the same NDA number instead of under a new NDA number.  But, it is possible.  As FDA’s regulation at 21 C.F.R. § 314.150(c) explains:

FDA will withdraw approval of an application or abbreviated application if the applicant requests its withdrawal because the drug subject to the application or abbreviated application is no longer being marketed, provided none of the conditions listed in paragraphs (a) and (b) of this section applies to the drug.  FDA will consider a written request for a withdrawal under this paragraph to be a waiver of an opportunity for hearing otherwise provided for in this section. Withdrawal of approval of an application or abbreviated application under this paragraph is without prejudice to refiling. [(emphasis added)]

And, as FDA explained in the Agency’s Federal Register notice, there is authority under 21 C.F.R. § 314.160 for reapproving a withdrawn NDA:

The most recently approved labeling for Wellcovorin (leucovorin calcium) tablets, EQ 5 mg base and EQ 25 mg base, stated that the drug products were indicated to diminish the toxicity and counteract the effects of impaired methotrexate elimination and of inadvertent overdosages of folic acid antagonists.  In the Federal Register of September 22, 1999, FDA announced that it was withdrawing approval of NDA 018342 after GSK notified the Agency that Wellcovorin (leucovorin calcium) tablets, EQ 5 mg base and EQ 25 mg base, were no longer marketed and requested that the approval of the application be withdrawn under 21 CFR 314.150(c).  Subsequently, in the Federal Register of April 28, 2017, FDA announced its determination that Wellcovorin (leucovorin calcium) tablets, EQ 5 mg base and EQ 25 mg base, were not withdrawn from sale for reasons of safety or effectiveness under 21 CFR 314.161.

Under 21 CFR 314.160, FDA, on its own initiative or upon request of an applicant, may, on the basis of new data, approve an application or abbreviated application which it had previously refused, suspended, or withdrawn approval.  With respect to leucovorin calcium tablets, FDA has conducted a systematic analysis of literature published between 2009-2024 and has determined that the information supports a finding that orally administered leucovorin calcium tablets improve certain symptoms in adults and pediatric patients with cerebral folate deficiency (CFD). . . .

Subsequent to the approval of NDA 018342 for Wellcovorin (leucovorin calcium) tablets, EQ 5 mg base and EQ 25 mg base, that is being announced in this Notice, FDA intends to request that GSK submit a prior approval supplemental NDA to revise the prescribing information for Wellcovorin (leucovorin calcium) tablets, EQ 5 mg base and EQ 25 mg base, to include the essential scientific information needed for the safe and effective use of these drug products for the treatment of CFD in adults and pediatric patients.

GSK has already stated that the company “will submit a supplemental New Drug Application (sNDA) for Wellcovorin (leucovorin) to update the label to include an indication for the treatment of cerebral folate deficiency (CFD).”

Historically—at least since about 2009 when FDA began using the record-keeping system for drug applications known as DAARTS (Document Archiving, Reporting and Regulatory Tracking System) (see our prior post here)—FDA has required the submission of a new NDA (and assigned a new NDA number) when confronted with the reapproval of a previously withdrawn NDA.  From what we understand, DARRTS has limitations that prevent reusing a previously withdrawn NDA number.  Apparently, in the pre-DARRTS system FDA used, known as COMIS (Center-wide Oracle-based Management Information System), a withdrawn NDA number could be resurrected.

How FDA avoided the DAARTS system limitation is unclear, but it is the reuse of the Wellcovorin NDA number “018342” that piqued this blogger’s interest.  Why?  Because there’s an unanswered question about the payment of the PDUFA application fee for what was presumably a resubmitted and reapproved NDA 018342.  (By the by, there’s also an unanswered question about what, if any, data—clinical, non-clinical, and manufacturing—was resubmitted and reapproved under NDA 018342, particularly given that GSK has stated that the company “does not manufacture or market leucovorin, which is available in generic formulations in the US.”  Is it the same data included in the NDA approved 42+ years ago?  And if so, then how the heck did those data meet FDA’s enhanced 2025 standards??)

Under the statute, the PDUFA application fee, which stands at $4,310,002 in Fiscal Year 2025 for an application requiring clinical data and $2,155,001 for an application not requiring clinical data, must be paid by “[e]ach person that submits, on or after September 1, 1992, a human drug application. . . .”  The statute includes an exception for a previously filed application, which states:

(C) EXCEPTION FOR PREVIOUSLY FILED APPLICATION.—If a human drug application was submitted by a person that paid the fee for such application, was accepted for filing, and was not approved or was withdrawn prior to approval (without a waiver), the submission of a human drug application for the same product by the same person (or the person’s licensee, assignee, or successor) shall not be subject to a fee under subparagraph (A). [(Emphasis added)]

That exception does not apply here.  NDA 018342 was submitted to FDA in 1979, amended in November 1980 to add an additional 25 mg strength, and approved on July 8, 1983.  That’s nearly a decade before PDUFA was enacted.  Given that fact, NDA 018342 cannot be a “human drug application [that] was submitted by a person that paid the fee for such application.”

So, did GSK pay the the Fiscal Year 2025 PDUFA application fee for Wellcovorin NDA 018342?  Maybe we will find out soon if FDA posts an Approval Package for the new approval.  If not, then how could FDA lawfully allow an exception?  Or perhaps it could be an oversight?  We’re waiting with bated breath. . . .

While we wait, perhaps ponder this: Why would FDA go through such an obtuse resurrection process—and one not requested by GSK—when the statute already provides a route to update the labeling of generic Wellcovorin without GSK having to do anything at all?

We’re talking about the “Making Objective Drug Evidence Revisions for New Labeling Act of 2020” (or “MODERN Labeling Act”), which was passed as part (Section 324) of the Consolidated Appropriations Act, 2021 (Public Law No. 116-260).

The MODERN Labeling Act amended the FDC Act to add Section 503D, titled “Process to Update Labeling for Certain Generic Drugs,” to provide a process to update the labeling for generic drugs where approval of the brand-name drug has been withdrawn for other than safety or effectiveness reasons.  (Sound familiar??)  Specifically, a “covered drug” eligible to go through the label update process outlined in the statute is one:

(A) for which there are no unexpired patents included in the [Orange Book] and no unexpired period of exclusivity;

(B) for which the approval of the application has been withdrawn for reasons other than safety or effectiveness; and

(C) for which—

(i)(I) there is new scientific evidence available pertaining to new or existing conditions of use that is not reflected in the approved labeling;

(II) the approved labeling does not reflect current legal and regulatory requirements for content or format; or

(III) there is a relevant accepted use in clinical practice that is not reflected in the approved labeling; and

(ii) updating the approved labeling would benefit the public health.

Assuming FDA considered the MODERN Labeling Act here for generic Wellcovorin, then why not take this pathway?  Is it that the process required by the statute is too long?  Or maybe there were concerns about the “Approval Standard” “Rule of Construction” added to FDC Act § 503D by the MODERN Labeling Act: “This section shall not be construed as altering the applicability of the standards for approval of an application under section 505.  No order shall be issued under this subsection unless the scientific evidence supporting the changed labeling meets the standards for approval applicable to any change to labeling under section 505.”

The American Conference Institute’s (ACI’s) Pharma & Biotech Patent Litigation USA forum is scheduled to take place from October 14-15, 2025 at 3 Times Square in New York, NY.  Billed as “the new US Gold Standard event for pharma and biotech patent litigation,” ACI’s Forum on Pharma and Biotech Patent Litigation USA brings together leaders in life sciences patent litigation for a two-day deep dive into winning patent litigation strategies.  ACI’s highly skilled faculty – comprised of premier in-house and law firm patent litigation counsel – will bring you up to date on the latest challenges in life sciences patent litigation.  This is your one-stop shop for updates, analyses, networking, and strategies to keep you in control of the patent.

Key highlights at this year’s event include:

• Lightning round session on emerging trends in Hatch-Waxman litigation
• Analysis of new Orange Book and related combination product patent concerns
• Dance lessons: what steps have we learned through 15 years of BPCIA litigation?
• Amgen, Cellect, Amneal, Xencor and More! Understand how these cases are game changers to your patent litigation strategies
• Pharma and biotech patents in antitrust the crosshairs: looking beyond the settlement to new anticompetitive challenges
• Remedies and damages: evaluating at the wide swath of possibilities, options, and penalties for patent infringement

Attend and gain insights into new legal theories for your patent case in chief, as well as analyses of substantive case law, and practical litigation strategies and takeaways for your next patent trial and proceedings.  Hyman, Phelps & McNamara, P.C.’s Kurt R. Karst will speak on a panel along with Polsinelli PC’s Chad Landmon and Venable LLP’s Christina Schwarz, titled “Exploring New Litigation Concerns from Amneal and the FTC’s Latest Call for Orange Book Delistings.”

FDA Law Blog is a conference media partner. As such, we can offer our readers a special 10% discount.  The discount code is: D10-999-FDA26.  You can access the conference brochure and sign up for the event here.  We look forward to seeing you at the conference!

On September 19, 2025, FDA published in the Federal Register a final rule reverting the regulatory definition of “in vitro diagnostic products” (IVD products) in 21 C.F.R. § 809.3 to the text as it existed prior to the effective date of the May 2024 LDT Rule.

As we suspected when we blogged on the OIRA notice for this action, this new rule implements the March 31, 2025 Federal District Court decision vacating the LDT Rule, by removing the words “including when the manufacturer of these products is a laboratory,” which the LDT Rule added to the IVD products definition. In a footnote, the new rule notes that reverting the regulation’s text also changes the updated reference to the statutory definition of “device” from “section 201(h)(1)” back to “section 201(h),” which is less specific but still accurate.

Because the LDT Rule was already vacated by a Federal Court, FDA determined that this new rule is exempt from notice and comment rulemaking under 5 U.S.C. 553(b)(B), as it would be “impracticable, unnecessary, or contrary to the public interest” to follow such procedures.

The new rule provides an economic analysis of the impact of the LDT Rule not being in effect. Though it uses the primary estimates for the benefits and costs reported in the May 2024 LDT Rule, it adds that:

Portions of the broader benefit and cost uncertainty ranges overlap, thus indicating the possibility of negative net benefits of the Rule and positive net benefits of its no longer being in effect. Moreover, the quantitative estimates omit various regulatory consequences that are especially challenging to assess, such as any possible effect on innovation related to laboratory-developed tests (LDTs) associated with the Rule.

Plaintiffs argued in their case against the LDT Rule that FDA understated the costs associated with the rule by several orders of magnitude.  Although quite belated, it is nevertheless gratifying to see FDA acknowledge that its economic impact analysis did not adequately consider other critical factors such as the effect of the rule on innovation.

The new rule is signed by HHS Secretary Kennedy, which is unusual insofar as the FDA Commissioner almost always signs rules originating from FDA. It’s unclear what, if anything, this move is intended to signal, though it’s certainly consistent with this Administration’s general effort to centralize regulatory authority and decisionmaking and Secretary Kennedy’s specific penchant for directing FDA priorities, including its regulation of food and color additives and direct-to-consumer pharmaceutical advertising.

There are officially signs of life for FDA’s rare pediatric disease priority review voucher (RPD PRV) program!  On September 17, the House Committee on Energy and Commerce marked up the Give Kids a Chance Act of 2025 (H.R. 1262), legislation that would reauthorize FDA’s RPD PRV program and strengthen the agency’s authority in several related areas.  The bipartisan bill originally was a piece of a broader healthcare package that nearly passed late last year but was sidelined in the closing days of the 118^th Congress.  The current iteration of this bill has languished for over seven months since being introduced in the House of Representatives and referred to the House Committee on Energy and Commerce on February 12. Notably, the bill has accumulated 285 cosponsors, which amounts to over 65% of the total number of voting members of the Chamber, which indicates substantial support despite this inaction.

At the heart of the bill is the revival of the RPD PRV program, which expired in part in December 2024; this date marked the deadline by which a drug product could be designated as treating a rare pediatric disease.  Looming now is the second deadline date in the law: the sunset to receive an RPD PRV, with eligible applications needing to be approved by September 30, 2026.  Originally created in 2012, the program was designed to incentivize the development of treatments for rare pediatric diseases by awarding transferable (i.e., saleable) vouchers that allow faster FDA review of future products.  To date, 56 vouchers have been issued across roughly 40 rare conditions—including sickle cell disease, AADC deficiency, spinal muscular atrophy, Duchenne muscular dystrophy, and Friedreich’s ataxia—creating significant financial incentives to bring much-needed therapies to patients that might not otherwise have been developed.  As we previously blogged, an analysis from National Organization for Rare Disorders found that among the 39 rare pediatric diseases for which vouchers had been awarded at that time, only three had any FDA-approved products on the market before the program’s enactment, suggesting that the incentive has been very effective.  If enacted, the program would be extended through September 30, 2029.  Notably, the bill as currently drafted would do away with the two-part deadline (first for designation and then for approval) as it currently exists, replacing it with a single deadline date after which FDA cannot award vouchers.

There was enthusiasm late last year when the committee unanimously advanced a similar bill in 2024 prior to the December 2024 expiration of the first deadline date in the law, reflecting the bipartisan appeal of incentivizing pediatric rare disease research.  However, given the lack of further action and even less up until this point in 2025, patient advocacy groups have had to champion reauthorization.  See, for example, this call to action by the EveryLife Foundation for Rare Diseases (“EveryLife Foundation Asks Advocates to Urge Your Member of Congress to Support the Reauthorization of the Rare Pediatric Disease PRV Program”).  Patient advocates, including HPM’s own James Valentine, have echoed and amplified this sentiment.  In his remarks to the Rare Disease Congressional Caucus Briefing last week, Mr. Valentine stated that “the Rare Pediatric Disease Priority Review Voucher program [and] patient-focused drug development initiatives—all reflect bipartisan recognition that rare disease drug development is different, and that patients must have a central voice.”

Beyond RPD PRVs, the Give Kids a Chance Act would expand FDA’s oversight and clarify certain of its regulatory authorities:

• Pediatric cancer trials:  FDA could require pediatric studies of combination therapies of certain molecularly targeted cancer drugs when the drugs are owned by the same company or are generics.
• Enforcement authority:  FDA could take enforcement action against drugmakers that fail to meet pediatric study obligations under PREA, aligning these requirements with other post-market study mandates.
• Orphan drug exclusivity:  The bill would codify FDA’s interpretation of orphan drug exclusivity (i.e., seven-year market exclusivity for orphan drugs prevents the approval of the same drug for the “same approved use or indication within such rare disease or condition,” as opposed to the previous and more general “same disease or condition.”).  The bill also defines the term “approved use or indication.” This would narrow the scope of exclusivity so that it applies only to the indication rather than the entire designated disease (as previously discussed here).
• Organ transplant system:  The legislation authorizes FDA to collect registration fees from Organ Procurement and Transplantation Network members—a public-private partnership that manages the U.S. organ donation and transplantation system—to fund transplant operations.
• Global presence:  FDA would be permitted to establish an office in a country that is a party to the Abraham Accords (i.e., Israel and four Arab nations: the United Arab Emirates, Bahrain, Sudan, and Morocco). This provision is intended to enhance supply chain security and leverage innovation in the region, according to a cosponsor.

The bill’s markup signals fresh momentum for legislation that stalled at the end of 2024, when broader negotiations were derailed.  For rare disease product developers, the bill offers the continuation of a powerful incentive that patients and their families, drug developers, and other stakeholders have been pleading for. Given this momentum from a wide variety of stakeholders, including the numerous cosponsors, we can only hope that the provisions beyond RPD PRV reauthorization do not create further roadblocks to getting this program back on the books as soon as possible.

With the RPD PRV program’s sunset roughly a year away, a failure to reauthorize—and soon—may force many companies to make the difficult choice of rushing to submit their NDA/BLA in the coming months or early 2026.  Rushed submissions could lead to a wave of applications that do not have the benefit of full clinical or CMC datasets or vetting with FDA (e.g., via multiple interactions post-Phase 3).  In turn, this could create a high-risk situation in which 2026 may be marked by more applications receiving Complete Response Letters, which is not an efficient use of industry or FDA resources.

In the long term, it would be a tragedy for patients who might not benefit from therapies that would otherwise have been developed if the appropriate incentive was in place. We will never know the cost of the uncertainty this has caused, including, at minimum, delays in getting such therapies to patients suffering from serious or life-threatening diseases who need them. FDA has been doing its part to encourage the continuation of the program, primarily by continuing to grant rare pediatric disease designations past the December 2024 deadline. Now it is Congress’s turn to act, and quickly; the clock is ticking.

Late last week, FDA launched its real-time adverse event reporting dashboard for cosmetic products, the FDA Adverse Event Reporting System (FAERS) Public Dashboard for Cosmetic Products. This marks another step in Commissioner Makary’s “radical transparency” initiative. FDA promotes the digital site as an “interactive tool designed to facilitate the public’s ability to query real-time adverse event data on cosmetic products,” as the dashboard allows anyone to search, filter, and download adverse event data for cosmetics and beauty merchandise. Reports update daily rather than quarterly, giving the public immediate access to safety information that was previously buried in government databases.

Aside from the timeliness of the updates, this is a shift from the old world of cosmetic safety reporting. Previously, adverse event data lived in the CFSAN Adverse Event Reporting System (CAERS), was updated quarterly, and was accessible mainly through Freedom of Information Act (FOIA) requests or specialized industry databases. Now, a quick search can reveal a product name and every reported reaction in real-time. The dashboard consolidates both mandatory serious adverse event reports under 21 U.S.C. § 364a and voluntary reports from consumers, healthcare professionals, and salon workers.

The dashboard also reveals the scope of industry compliance after the passage of the Modernization of Cosmetics Regulation Act of 2022 (MoCRA), with nearly 46,000 adverse event reports submitted since the law’s mandatory reporting took effect in December 2023. There has been some hand-wringing about whether MoCRA enforcement might weaken under potential budget cuts and staffing reductions at FDA, but this activity suggests that at least the reporting requirements remain a priority for both industry and the agency.

The new system creates both challenges and opportunities for cosmetic companies of all sizes, though. The good news here is that the FDA clearly states these reports aren’t verified, and they don’t indicate the agency has concluded a product caused any adverse event. There’s a disclaimer users have to affirmatively click through that reads that submission of an adverse event report “does not constitute an admission that the facility, importer, distributor, packer, manufacturer or product caused or contributed to the event.” The dashboard also includes appropriate disclaimers about data limitations and the difference between correlation and causation.

However, competitors can now monitor products’ safety profiles as easily as checking stock prices, while consumers may make purchasing decisions based on what they read in the dashboard, including what may be raw, unverified reports. And the public nature of this unvetted data creates real litigation risks for companies, as trial attorneys may use raw adverse event reports in product liability cases without regard for the FDA’s disclaimers about causation.

Companies still need robust systems to collect, investigate, and classify adverse events within the required 15-day reporting window. Determining whether a consumer complaint rises to the level of a serious adverse event requiring FDA notification is often a complex judgment call that requires legal and regulatory expertise. Most companies have already set up monitoring systems to track both their own products and competitors’ safety profiles post-MoCRA, but here “radical transparency” means internal adverse event processes had better be rock-solid, to include training staff on proper classification protocols and ensuring robust documentation.

The dashboard doesn’t change what constitutes a serious adverse event under MoCRA, but it certainly raises the stakes for getting it right. We’ll report back on the effects the new system will have on the industry.

In a follow-up to FDA’s September 9 announcement that it would crackdown on deceptive direct-to-consumer (DTC) advertising, including issuing approximately 100 cease-and-desist letters, FDA has now (at the time of this blog drafting – September 16) posted 40 Untitled Letters and 35 Warning Letters, all dated September 9, for the public to read.

While it’s difficult to comprehensively get through all of these letters quickly, we thought it might be helpful to provide some initial thoughts on what we are seeing.

Untitled Letters

Several themes emerge from the Untitled Letters posted:

• FDA’s patience with lifestyle montages has worn thin. The Agency singles out ads with happy people and those engaging in social/exercise/family activities which FDA says creates an overall impression that the drug delivers more than treatment for its approved indication.
• FDA objects to the use of subscales and individual items from larger, validated scales to support improvement in quality-of-life measures.
• FDA is concerned with oversimplifying treatment time and effects and exaggerating the benefits of a different route of administration.
• Rapid scene changes, background music, and attention-grabbing visuals that play during the major statement interfere with consumer comprehension. (This is not new.)

What is striking is how short and sharp most of these letters are. With the exception of letters for one drug,  all other Untitled Letters lack specific citations to sections of the Federal Food, Drug, and Cosmetic Act (FDCA) or advertising regulations and simply declare that the ads are false or misleading, thus misbranding the drugs making their distribution in violation of the FDCA. These letters also lack section headers that group FDA’s concerns about presentations of safety or efficacy.  FDA appears to be formatting these letters in a manner similar to letters issued by DDMAC in the late 1990s, a time cited by the Commissioner as before the FDA’s “regulatory collapse over the past 25 years.”

It’s also worth noting how FDA chose to send these letters. In the past, the Office of Prescription Drug Promotion (OPDP) has typically grouped multiple violative promotional pieces for the same product into a single letter, laying out the shared violations in one place. This time, FDA appears to have split them apart – sending multiple letters on the same product for similar issues, which may artificially amplify the “enforcement blitz.” The forty letters actually represent promotional issues for 29 unique drugs.  And, they all appear to have been “signed” and released in a 15 minute period shortly after 5 pm on September 9.

Warning Letters

Many of the recently posted Warning Letters are focused on the booming market for compounded GLP-1 drugs. The Agency flagged website claims that these compounded products were “the same as” or “similar to” the approved brand-name drugs, which FDA alleges is false or misleading because compounded drugs are not reviewed by FDA for safety, effectiveness or quality before reaching patients.

Of the Warning Letters issued to pharmaceutical companies, the greatest concern these bloggers have relates to FDA’s assertions that third party programs that interview company representatives are “promotional communications” that should have been submitted on Form 2253 and require corrective communications.

Both Eli Lilly and Novo Nordisk received Warning Letters over statements made about their drugs during “An Oprah Special:  Shame, Blame, and the Weight Loss Revolution.”  The letters identify two doctors as representatives who “receive research funding from companies making GLP-1 drugs.”  The letters also cite the appearance of company representatives in the video.  The letters do not allege that Eli Lilly and/or Novo Nordisk “sponsored” the Oprah Special or further disseminated the videos.  According to FDA, Eli Lilly and Novo Nordisk failed to submit these “promotional communication(s)” to FDA on Form 2253.

Consistent with many Warning Letters regarding promotion, FDA has requested (required?) corrective communications:

Additionally, we request that your submission include a comprehensive plan of action to disseminate truthful, non-misleading, and complete corrective communication(s) about the concern(s) discussed in this letter. The corrective communication(s) should be disseminated to the audience(s) that received the promotional communication(s) identified in the opening paragraph of this letter. We recommend that corrective communication(s) include a description of the promotional communication(s) identified in this letter, which misbrand [DRUGS]; include a summary of the concern(s) described in this letter; and provide information to correct each of these concern(s). Corrective communication(s) should be free of promotional claims and presentations. To the extent possible, corrective communication(s) should be distributed using the same media, and generally for the same duration of time and with the same frequency as the promotional communication(s) identified in the opening paragraph of this letter. (Emphasis added.)

These bloggers have to wonder – should we expect to see an upcoming Oprah Special addressing FDA’s concerns?

A Word About Company Representatives

It appears that, consistent with its stated focus on “influencers,” FDA is looking more closely at what paid company representatives are saying about company drugs in a variety of platforms.  In several letters issued to Phathom Pharmaceuticals, FDA took issue with interviews featuring Kenan Thompson, a “spokesperson for Phathom Pharmaceuticals, Inc. for VOQUENZA (vonoprazan) tablets.”  During these interviews Mr. Thompson describes his condition and mentions he is taking Voquenza but does not provide any risk information.

Takeaways

Companies developing their next DTC TV ads would be wise to watch the rough cuts with an eye to how an ordinary viewer experiences the ad. Does the risk narration compete with a montage of mountain biking, family barbecues, and sightseeing trips? Is the text on screen clear and legible?  Is the major statement something viewers can realistically process?

In our review, it appears clear that even where an ad meets historical standards for compliant communication of the major statement, FDA may allege that the presentation is false or misleading due to competing visuals and scene changes.  These allegations regarding the major statement seem to be “easy” fixes for industry, however.

The more difficult issue to address is how to appropriately represent patients in ads.  In reviewing several of the TV ads that are the subject of Untitled Letters, these bloggers note the great care many of the ads take in how patients are presented.  Visual representations that patients may not necessarily be defined by the disease they have should not be considered an overstatement of drug efficacy.  This does a disservice to both patients and industry.

FDA’s recent release of 89 Complete Response Letters (“CRLs”) for pending or withdrawn applications (which we blogged about here), and its promise to continue to do so in “real-time” going forward (here), has marked a significant change in FDA policy.  Before that, the agency generally took the view that such CRLs were not disclosable under the Freedom of Information Act (“FOIA”) and FDA’s regulations.  Now, FDA is releasing these letters, redacted for what it has asserted is confidential commercial information (“CCI”), trade secrets, and personal private information.  What FDA treats as confidential/non-disclosable information is generally covered in 21 C.F.R. § 20.61, with an array of statutes applying as well.

But another regulation looms larger here: 21 C.F.R. § 314.430, going back to 1985, which provides that FDA will not disclose even “the existence of” an NDA or ANDA before an approval letter or tentative approval letter is sent to the applicant unless the existence of the application “has been previously publicly disclosed or acknowledged.” And where it has not been, “no data or information” in the application can be disclosed to the public. Id. § 314.430(c).  Even when such a pending application’s existence has been disclosed or acknowledged, no data or information in the application can be disclosed before the agency sends an approval letter, with exceptions for the Commissioner, in his or her discretion, to “disclose a summary of selected portions of the safety and effectiveness data that are appropriate for public consideration of a specific pending issue; for example, for consideration of an open session of an FDA advisory committee.”  Id. § 314.430(d)(1). And only after FDA sends an approval letter to the applicant will certain data and information be disclosed.  Id. § 314.430(e), (f).  21 C.F.R. § 601.51 provides essentially the same disclosure limitations for BLAs.

FDA has relied on this approved/unapproved distinction to disclose redacted CRLs after it has approved an application.  This includes releasing them as part of the action packages available on FDA’s Drugs@FDA website, and indeed, FDA has a statutory obligation to disclose the action packages for certain approved original marketing applications.  FDA’s disparate treatment of approved and unapproved applications is why FDA’s July 2025 announcement of its release of CRLs for approved applications didn’t make huge waves.  No more.

Some will certainly applaud the increased transparency in this policy change, which will provide a window on FDA’s thinking when reviewing applications, and possibly help applicants read the tea leaves to design their development programs to have a better, faster shot at FDA approval.  Indeed, there was much discussion of ideas like this back in 2010, when FDA created a Transparency Task Force that drafted proposed reforms on disclosure of things like CRLs and invited public comment.  See FDA Transparency Initiative: Draft Proposals for Public Comment Regarding Disclosure Policies of the U.S. FDA (May 2010).  But other stakeholders are likely to be far less enthusiastic, particularly since FDA announced this change and posted the letters without a Federal Register Notice, creating a docket to solicit public comment on this new initiative, or the like.

In addition, the publication of this recent batch of CRLs (and the promise to post additional CRLs in “real-time” going forward) introduces risks that drug developers cannot ignore.  While manufacturing deficiencies are routinely redacted as CCI in both the pre-approval and post-approval setting, clinical and statistical deficiencies are largely unredacted in these CRLs despite the fact that, in the pre-approval context, many sponsors may regard this information as equally sensitive.  Sponsors invest significant resources into designing pivotal trials, selecting endpoints and developing statistical methodologies — decisions that reflect years of strategy and regulatory engagement.  In a competitive space, details of a pivotal trial’s primary endpoint or the statistical methods applied could have real commercial value.  A publicized CRL might disclose such details for the first time, effectively serving as an announcement of key aspects of a development program. Disclosure of FDA’s clinical or statistical critiques can provide competitors with a roadmap to avoid similar pitfalls, accelerate their own development programs, or strategically differentiate their trials.  Moreover, unlike the information that might be presented at an Advisory Committee which generally reflects the perspectives of both FDA and the applicant, a CRL is one-sided and likely will not present the applicant’s perspective or interpretation.

There is also the prospect that FDA’s own behavior might shift in response to this policy. If CRL signatories know the identified deficiencies will immediately become part of the public record, will they alter the tone, phrasing, or even substance of CRLs?  Sponsors have a vested interest in ensuring that regulatory communications remain candid, precise, and consistent, and we hope that the move toward greater transparency does not inadvertently lead to less informative feedback.

Interestingly, the agency redacted the names of the signatory for each of the 89 CRLs it recently posted, citing a (b)(4) exemption which, under FOIA, is an exemption that only applies to trade secrets and CCI.  Yet, these authors fail to see a plausible (b)(4) basis for this redaction since the identity of an FDA decision-maker is not proprietary to the applicant (maybe FDA meant to say (b)(6)?).  Historically, FDA has not ordinarily redacted out these names when it released CRLs post-approval, including in its July 2025 batch.

Like others following this shift in policy, we anticipate litigation may follow from those whose information is released or may about to be released as part of a CRL for a pending or withdrawn application, particularly where they consider it to contain their CCI/trade secret information that was not properly redacted.  And whether the agency complied with its own regulations, including 21 C.F.R. §§ 314.430 and 601.51, in doing so may well be a big part of any such litigation.  Opposing those applicants’ interests are likely to be an agency and other outsiders advocating for the salutary benefits of sunlight.  In that vein, it will be interesting to see if this new policy prompts an influx of FOIA requests and challenges from outside parties seeking more information based on what they’ve newly gleaned about the pending and withdrawn applications, whether those requests are for what lies behind the redactions in the CRL, or for other documents like the intra-agency reviews supporting the decision, which FDA also has not generally released before approval.  But see Vanda Pharms., Inc. v. FDA, No. 22-CV-938 (CRC), 2023 WL 2645714 (D.D.C. Mar. 27, 2023) (holding FDA had not justified withholding from an applicant review documents under the deliberative process privilege after a CRL had issued).

And on the less confrontational side, other fallout from this policy change could come in the form of applicants reshaping their shareholder disclosure practices, as applicants will need to take care to ensure their public filings and shareholder communications are consistent with what becomes part of the public record.  Furthermore, applicants will likely attempt to even more clearly designate what they consider to be their CCI and trade secrets, not only in their applications but in all communications with the agency going forward, and an agency now having a much broader and real-time audience to consider when drafting CRLs.

Whatever comes next, we have the feeling we are only at the beginning of the story.

The American Conference Institute’s (ACI’s) virtual 5th Annual Passport to Proficiency on the Essentials of Hatch-Waxman and BPCIA is scheduled to take place from October 14-30, 2025 (Eastern Standard Time).  The virtual training series is specifically designed for attorneys, regulatory affairs professionals, and industry executives working at the intersection of FDA law, IP strategy, and biopharmaceutical innovation to provide advanced training on the 1984 Hatch-Waxman and the 2010 Biologics Price Competition and Innovation Act (BPCIA).

ACI’s Passport to Proficiency on the Essentials of Hatch-Waxman and BPCIA is a three-week virtual intensive—part of ACI’s Proficiency Series—that provides a structured, expert-led examination of the regulatory, litigation, and exclusivity frameworks governing both small molecules and biologics.  With a focus on the FDA–PTO interplay, patent lifecycle management, and the litigation pathways that shape market entry, this program offers actionable insights to strengthen your practice or in-house strategy.

Key Modules Include:

Week 1 – Regulatory Foundation

• Interplay of the FDA and PTO
• Pre-Commercialization Concerns
• Link between the FDA Approval and the Patent Process
• The Orange Book

Week 2 – Hatch-Waxman and BPCIA Framework

• The Hatch-Waxman Landscape
• Paragraph IV Disputes and Litigation
• Biosimilars: BPCIA and aBLA Overview
• Participating in the Patent Dance
• The Purple Book

Week 3 – Bioequivalence, Exclusivity, Extensions, and Exceptions

• Bioequivalence & Interchangeability
• 180-Day Exclusivity
• Non-Patent/ Regulatory Exclusivity
• Exploring the Safe Harbor
• Examining Patent Extensions

Why Attend:

• Gain practical, case-driven insights from top litigators and regulatory counsel.
• Understand how FDA regulatory actions shape IP enforcement and market exclusivity.
• Build the legal and regulatory fluency necessary to advise on product development, litigation readiness, and lifecycle management.
• Learn in a flexible virtual format with live Q&A and on-demand access.

Hyman, Phelps & McNamara, P.C.’s Sara W. Koblitz and Andrew Wasson from Haug Partners will speak during a session, titled “The Orange Book: Listings, De- Listings and Other Matters of Interest.”

FDA Law Blog is a conference media partner. As such, we can offer our readers a special 10% discount.  The discount code is: D10-999-FDA26.  You can access the conference brochure and sign up for the event here.  We look forward to seeing you at the conference!

Foreign drug manufacturers are having a time of it these days. On top of the confusion and controversy caused by tariffs, layer FDA’s increasingly aggressive and renewed promises to dramatically expand its foreign drug inspection program. These moves are potentially a potent one-two punch of compliance headaches that could reshape the international drug manufacturing landscape. A coming court ruling on tariffs will be public, but the results of any promised foreign inspection buildup may take years to compile and fully understand. That isn’t stopping Commissioner Marty Makary from talking tough about changes he wants to see happen in this space.

At a recent conference, Makary reiterated his announcement from May that he plans to end what he calls a “double standard” between domestic surveillance inspections that are unannounced and those conducted overseas, which are often done with advance notice.  He remarked that he wanted to ensure that FDA stops “putting companies through the ringer in the United States and then letting companies overseas have a much lighter inspection load.”

FDA has long struggled with the logistical, diplomatic, and legal complexities that prevent robust surprise inspections at foreign establishments. Even before the current Administration vowed to take regulatory relief to promote the domestic production of drugs, FDA’s foreign inspection program was under scrutiny. The Government Accountability Office noted the inherent difficulties in two different 2024 reports. Foreign inspection work is rigorous, with investigators not only on the road constantly but also facing language barriers and security concerns. GAO found that these conditions contribute to high turnover rates, and that investigator workforce shortages have hampered effective oversight. Inspections in China were backlogged in part by that country withholding visas. And because inspections are conducted under the authority of  21 U.S.C. § 374, FDA staff have no legal authority to demand entry at foreign sites. While FDA has other means to ensure compliance, such as the threat of import alerts or other regulatory warnings, it still needs to coordinate with health authorities in-country to conduct these reviews.

FDA has been publicly grappling with these issues for years. Noting the GAO’s reports, the House Energy and Commerce Committee has conducted a lengthy investigation into FDA’s foreign inspection program, including several hearings. Former Commissioner Robert Califf weathered intense Congressional criticism while defending the agency’s foreign inspection program and calling for additional authority and resources, acknowledging that FDA needed to “pick up the rate of its foreign inspections.” Pilot programs in India and China have made some progress; as we noted in a previous post, CDER’s Office of Pharmaceutical Quality recently reported that foreign inspections were on the rise as of FY 2024.

But there are also the RIFs. Though Commissioner Makary has repeatedly tried to distance himself from the April 1 reductions in force at FDA, the elimination of staff has been reported to have had an impact on the foreign inspection program. The logistical and diplomatic issues that have traditionally haunted the program probably aren’t going to be made better by the loss of dozens of critical support staff, despite agency promises that inspectors themselves would be protected. FDA, perhaps acknowledging this, has reportedly re-hired staff to help.

Commissioner Makary’s renewed tough talk about expanded unannounced foreign inspections is a politically potent narrative that perhaps oversimplifies a complex reality rooted in significant logistical constraints, diplomatic protocols, and international law. Nonetheless, he promises that whatever hurdles FDA needs to overcome, this focus is not going away under the current Administration. For foreign drug makers, then, the message is clear: the era of relying on advance notice to prepare for an inspection is ending. The move towards more unannounced inspections, even if gradual, requires a corporate mindset that may need to evolve from “inspection readiness” to a culture of continuous compliance and, if needed, expert advocacy to the FDA once inspections are complete.

We’ll report back with updates.

Note:  This HPM Fact Sheet, like HHS’s recently issued Fact Sheet, is intended to bring some radical transparency to the discussion around the recently announced DTC Rx drug ad “crackdown.”  These bloggers thought it would be helpful to clarify some issues.

On September 9, 2025, President Trump, HHS, and FDA issued coordinated statements regarding a “crackdown” on DTC Rx drug ads.  HHS and FDA have repeatedly and inaccurately referred to a “loophole” established in 1997 that allows pharmaceutical companies to “withhold vital safety information in advertisements.”  This narrative is patently false and is designed to justify rulemaking and enforcement activity to effectively shut down pharmaceutical companies from communicating with consumers.

FDA is taking action to effectively ban DTC broadcast advertising by engaging in rule-making to purportedly close a “loophole” that doesn’t exist.  Adequate provision enables pharmaceutical companies to direct patients to where they can obtain a drug’s full prescribing information or the brief summary of the full prescribing information.  Neither the full prescribing information nor the brief summary are intended to meet FDA’s “fair balance” requirement pertaining to providing risk information to balance benefit information.  FDA’s suggested action is intended to ensure the length of a DTC broadcast ad is increased with non-essential information – not in an effort to improve the quality and comprehensibility of information provided to consumers – but to dissuade pharmaceutical companies from continuing to disseminate DTC broadcast ads. 

What the FDA is Doing

1. Scapegoating the 1997 Adequate Provision “Loophole” by ignoring “fair balance” requirements.
2. Issuing “cease and desist” letters, in Untitled Letter and Warning Letter formats, that appear to be based on AI surveillance and may be AI generated.
3. Pretending that thoughtful regulatory oversight previously did not encompass TV and social media promotional activities when FDA has routinely monitored TV and social media posts for violative behavior for years.
4. Ignoring final rulemaking, implemented in November 2024, that sought to improve the quality, content and delivery of the major statement of a drug’s risks in broadcast ads.

Detail on this Action

•  Adequate Provision “Loophole:”
  • The FDA is initiating a rulemaking process to purportedly eliminate a loophole that doesn’t exist.  Broadcast ads must include fair balance, which is accomplished by the “major statement.”  “Adequate Provision” allows an ad to be “accompanied” by the prescribing information or brief summary by instructing a viewer on how they can obtain that information.
  • FDA mischaracterizes adequate provision as a “loophole” and ignores that the legal standards for fair balance and risk disclosure are well‑established and already enforceable.
  • FDA’s existing framework already requires that broadcast ads include a major statement of key risks and provide adequate provision (e.g., a website) to access full prescribing information.
  • Fair balance requires ads to provide information about drug risks as compared to drug benefits. This means that the content and presentation of a drug’s most important risks must be reasonably similar to the content and presentation of its benefits.
    • In fact, most broadcast ads spend more time describing a drug’s risks than its benefits.
  • FDA references in media interviews about this initiative to videos and ads that contain “no risk information” are likely not those sponsored by pharmaceutical companies that are generally well aware of regulatory requirements.
  • The “adequate provision” policy does not limit “informed patient consent” (where does this term even come from?).

• While HHS frames these reforms as a consumer‑protection measure, they align with the Secretary of HHS’s long‑standing opposition to DTC drug advertising. The intent is not to improve the quality of drug ads but to create a de facto ban on DTC ads by making compliance prohibitively complex.

• Additional Enforcement Action:
  • A general industry letter was sent to all application holders alerting them of FDA’s increased vigilance over DTC ads.  This letter does not appear to have any legal consequence (unlike FTC notices of noncompliance which are required by their civil penalty authority).  This was likely a performative gesture.
  • The FDA has begun issuing Warning and Untitled Letters, referred to in its press release as “cease and desist” letters.
  • From what we have seen, these Warning and Untitled Letters are not signed by the Office of Prescription Drug Promotion.  Instead, both Untitled and Warning Letters that we have become aware of are signed by George Tidmarsh, Director of CDER.
  • From the “cease-and-desist” letters we’ve become aware of, not all deal with DTC broadcast ads or social media and not all deal with issues pertaining to risk information.  We suspect that many of these letters may have been AI generated based on AI surveillance and may include errors.
  • It is unclear whether any Warning Letters issued were reviewed by the Office of Chief Counsel.
  • FDA has stated it intends to increase scrutiny of DTC advertising and has threatened to “return to the 1990s paradigm of issuing hundreds of enforcement letters each year.”
  • FDA supposedly is closing “digital loopholes” to encompass all social media promotional activity, notwithstanding FDA and FTC monitoring of this space for decades.

FDA claims that the lack of appropriate patient safety information in DTC pharmaceutical ads has directly led to negative health and economic impacts.

• This administration fired the OPDP social scientists researching pharmaceutical advertising impacts on consumers, belying the Administration’s concerns about health and economic impacts.

THANK YOU FOR YOUR ATTENTION TO THIS MATTER

As an avid reader of OPDP Warning and Untitled Letters that routinely allege pharma companies have engaged in false or misleading Rx drug promotion, this blogger read with interest FDA’s press release on its crackdown on deceptive DTC drug advertising.  As I dug into the press release and the example industry letter, I couldn’t help but wonder, what happens when FDA’s own representations could be viewed as “false or misleading.”

As background, late in the day on September 9^th, President Trump signed a presidential memorandum addressing misleading direct to consumer prescription drug advertisements and instructing the Secretary of Health and Human services to take appropriate action “to ensure transparency and accuracy in direct-to-consumer prescription drug advertising including by increasing the amount of information regarding any risks associated with the use of any such prescription drug.”  Along with this presidential memorandum, FDA issued its own press release announcing a crackdown on deceptive drug advertising.  The press release states that “FDA is sending thousands of letters warning pharmaceutical companies to remove misleading ads and issuing approximately 100 cease-and-desist letters to companies with deceptive ads.”

In addition to the letters, FDA states that it is “initiating rulemaking to close the ‘adequate provision’ loophole created in 1997, which drug companies have used to conceal critical safety risks in broadcast and digital ads.”

To support these initiatives, the FDA press release and letter to industry cite to a 2024 review article published by Oxford University Press’s academic research platform – a platform based in the UK where DTC Rx drug promotion is prohibited.  FDA cites to the 2024 review article from the Journal of Pharmaceutical Health Services Research which “reveals that while 100% of pharmaceutical social media posts highlight drug benefits, only 33% mentioned potential harms.”  This statement is attributed to a study published in 2015 that looked at social media activity in 2013 and 2014.  In addition, FDA states that, ”88% of advertisements for top-selling drugs are posted by individuals and organizations that fail to adhere to FDA ‘fair balance’ guidelines.”  This statement cites to another study published in 2012 that evaluated YouTube “advertisements” posted during a 1 month time period in September 2009.  Geez, FDA.  This is far from the “scientifically appropriate and statistically sound” evidentiary standard expected of pharma.

Beyond this woefully outdated and likely inaccurate information is the seeming attempt to obfuscate the entities/individuals that may in reality be responsible for the “misleading direct-to-consumer pharmaceutical advertisements” referenced in the press release.  While FDA is sending letters to “all application holders,” it is not clear that the application holders are the ones responsible for what FDA views as objectionable content.

FDA’s press release also hearkens back to the good ole days, when “FDA used to send more than a hundred warning letters each year, and misleading ads were rare.”  Huh?  What was FDA sending the warning letters about then?  Does anyone else see the seeming contradiction in that statement?

This “crackdown” comes at a time when pharmaceutical companies have, arguably, been working to include the greatest amount and clearest delivery of safety information related to their drugs.  With the recently implemented “clear, conspicuous, and neutral rule” that went into effect in late 2024, modifying 21 C.F.R. §202.1(e)(1), FDA requires that a company present a  drug’s “major statement” (the “fair balance” of safety in a DTC broadcast ad) in a “clear, conspicuous, and neutral” manner, with consumer-friendly terminology and, if in television format, in both audio and text.  During the major statement, the ad must not include audio or visual elements likely to interfere with comprehension of the major statement.

The press release reference to FDA’s new rulemaking intended to close the “adequate provision loophole” is also interesting.  Given the Office of Prescription Drug Promotion’s efforts over the years to conduct research on meaningful ways to convey safety information to consumers, including proposals in Draft Guidance that would reduce the quantity of content but improve the quality of delivery of risk information in consumer print promotion, one has to wonder about the true intent behind this rulemaking.  Is it truly to deliver meaningful risk information about Rx drugs?  Or is this a back door attempt to ban DTC broadcast drug ads by making it virtually impossible for a pharmaceutical company to comply with these new requirements.

This latest attempt to villainize pharmaceutical companies is falling flat with this blogger.  If there was truly such concern over prescription drug ads, one has to wonder why OPDP was subject to such a significant Reduction in Force back in April?  We previously reported on  Senator Durbin’s questions about FDA’s “Operational Capacity” to oversee DTC Rx drug advertising given these workforce reductions.  Is FDA’s use of “AI and other tech-enabled tools to proactively surveil and review drug ads” really supposed to take the place of the FDA employees that worked for years, dedicated to helping ensure prescription drug promotional compliance?  Will the letter to application holders and rulemaking really bring about meaningful changes that will protect the public health or is this simply more PR about big bad pharma?  This blogger’s money is on the latter.

Drug Enforcement Administration (“DEA”) diversion investigators conduct random, unannounced cyclic inspections of “non-practitioner” registrants (manufacturers, distributors, importers, exporters and narcotic treatment programs) about every three years.  Investigators also randomly inspect hospitals, pharmacies and practitioners.  With civil monetary penalties for violations of recordkeeping and reporting requirements adjusted for inflation up to $19,246 per violation, periodic mock DEA-style and mirror inspections and audits are more important for registrants than ever.

Mock Inspections/Audits

Periodic random internal mock DEA-style inspections are among the best tools that a registrant can undertake to prepare for actual DEA inspections.  After I left DEA I conducted mock inspections for a registered distributor every six months.  After about two years when DEA investigators conducted an actual inspection of the distributor, they found no deficiencies.  Their DEA group supervisor had never seen a perfect cyclic inspection before, and she sent the investigators back twice to find deficiencies.  The investigators still found nothing.

To ensure similar compliance while teaching employees how to manage DEA inspections, registrants are well-served by conducting periodic random DEA-style inspections comprised of controlled substance accountability audits, and record, report and security reviews.  Third-parties or knowledgeable employees without day-to-day controlled substance responsibilities for the registrant should conduct the mock inspections.  The periodic internal accountability audits of five to eight highly diverted controlled substances disclose potential losses, deter internal theft and identify potential underlying record issues.  Most important, mock inspections help ensure compliance.  They also instill familiarity and build employee confidence for actual DEA inspections.  Preparation for a mock inspection should begin with a review of prior DEA and internal inspection results to ensure that past deficiencies have been remedied, and that they are not continuing.

Mirror Inspections/Audits

When investigators conduct a controlled substance accountability audit during an inspection, registrants typically will not know the results for a number of months.  Registrants should keep in mind that investigators do make mistakes in their accountability audits and even with the records, reports and security that they review.  Registrants should rely on their own audits and reviews, not those of the investigators.  Registrants must ensure during a DEA inspection that investigators receive all required records and reports, and that they fully understand them and the security system.  During a DEA inspection, registrants should photocopy or set aside in a separate file every record and report that the investigators review or use during their inspection and accountability audit.  Concurrent with the DEA inspection, or very shortly afterwards, registrants should conduct an exact mirror of DEA’s inspection and audit.  For the accountability audit, registrants use the same beginning and ending inventories/physical counts that the investigators use, and the same receiving and disposition records for the same time period.  The mirror audit will disclose any controlled substance discrepancies.  Together the mirror inspection and audit will identify DEA’s potential findings to the registrant before the investigators may be prepared to share them.  Conducting a concurrent mirror inspection and audit will enable the registrant to respond to DEA’s findings without having to painstakingly reconstruct the inspection and audit when investigators finally share their results months later.  This is especially important if the investigators allege violations; it allows registrants to timely correct deficiencies.

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Registrants should conduct mock DEA-style inspections and mirror inspections/audits because not only will doing so help registrants prepare and respond confidently to actual DEA inspections and audits, more importantly they ensure compliance with their obligations under the Controlled Substances Act and regulations.