By Ricardo Carvajal –

In an unusual step, FDA and FTC have issued a joint warning letter to the internet marketer of a dietary supplement promoted as helpful in preventing swine flu, seasonal flu, and colds.  According to the letter, the product “has not been approved, cleared, or otherwise authorized by FDA for use in the diagnosis, mitigation, prevention, treatment, or cure of the H1N1 Flu Virus,” and is both adulterated and misbranded.  In addition to threatening seizure and injunction, the letter threatens a referral for criminal prosecution if there is a failure to take corrective action.  Following a determination by the Secretary of Health and Human services that swine flu poses a public health emergency that “has the significant potential to affect national security,” FDA provided Emergency Use Authorization for certain unapproved or uncleared swine flu related products – but not for the product at issue. 

The letter further states that the FTC Act requires claims that a product prevents H1N1 infection to be supported by “well-controlled human clinical studies,” and prohibits health claims that are not supported by “rigorous scientific evidence.”  The letter notes that violations can result in an injunction or Administrative Order that can require restitution for consumers.
 
The 48-hour time frame afforded for a response to a joint agency action is a standard part of recent warning letters to companies selling illegal products for prevention of swine flu, and shows that there is a high level of concern surrounding the marketing of these products at both FDA and FTC (also see FDA's recent press release regarding illegal H1N1 drugs marketed on the internet here).  Marketers of products high on the agencies’ priority lists had better take note.

By John R. Fleder –

Numerous states have filed lawsuits across the country alleging that pharmaceutical companies have defrauded the Medicaid system by “publishing” inflated prices, namely “AWP” and “WAC” prices, that do not accurately reflect the prices at which those companies actually sell their products.  The cases generally allege that the states have over-reimbursed pharmacists and others because those states relied on “false” AWP and WAC prices for Medicaid reimbursement purposes.  The defendants have presented numerous arguments to defend these cases. (Hyman, Phelps & McNamara, P.C. is actively involved in that defense.)

On October 16, 2009, the Supreme Court of Alabama dealt a fatal blow to the cases that the State of Alabama commenced against AstraZeneca, GSK, and Novartis. It ruled that the lower court had erred in denying the defendants’ post-trial motions seeking a verdict in their favor.  The appellate court ruled that judgment should have been rendered in favor of the defendants, thus apparently ending the cases in that state against these defendants.  The Court ruled that the State failed to produce evidence that it reasonably relied on the alleged misrepresentations by the defendants with regard to their prices.  There was also a concurring opinion and a dissenting opinion.

Beginning on October 20, Stoel Rives LLP will present a three-part webinar on “business and legal issues related to the development of environmentally sustainable food products.”  The titles and dates for the sessions are:

• Session 1: Where to Start? Developing and Financing Sustainable Food Products (Tuesday, October 20, 2009)

• Session 2: Making Good Marketing Claims: Product Labeling Pitfalls, Third-Party Certification, and "Green Washing" (Tuesday, November 3, 2009)

• Session 3: Sustainable Foods Increase Litigation Risks: Developing Strategies to Minimize Exposure (Tuesday, November 17, 2009)

Hyman, Phelps & McNamara, P.C.’s Ricardo Carvajal will discuss FDA, USDA, and FTC approaches to sustainability claims during Session 2.  You can register for the webinar free of charge here.

By Kurt R. Karst –      

On October 14, 2009, Sens. Jeanne Shaheen (D-NH) and David Vitter (R-LA) announced the introduction of S. 1778, the Access to Affordable Medicines Act.  The bill would amend the FDC Act’s ANDA provisions at § 505(j) to add a new subsection stating that:

If the proposed labeling of a drug that is the subject of an application under this subsection is different from the labeling of the listed drug at the time the Secretary evaluates the application under this subsection, the drug that is the subject of such application shall, notwithstanding any other provision of this Act, be eligible for approval and shall not be considered misbranded under section 502 if –  

(A) a revision to the labeling of the listed drug has been approved by the Secretary within 60 days of the expiration of the patent or exclusivity period that otherwise prohibited the approval of the drug under this subsection;

(B) the Secretary has not determined the applicable text of the labeling for the drug that is the subject the application under this subsection at the time of expiration of such patent or exclusivity period;

(C) the labeling revision described under subparagraph (A) does not include a change to the ‘Warnings’ section of the labeling;

(D) the Secretary does not deem that the continued presence in commerce of the labeling of the listed drug (as in effect before the revision described under subparagraph (A)) adversely impacts the safe use of the drug;

(E) the sponsor of the application under this subsection agrees to submit revised labeling of the drug that is the subject of such application not later than 60 days after the notification of any changes to such labeling required by the Secretary; and

(F) such application otherwise meets the applicable requirements for approval under this subsection.

The bill, dubbed the “Generic Loophole Bill,” is intended to “increase access to lower cost generic drugs by closing a loophole some brand name drug companies exploit that needlessly and unfairly delays the entry of safe, lower-cost generic drugs to the consumer market,” according to Sen. Shaheen.  Specifically, Sen. Shaheen commented that:

As the law currently stands, when brand name manufacturers make labeling changes, generic drug labeling must reflect this change prior to the drug being approved and introduced in the market. . . .  [L]ast minute [labeling] changes are often used by brand name pharmaceutical companies to purposefully delay the introduction of cost-saving generic drugs by weeks or months. . . . .  My bill would stop these costly practices by providing a 60-day grace period for the generic drug company to submit the new labeling for approval and marketplace distribution, while preserving safeguards if the new labeling truly presents a safety issue.

It appears that a recent change to the labeling of CASODEX (bicalutamide) Tablets led the Senators to introduce the bill.  According to Sen. Shaheen, “consumer access to the generic version of this drug was delayed by more than 3 months due to a last minute pediatric labeling change . . . .” 

Meanwhile, in the House of Representatives, Rep. Alcee Hastings (D-FL) has introduced H.R. 3777, the Drug Price Competition Act of 2009.  This is a companion bill to S. 1315, which was introduced in the Senate earlier this year by Sen. Bill Nelson (D-FL).  As we previously reported, the bill would amend the definition of “first applicant” at FDC Act § 505(j)(5)(B)(iv)(II)(bb) with respect to 180-day exclusivity eligibility so that certain subsequent ANDA applicants could trigger exclusivity.

Upon introducing H.R. 3777, Rep. Hastings commented that the bill would “help achieve some of the goals that are essential to health care reform: ensuring fair market competition and increasing access to affordable drugs.”  In particular, Rep. Hastings commented that the bill:

allows generic companies that win patent challenges to share the 180-day exclusivity period with the generic companies that first submitted an application to the FDA.  However, no subsequent challenger would be eligible to share in the exclusivity reward once the generic drug has been launched.

If enacted, first-to-file generic manufactures would be less likely to accept a late entry date because this would mean that another generic manufacturer could win a patent challenge and share the 180-day exclusivity period.

The amendments proposed in the Drug Price Competition Act of 2009 appear to be consistent with a paper Apotex, Inc. issued earlier this year.  In that paper, Apotex recommends that Congress work for legislation “that gives shared (if not sole) exclusivity to a generic challenger who, although not first to file a paragraph iv certification, is first to succeed in addressing the listed patents.”

The Access to Affordable Medicines Act and Drug Price Competition Act are just two pieces of legislation Congress is considering with the backdrop of health care reform that could affect the generic drug industry.  On October 15th, the Senate Judiciary Committee held an Executive Business Session to discuss, among other things, a substitute amendment to S. 369, the Preserve Access to Affordable Generics Act, concerning so-called “reverse payment” settlements.  The amendment passed by a 12-7 vote with minor revisions.  (Another amendment proposed by Sen. Tom Coburn (R-OK) that would have changed the evidentiary standard in the Kohl substitute amendment when considering settlements was withdrawn).  Federal Trade Commission Chairman Jon Leibowitz commended the Judiciary Committee on its passage of the bill.  Also, as we previously reported, Sen. John Cornyn (R-TX) is pushing for legislation that would preempt tort suits against generic drug makers.

By Douglas B. Farquhar –

In the second day of the Enforcement and Litigation Conference sponsored by the Food and Drug Law Institute (“FDLI”), speakers from FDA and private industry discussed the trends in international trade in FDA-regulated products, and debated when companies  are required to disclose potential financial conflicts of interest.

David Elder, Director of FDA’s Office of Regional Operations, described how FDA has ramped up its efforts to inspect imported drugs, foods, and medical devices, and how FDA is increasing its overseas inspections of facilities regulated by FDA.  The PREDICT system (he was at pains to remember what the acronym stands for) has been inaugurated in one District of FDA, he said, and will be rolled out shortly to all 20 districts.  He said that the system, which addresses FDA-regulated products offered for import, enables inspectors to determine which import entries should be reviewed further by looking at the company and country of origin, type of product, and compliance history of recipient, among other criteria.  He said that he expects the system to enable FDA to automatically release for importation (rather than requiring that the product to be held, returned to the country of origin, or inspected) much more than the 20 percent of imported FDA-regulated products that are already automatically released.  He also said that he anticipates that FDA inspections overseas will increasingly be conducted in conjunction with regulatory authorities in those countries.

Katie McDermott, a partner at the law firm Morgan, Lewis & Bockius in Washington, D.C., referred to recent Corporate Integrity Agreements entered into by medical device or drug companies, and noted that the CIAs are beginning to require reporting to the government any in-kind contributions to physicians or their offices.  She noted that, for example, if representatives of a company provide training on the use of a drug or device to a physician or other medical personnel, the company may be required to report that type of activity.  Corporate Integrity Agreements, which are generally required when a mainstream drug or medical device company enters into a settlement with the federal government because of allegations of kickback or off-label promotion violations, have been executed and are in effect for dozens of companies.

Bradley Thompson, an attorney with Epstein, Becker & Green in Washington, D.C., argued that FDA needs to demonstrate increased transparency.  He noted that his firm has determined that FDA’s Center for Drug Evaluation and Research had promulgated 64 draft Guidances more than five years ago that have not been finalized or withdrawn.  He also stated that his clients are increasingly frustrated by filing comments on draft or proposed rules or guidances, and the comments are not addressed when the final rules or guidances are addressed.

In an additional update about the Conference, we should also report that Dan Miller of the Delaware Medicaid Fraud Control Unit ("MFCU"), yesterday reported that MFCU units around the country now have access to a centralized databank that can aggregate data from different Medicaid programs around the country, and match up diagnosis codes for Medicaid beneficiaries with drugs dispensed.  This enables investigators to determine, on a national basis, the amount of Medicaid reimbursements for a drug used by patients in off-label indications that may have been induced by a company’s off-label marketing.  The database can also be used to show increased prescriptions by specific physicians that government agents believe have received kickbacks.  Dan also mentioned, in response to a question, that some MFCU units around the country receive a percentage of the recoveries (much like a contingency fee for attorneys) when they successfully achieve a settlement with a targeted company, although his unit does not.

Further information about the conference, including audiotapes, will be available from FDLI.

Doug Farquhar co-chairs the FDLI Enforcement and Litigation Conference.

By Douglas B. Farquhar –

At the FDA Enforcement and Litigation Conference sponsored by the Food and Drug Law Institute ("FDLI"), the Compliance Directors of three of FDA's Centers, representatives of other components of the Food and Drug Administration, and a Justice Department official today forecast where FDA will concentrate its enforcement efforts under the new FDA Commissioner, Dr. Margaret Hamburg.

Aside from discussing Commissioner Hamburg’s initiatives, announced in a speech before FDLI on August 6, 2009, the common threads announced by the Compliance Directors were that FDA inspections and compliance efforts will be risk-based, meaning that the agency will focus on inspecting firms and products that have histories of noncompliance and where problems with the products could cause serious health consequences for consumers.  The Compliance Directors also emphasized the use of concentrated enforcement techniques to block imports of violative products from overseas, using, especially, Import Alerts, a technique which permits the agency, in cooperation with the United States Customs and Border Protection, to block products from entering the country without any prior involvement of a court or the United States Department of Justice.

More specifically,

• Gene Thirolf, the Director of the Office of Consumer Litigation (the branch of the Department of Justice responsible for prosecuting violations of the Federal Food, Drug, and Cosmetic Act), announced that False Claims Act cases, he expects, will begin to be filed and pursued against drug companies for manufacturing drugs that do not comply with relevant manufacturing specifications, and for distributing drugs when the companies have failed to report adverse events which have occurred with their drugs.  As Mr. Thirolf stated, False Claims Acts cases, which have resulted in recoveries for the government in numerous cases in the hundreds of millions of dollars, and in two recent cases, in billions of dollars, have traditionally been brought for drugs which were marketed using off-label claims or where there were allegations relating to kickbacks for doctors to encourage them to prescribe products, although some cases have already been brought under the False Claims Act for failure to report adverse events.  The discussion indicates that the Department of Justice will likely continue to broaden the scope of these types of claims.  The False Claims Act enables the federal government, in claims either brought with or without whistleblowers, to secure multiple damages and large penalties for claims submitted to the government for products on the basis of false statements. 

• Deborah Autor, the Director of Compliance at FDA’s Center for Drug Evaluation and Research, stated that her office is also looking at a firm's overall ability to meet FDA requirements as a possible indicator of whether the firm should be a compliance concern.  For example, she said that her office is noticing that poor quality of applications for FDA approval of drugs or faulty Adverse Event Report systems tend to show a likelihood of poor compliance in other areas, such as cGMP (current Good Manufacturing Practice). 

• Roberta Wagner, the Director of Compliance at FDA's Center for Food Safety and Applied Nutrition, indicated that her office is now sending requests to FDA District Offices to inspect specific food establishments, instead of leaving to the District Offices’ discretion which companies to inspect.  She said that her Center is basing its identification of companies on the degree of risk posed by the companies due to type of product, compliance history,  and health risk caused by violative products.

• Tom Abrams, the Director of DDMAC (FDA’s Division of Drug Marketing, Advertising and Communications), emphasized that there will be a series of hearings in early November on how FDA should regulate the use of social media (such as YouTube, Twitter, Facebook) in drug marketing.  This announcement follows on the heels of new Guidelines issued by the Federal Trade Commission just last week on a similar subject.

• Tim Ulatowski, the Director of Compliance for FDA’s Center for Devices and Radiological Health, pointed to a recently issued guidance on the registration of device companies.

• Dan McChesney, Director of Compliance at FDA’s Center for Veterinary Medicine, indicated the Center will focus on drug compounding establishments.

More information about the conference is available through FDLI.

Doug Farquhar co-chairs the FDLI Enforcement and Litigation Conference.

On October 27, 2009, the European Food Law Association (“EFLA”) will hold its first international EU-US Food Law Conference at the Brussels Sofitel, Place Jourdan 1 – 1000, Brussels.  EFLA is an international scientific association whose primary goal is to study and to promote Food Law.  The title of the conference is “Placing Products on the Market.”  A copy of the conference brochure is available here.  According to EFLA:

This first EFLA Conference, specifically devoted to International Relations in the Food Law Sector, will foster the exchange of ideas and experiences between European and American practitioners. This exchange will focus on the respective substantive laws and their practical effects as seen by practitioners over the years and at present.  The speakers will present general outlines of the topics, and the audience will be invited to actively participate in the debates and contribute their own views and insights.

Hyman, Phelps & McNamara, P.C.’s Diane B. McColl will chair a session at the conference comparing the main aspects of the substantive EU and US food laws, which will include a presentation from Wim Debeuckelaera of the European Commission Directorate General for Health and Consumer Affairs. 

By Ricardo Carvajal –

FDA has issued a draft guidance document that addresses FDCA section 201(rr)(4), which prohibits a tobacco product from being “marketed” in combination with any other FDA-regulated product.  The guidance provides the following as an example of prohibited conduct: "Nicotine that is derived from tobacco is added to water, juice, or soda (which are foods under the FDCA) and the water, juice, or soda is identified as containing a tobacco product."

This example suggests that, if a food is not “identified” as containing a tobacco product, then the prohibition in section 201(rr)(4) does not apply because the tobacco product has not been “marketed.”  This result is consistent with FDA’s interpretation of the term “marketed” as used in FDCA section 201(ff)(3)(B), otherwise known as the dietary supplement exclusionary clause.  In part, the exclusionary clause excludes from the definition of a dietary supplement an article that is approved as a new drug unless it is first “marketed” as a dietary supplement (or as another type of food).  In applying the exclusionary clause, FDA has taken the position that an article is not “marketed” as a supplement when it is merely present in a supplement that is offered for sale; rather, the article must have been sold or offered for sale as a supplement, or as a component of a supplement where the labeling or advertising for the supplement identified the presence of the article.

What FDA’s draft guidance leaves unsaid is that one can circumvent the prohibition in section 201(rr)(4) by not “identifying” a food as containing a tobacco product, but still run afoul of several adulteration and misbranding provisions of the FDCA.

By Kurt R. Karst –      

In what could shape up to be a very interesting (and important) precedent, the U.S. District Court for the Eastern District of Michigan (Southern Division) recently ruled and issued an Order and Injunction requiring Novo Nordisk, Inc. (“Novo”) to change an Orange Book-listed patent use code for a patent (U.S. Patent No. 6,677,358 (“the ’358 patent”)) on its drug product, PRANDIN (repaglinide) Tablets.  Novo has appealed the decision to the U.S. Court of Appeals for the Federal Circuit.  The district court’s decision follows an earlier decision in which the district court ruled that the counterclaim provisions at FDC Act §505(j)(5)(C)(ii)(I), as added by the Medicare Modernization Act (“MMA”), could be used to correct or delete a patent use code, and not only the patent number and expiration date.

For the uninitiated, patent use codes are listed in an Orange Book Addendum with a number and a descriptor.  Those patent use codes correspond with various patents with method-of-use claims listed in the Orange Book for a particular approved drug product.  Although FDA created patent use code descriptors prior to the Agency’s June 2003 finalization of its revised patent submission and listing requirements, with the new regulations, NDA sponsors are now required under 21 C.F.R. § 314.53(c)(2)(ii)(P)(3) to supply the descriptor language on Form FDA 3542. 

This case has quite a bit of back-story.  It stems from a patent infringement action Novo brought against Caraco Pharmaceutical Laboratories, Ltd. (“Caraco”) and Sun Pharmaceutical Laboratories, Ltd (“Sun”) with respect to the ’358 patent.  It is also related to two citizen petitions Novo and Caraco initially submitted to FDA in 2008 (FDA-2008-P-0343  FDA-2008-P-0441 – see our 505(q) Citizen Petition Tracker) concerning generic drug labeling carve-out and split patent certification (i.e., a Paragraph IV Certification and a “section viii” statement to the same patent) issues.  Novo submitted its petition to FDA after the Agency required the company to amend PRANDIN’s labeling to reflect a new Indications and Usage statement.  Previously, the PRANDIN Indications and Usage labeling statement discussed both monotherapy and combination therapy.  FDA required a unitary indication statement stating: “PRANDIN is indicated as an adjunct to diet and exercise to improve glycemic control in adults with type 2 diabetes mellitus.” 

In FDA’s December 2008 citizen petition decision, the Agency ruled that an ANDA for repaglinide that omits patent-protected information on metformin combination therapy would not be less safe or effective for the remaining, non-protected conditions of use, and that a split certification is appropriate as to the ’358 patent.  Novo subsequently filed a Petition for Reconsideration (“PRC”) and a Petition for Stay of Action (“PSA”) requesting FDA to reconsider its December 2008 petition decision and to stay the response and to refrain from taking any regulatory action consistent with the petition response (including granting any tentative or final approval for an ANDA for a generic version of PRANDIN that omits metformin combination information from the labeling).   

During FDA’s consideration of Novo’s PRC and PSA, Novo amended its Orange Book patent listing for the ’358 patent.  Previously, the ’358 patent was listed in the Orange Book with a “U-546” code, which is defined as “USE OF REPAGLINIDE IN COMBINATION WITH METFORMIN TO LOWER BLOOD GLUCOSE.”  The new use code, “U-968,” is defined as “A METHOD FOR IMPROVING GLYCEMIC CONTROL IN ADULTS WITH TYPE 2 DIABETES MELLITUS.” 

FDA, as a result of this use code change, denied Novo’s PRC and PSA as moot, stating that:

Because the use code for the ‘358 patent has changed since our issuance of the Citizen Petition Response and because our analysis and conclusions regarding labeling carveouts in that Citizen Petition Response were based on the previous use code, the factual predicate on which our previous response was based no longer applies.  As a result, your PRC and Petition for Stay are denied as moot. 

Although FDA denied the Novo PRC/PSA as moot, the district court deciding the patent infringement action has stated that “[a]s a result of the revised use code, the FDA will no longer permit Caraco to file a ‘section viii statement’ carving out the patented repaglinide-metformin combination therapy as a predicate for securing approval of Caraco’s ANDA to market its generic repaglinide for non-infringing uses.”  In other words, FDA has apparently required a “full” Paragraph IV Certification from Caraco as to the ‘358 patent as a result of the use code change.

Caraco challenged Novo’s use code change in a counterclaim submitted pursuant to FDC Act §505(j)(5)(C)(ii)(I) seeking an order from the court requiring Novo to amend the ‘358 Orange Book patent listing to revert back to the U-546 use code.  In granting Caraco’s Motion for Summary Judgment, the court found that Novo “improperly filed with the FDA for listing in the Orange Book the use code narrative for the method of use of claim 4 of the ’358 patent relating to Prandin,” and that Caraco and Sun “are entitled to a mandatory injunction requiring Novo to request the FDA to delist the U-968 listing for Prandin, and reinstate its former U-546 listing for Prandin.”  The court issued an Order and Injunction requiring Novo to submit to FDA a revised Form FDA 3542 reinstating the former U-546 listing for PRANDIN within twenty days from the date of the Order and Injunction.  Novo promptly appealed the decision to the Federal Circuit, where the company is seeking a stay of the district court’s Order and Injunction.

The district court’s decision is, to our knowledge, the first instance in which a court has interpreted the counterclaim provisions at FDC Act §505(j)(5)(C)(ii)(I) added by the MMA to order a company to correct or delete patent use code information.  That provision states:

If an owner of the patent or the holder of the approved application under [FDC Act § 505(b)] for the drug that is claimed by the patent or a use of which is claimed by the patent brings a patent infringement action against the applicant, the applicant may assert a counterclaim seeking an order requiring the holder to correct or delete the patent information submitted by the holder under [FDC Act § 505(b)] or (c) on the ground that the patent does not claim either – (aa) the drug for which the application was approved; or (bb) an approved method of using the drug. [(emphasis added)]

Under FDC Act §§ 505(b) and (c), an NDA holder must submit with its application and after NDA approval “the patent number and the expiration date of any patent which claims the drug for which the applicant submitted the application or which claims a method of using such drug and with respect to which a claim of patent infringement could reasonably be asserted if a person not licensed by the owner engaged in the manufacture use, or sale of the drug” (emphasis added).

As it did in the district court, Novo argues in its Emergency Motion to Stay the district court’s injunction that the statute authorizes only two specific counterclaims by an ANDA filer for correction of the patent information submitted by an NDA holder; namely, the correction of the patent number and the patent expiration date.  

By Ricardo Carvajal &  Susan J. Matthees –

When the Federal Trade Commission (FTC) sought comments in 2008 on proposed revisions to its Guides Concerning the Use of Endorsements and Testimonials in Advertising, we noted that endorsers (including expert endorsers and celebrities) and bloggers should beware.  FTC has now announced its adoption of the revised Guides.  That same day, senior FTC officials spoke about these changes at a National Advertising Division (NAD) of the Better Business Bureaus conference.  David Vladeck, Director of the FTC's Bureau of Consumer Protection and Mary Engle, Associate Director for Advertising Practices at the FTC, commented on the new guidelines.

The FTC last updated these Guidelines in 1980.  According to the FTC, under the revised Guidelines, advertisements that feature a consumer and convey his or her experience with a product or service as being "typical" when that is not the case, will be required to clearly disclose the results that consumers can generally expect.  In addition, the FTC has now made it clear that advertisers must clearly disclose "material connections" between the advertiser and the person endorsing a product or service.  This disclosure would apply to typical marketers of products, but also to "bloggers" who receive an inducement to review a product or service.  The Guidelines also address "celebrity endorsers" by stating that such endorsers can themselves be liable for false or unsubstantiated claims in advertisements.  In fact, the Guidelines state that when a celebrity makes statements about a product or service on talk shows or in social media, the celebrity is required to identify his or her connection to an advertiser.

Anyone with even a casual interest in the use of endorsements and of advertising through “new media” (e.g., blogs and other forms of consumer-generated content) should give the revised Guides a close read.  Below we paraphrase parts of some of the examples that FTC modified since FTC published the proposed Guides last November, and provide citations to those examples and the views of the FTC as to the legality of those practices:

• A consumer joins a network marketing program through which she receives free products for which she can choose to write reviews.  If she receives a free product and writes a positive review, that review is an endorsement.  Section 255.0, Example 8.
• A blogger who participates in a blog advertising service and agrees to promote an advertiser’s product is liable for any misleading or unsubstantiated representations the blogger makes (as is the advertiser), and is liable if the blogger fails to disclose that she has been paid for her services.  Section 255.1, Example 5.  
• A celebrity endorser touts a medical service provider to fans in real time via her social networking site (think Twitter).  She should disclose her relationship with that medical service provider because the nature of that medium is such that consumers may not realize that she is a paid endorser.  Section 255.5, Example 3.
• An influential blogger writes a positive review of a valuable product given to him by a manufacturer that has given him similar products in the past.  The blogger should disclose that he received the product for free; moreover, the manufacturer should advise him of the need for disclosure and should monitor his postings to ensure he complies.  Section 255.5, Example 7.

Also of interest:

• If an advertisement is likely to convey that a consumer’s experience with a product is representative of what consumers generally achieve, but consumers cannot generally expect to achieve that result, the advertisement should disclose the result that consumers can expect to achieve in whatever circumstances are depicted.  Section 255.2, Example 4.

A drug company provides substantial payments to an outside entity to design and conduct research on one of its products.  In its advertising, the company represents the research results as the findings of the outside entity. The company should disclose the fact that it funded the research.  Section 255.5, Example 1. 

The FTC received a number of comments urging it to steer away from new media in its revisions to the Guides.  However, as noted by FTC, whether or not the Guides address new media “does not affect the potential liability of those who use these media to market their products and services.”  That liability purportedly arises not under the Guides, but under section 5 of the Federal Trade Commission Act (FTC Act), which prohibits unfair or deceptive practices.

At the NAD conference, someone asked what an advertiser should do if one of its paid bloggers doesn't disclose the relationship.  Ms. Engle responded that the company should have a policy in place that all bloggers must disclose their relationship and if a blogger doesn't follow this policy, the company should "fire" the blogger.  Ms. Engle said that the FTC wouldn't sue "right away" for a violation of the failure of a blogger to disclose a connection (the audience laughed quite a bit at this comment).  Nevertheless, the revised Guides are already raising a ruckus in the blogosphere.  Finally, Ms. Engle commented that if employees of a company contribute to a work board that is public or post comments about the company on Facebook or Twitter, they need to disclose their relationship to the company.  

There are two enforcement points that people, including but not limited to bloggers and other users of new media, may want to keep in mind.  First, the Guides are guidance, not law.  In any given case, FTC must still show a violation of section 5 of the FTC Act.  Indeed, Ms. Engle reminded the NAD audience that the FTC guidance is merely that- a guidance, not rules, and the FTC still needs to show a violation of the law even if conduct appears to violate the Guides.

Second, the FTC can be expected to direct its limited enforcement resources toward big fish.  In fact, Ms. Engle also reminded the NAD audience that the FTC has limited resources and is only going to go after the "big fish" bloggers- a mom who gets free Pampers a few times and then writes a report on them is not going to surface on the FTC's radar.  That’s little comfort to big fish, but given that the evolution of new media has been propelled mostly by small fry, we expect that they may not be immune from FTC scrutiny.

At the NAD conference, Director David Vladeck spoke more generally about the FTC's priorities, and stated that the FTC is particularly concerned about food advertisements directed to children, internet advertising, testimonials, and green claims.  He indicated that the FTC is also trying to work more closely with FDA, EPA, and other relevant agencies in order to focus on these areas. There was also discussion about disclaimers.  Ms. Engle made it clear that a footnote comment on the results is not sufficient to act as an adequate disclaimer.  Instead, the FTC will consider the net impression of the entire ad.

By Susan J. Matthees –

FDA recently announced two new developments related to its review of proprietary name submissions.  First, FDA announced the availability of a new manual of policies and procedures (“MAPP”), MAPP 6720.2: Procedures for Handling Requests for Proprietary Name Review, that details the Center for Drug Evaluation and Research’s (“CDER’s”) procedures for handling request for proprietary name reviews.  Second, after the release of the new MAPP, FDA announced a pilot program to evaluate proposed proprietary name submissions.  

The new MAPP fulfills CDER’s PDUFA IV goal to develop a MAPP by the end of fiscal year 2009, and comes almost a year after FDA announced the availability of a guidance document on contents of a complete submission for evaluation of proprietary names and the Center for Biologics Evaluation and Research (“CBER’s”) MAPP on proprietary name review.    

The CDER MAPP applies to requests for proprietary name review that are submitted to INDs, NDAs, efficacy supplements, labeling supplements, and therapeutic biological products (“BLAs”) regulated by CDER.  The MAPP will also apply to requests for review for ANDAs, although ANDAs are not subject to PDUFA.  Accordingly, the MAPP provides the review procedures to be used by CDER’s, the Office of Surveillance and Epidemiology (“OSE”), including the Division of Medication Error Prevention and Analysis (DMEPA), the Office of New Drugs (“OND”), and the Division of Drug Marketing, Advertising, and Communication (“DDMAC”).  The MAPP will also be followed by the Office of Generic Drugs (“OGD”) for the review of ANDA proprietary name submissions. 

Pursuant to the MAPP, FDA must review a request for a proposed proprietary name during the IND phase within 180 days of receiving the request.  If the name is submitted with an NDA or as part of a supplemental application, FDA must complete a review within 90 days of receiving the request. 

Interestingly, the MAPP states that FDA has the authority to require a prior approval supplement for a name and that any addition or change to the proprietary name must be submitted as a prior approval supplement because of the potential for safety concerns.  This seems to be a higher standard for a prior approval supplement than what is set forth in existing regulations and we are interested in seeing whether the statement will be challenged.   

The pilot program to evaluate proposed proprietary name submissions is a voluntary 2-year program that FDA states “will enable participating pharmaceutical firms to evaluate proposed proprietary names and submit the data generated for those evaluations to FDA for review.”  FDA began accepting requests to register for the program, which is available for submissions to CDER and CBER, on October 1.

The pilot program fulfills FDA’s obligations under PDUFA IV to implement a pilot program that allows pharmaceutical firms to evaluate their own proposed proprietary names and submit data from those evaluations to FDA for review.   FDA published a concept paper on the pilot program last October. 

In order to participate in the program, interested parties must contact the appropriate FDA center (CDER or CBER) to register and provide the approximate month for the intended submission.  FDA states that it “will strive to include a cross-section of applicants that represent large, medium, and small companies.”   Accordingly, FDA will make a determination whether it has space for an applicant during the requested time period.  If there is space for the application, FDA will confirm the applicant’s registration via email.

At the end of the 2-year program, FDA will evaluate the program to determine whether applicants should perform their own proprietary name analysis.  FDA promises to hold a meeting to discuss the results of the program and publish a draft guidance describing the best test methods for proprietary name evaluation.

 By Alan M. Kirschenbaum –

Last Friday the Senate Finance Committee completed its mark-up of the “America’s Healthy Future Act of 2009.”  The Committee is awaiting scoring by the Congressional Budget Office before it votes on the bill this week.  Earlier we reported on the original Chairman’s Mark and prepared a summary of the provisions of direct interest to drug and device manufacturers.  Although the bill emerged from mark-up with no major amendments to the fees and rebates imposed on the drug and device industries, there were nevertheless a number of amendments of interest to drug and device companies.  We’ve now updated our summary to incorporate the more notable amendments added during the mark-up.  The revised summary can be found here. 

After the bill is voted out of the Finance Committee, it will be merged with the Senate Health, Education, Labor, and Pensions Committee bill before moving to the full Senate for a vote later this month.  We will continue to track these drug and device provisions as healthcare reform progresses. 

By Kurt R. Karst –      

Last week, the U.S. District Court for the District of New Hampshire ruled in a 67-page opinion that various state law tort claims brought against generic drug manufacturer Mutual Pharmaceutical Company, Inc. (“Mutual”) are not preempted by Title I of the Hatch-Waxman Amendments to the FDC Act.  The decision is the latest in a string of cases in which court have ruled that state law tort claims alleging the defective labeling of generic drugs are not preempted by the FDC Act (see e.g., Stacel v. Teva Pharms., USA, 620 F. Supp. 2d 899 (N.D. Ill. 2009), Kellogg v. Wyeth, 612 F. Supp. 2d 421 (D. Vt. 2008), Schrock v. Wyeth, Inc., 601 F. Supp. 2d 1262 (W.D. Okla. 2009), and Demahy v. Wyeth, Inc., 586 F. Supp. 2d 642 (E.D. La. 2008)).  The generic drug preemption question is also the subject of appeals in the 5th (Demahy v. Wyeth, Inc., No. 08-31204 (5th Cir. Dec. 16, 2008)), 6th (Morris v. Wyeth, Inc., No. 09-5509 (6th Cir. Apr. 27, 2009)), and 8th (Mensing v. Wyeth, Inc., No. 08-3850 (8th Cir. Dec. 10, 2008)) Circuit Courts, and is a topic of intense debate on Capitol Hill. 

In Bartlett v. Mutual Pharma. Co., plaintiffs Karen L. and Gregory S. Bartlett claim that Mrs. Bartlett suffered serious injuries after taking the non-steroidal anti-inflammatory drug Sulindac Tablets, which is marketed by Mutual under an Abbreviated New Drug Application ("ANDA") FDA approved in 1991 (ANDA No. 72-051).  (Mutual’s product is an AB-rated version of Merck’s CLINORIL (sulindac) Tablets, which FDA approved in September 1978 under NDA No. 17-911.)  Specifically, the Bartletts claim that after taking Mutual’s Sulindac Tablets in December 2004, Mrs. Bartlett was diagnosed with Stevens-Johnson syndrome progressing to toxic epidermal necrolysis (a serious and potentially fatal condition), and allege that Mutual “had an ongoing duty to conduct postmarketing safety surveillance for any reports of serious adverse events associated with Sulindac including any such report in the medical literature,” and that had Mutual done so, the company would have discovered information compelling the company “to warn physicians about the dangers” of its drug product with respect to Stevens-Johnson syndrome and toxic epidermal necrolysis.  The Bartletts assert several state law tort claims, including strict product liability (failure to warn and design defect), breach of implied warranty, breach of express warranty, fraud, negligence, and gross negligence.

Mutual filed a Motion for Judgment on the Pleadings arguing that Title I of the Hatch-Waxman Amendments, which, among other things, amended the FDC Act to create the generic drug approval procedures at § 505(j), and various FDA regulations implicitly preempt the Bartletts’ state law claims.  Specifically, the Bartletts argue that:

having obtained FDA approval for their generic version of Sulindac under the ANDA procedure envisioned by Hatch-Waxman, they could not change Sulindac’s design, or the warnings included in the drug’s labeling, without running afoul of federal law (impossibility pre-emption).  They further argue that, even if the FDA could approve such a change, it could come only after “substantial expense to obtain the scientific substantiation necessary to support [it],” frustrating Hatch-Waxman’s goal to “increase the availability of low-cost generic drugs” by opening the ANDA process to them (frustration-of-purpose pre-emption).

To support its position, Mutual points to the “same labeling” requirement in the FDC Act and in FDA’s regulations applicable to generic drug applicants seeking approval of a duplicate of a brand-name drug (arguing that the company could not have changed its  labeling to add or strengthen a warning absent a change by Merck), and FDA’s Changes Being Effected (“CBE”) regulations (which the company argues apply only to NDA-approved drug products).  In particular, Mutual points to a statement FDA included in a footnote in the preamble to the Agency’s proposed CBE regulations (and elsewhere) that “CBE changes are not available for generic drugs approved under an [ANDA].  To the contrary, a generic drug manufacturer is required to conform to the approved labeling for the listed drug.” 

In denying Mutual’s motion, the court, relying on the Supreme Court’s preemption decisions in Wyeth v. Levine and Medtronic, Inc. v. Lohr (and the often quoted statement from the Court that in preemption cases “in which Congress has legislated . . . in a field which the States have traditionally occupied,’ we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.)” ruled that neither the Hatch-Waxman Amendments nor FDA’s regulations explicitly or implicitly preempt the Bartletts’ state law claims.  According to the court:

To fit their claimed predicament into this framework, the defendants would need to show a federal law saying “You may not change your label” to conflict with the state law underlying the Bartletts’ failure-to-warn claims, i.e., “You must change your label.” So the defendants’ assertion that the FDCA does not say one way or the other whether they can change their label is insufficient. [(underline in original)]

It is also incorrect, because . . . the [FDA Modernization Act] allows, “[w]ith respect to a drug for which there is in effect an approved application under section 355 . . . , a change from the manufacturing process approved pursuant to such application.” 21 U.S.C. § 356a(a)(1).  Both NDAs and ANDAs, of course, are approved under section 355. . . . 

Because 21 U.S.C. § 356a expressly authorizes a manufacturer’s changes to an application approved under § 355 of the Act – whether under subsection (b), as in the case of an NDA, or under subsection (j), as in the case of an ANDA – the defendants are incorrect that nothing in the Act permits a manufacturer to change its label post-approval.

And with respect to FDA’s ANDA and CBE regulations, the court stated that:

The FDA’s footnote-bound position that “CBE changes are not available for generic drugs approved under an [ANDA] under 21 U.S.C. § 355(j)” is not persuasive . . . .  First, the footnote did not so much as acknowledge 21 C.F.R. § 314.97 [concerning supplements to approved ANDAs].  Second, while the footnote did cite § 314.150(b)(10), that rule, as already discussed at length, provides only that the FDA may attempt to withdraw its approval of an ANDA if “the labeling for the drug product that is the subject of the [ANDA] is no longer consistent with that for the listed drug”; it says nothing at all about CBE changes, and cannot be read to prevent them in light of the other provisions of the ANDA rules.  Third, while the footnote also cited certain of the agency’s comments in promulgating the ANDA regulations, those comments, as also already discussed at length, do not support excluding generic manufacturers from the CBE process.  Based on these deficiencies, this court joins with those others that have refused to adopt the view set forth in the FDA’s footnote.

As if to provide a perfect transition for us to report on what is happening on Capitol Hill, the district court concluded its opinion noting that it cannot grant Mutual’s motion finding preemption absent “a clear expression of intent” from Congress.  And in fact, Congress is working on providing that “clear expression of intent.” 

Sen. John Cornyn (R-TX) recently filed an amendment to both the Senate Finance Committee’s health reform bill and in the Judiciary Committee to Sen. Herb Kohl's (D-WI) “reverse payment” (S. 369) bill that would preempt tort suits against generic drug makers.  Specifically, Sen. Cornyn’s amendment would amend the law to state:

Notwithstanding any other provision of State or Federal law, a person who manufacturers a generic drug approved under an abbreviated new drug application shall not be liable because the label did not warn against an adverse reaction, unless the Food and Drug Administration required a change to the label to provide such warnings and the manufacturer failed to comply with such requirement, or the manufacturer failed to provide to the Food and Drug Administration health and safety information otherwise required to be provided under regulations issued by the Secretary for Health and Human Services regarding such drug.

By William T. Koustas –

FDA recently issued its most extensive guidance for industry regarding Risk Evaluation and Mitigation Strategies (“REMS”) since their enactment of the Food and Drug Administration Amendments Act of 2007 (“FDAAA”).  The “Draft Guidance for Industry: Format and Content of Proposed Risk Evaluation and Mitigation Strategies (REMS), REMS Assessments, and Proposed REMS Modifications” (“REMS Guidance” or “Guidance”) addresses issues that drug companies may struggle with as they develop REMS.  While some of the information found in the REMS Guidance is not new, it is one of the few times FDA has revealed its thinking on these issues to this extent to the public.  The REMS Guidance mainly addresses three issues: (1) the content of a proposed REMS submission; (2) REMS assessment and modification of proposed REMS; and (3) communicating with FDA about REMS.  The introduction and background sections of the guidance also contain useful information about REMS and their relationship to RiskMAPs.  Interestingly, the REMS Guidance also contains an example of a REMS for a fictitious drug product.  Though much of this information can be gleaned from already approved REMS, it is likely a useful tool for sponsors to examine as they struggle to develop a REMS of their own.

I.  Content of a Proposed REMS Submission to FDA

This section of the REMS Guidance essentially describes what FDA expects a REMS to contain in the “proposed REMS” and “REMS supporting document” sections of the REMS submission.  As described in this guidance, the “proposed REMS” section of this submission should contain information regarding the goals of the REMS as well as the elements the sponsor proposes to implement in order to achieve those goals.  FDA notes that goals should “target the achievement of particular health outcomes or knowledge related to known safety risks and should be stated in a way that aims to achieve maximum risk reduction.”  FDA, Draft Guidance for Industry: Format and Content of Proposed Risk Evaluation and Mitigation Strategies (REMS), REMS Assessments, and Proposed REMS Modifications (Sept. 2009) at 9.  This part of the Guidance also gives generic examples of how a sponsor may phrase a goal as well as objectives.  The “proposed REMS” should also contain one or more of the REMS elements many are familiar with – medication guides or patient package inserts, communication plans, elements to assure safe use, an implementation system and a timetable for submission of assessment – as required by FDA or FDAAA.  Id. at 10-15. 

The “REMS supporting document” section of this Guidance describes the information and format of such a document.  According to the REMS Guidance, the supporting document should include a background section explaining why the sponsor believes a REMS is necessary; a goals section describing the rationale for each goal stated in the “proposed REMS;” supporting information about the proposed elements so that it is clear to FDA how each element will contribute to the goals; and a REMS assessment plan which should permit the sponsor to evaluate how the REMS elements are, or are not, achieving the stated goals and whether these elements or goals should be modified.  Id. at 16-21.

II.  REMS Assessment and Proposed REMS Modification Submission to FDA

The REMS Guidance devotes an entire section to REMS assessments and modifications, which describes what FDA expects sponsors to include in the REMS assessments that must be submitted according to the timetable for submission of assessments included in the “proposed REMS.”  The assessment may propose modifications to approved REMS elements either at the sponsor’s initiative or when FDA determines that new safety information requires the modification of the REMS.  Id. at 22.  Any modifications to approved REMS must be submitted as a new prior-approval supplemental application and each modification should include a new “proposed REMS” as well as an updated “REMS supporting document” that describes the rational for the modifications.  Id.

III. Communicating with FDA Regarding REMS

The REMS Guidance also describes how a sponsor should communicate with FDA regarding REMS submissions.  A proposed REMS may be submitted in the original drug application, as a supplement to an existing application or as an amendment to an original or supplemental application.  Id. at 23.  While submission of a REMS assessment alone is not considered a supplemental application, a REMS assessment with a proposed modification to an approved REMS would be.  Id.  Additionally, a supplemental application for a new indication for a drug with an approved REMS should include a REMS assessment and proposed modifications if necessary.  FDA also identifies how the initial pages of a REMS submission should be formatted such that it is able to quickly identify it.  Id. at 24-26.  FDA notes that sponsors should contact  their regulatory project manager in the division assigned to the drug, while the a sponsor of an ANDA should contact the Director of the Division of Labeling and Program Support in the Office of Generic Drugs with questions.  Id. at 26. 

By Kurt R. Karst –      

We previously reported on a Senate floor amendment to the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act of 2010 (H.R. 2997) co-sponsored by Senators Sam Brownback (R-KS) and Sherrod Brown (D-OH) that would establish within FDA two new review groups to recommend solutions for the prevention, diagnosis, and treatment of rare diseases and neglected diseases of the developing world.  Earlier this week, after Senate and House conferees hammered out a compromise bill, a Conference Report was released that retains the Brown/Brownback amendment, albeit with some changes.

The amendment, which is reprinted below, and is now included as Section 740 of the bill, requires FDA to establish within the Agency “a review group which shall recommend to the Commissioner of Food and Drugs appropriate preclinical, trial design, and regulatory paradigms and optimal solutions for the prevention, diagnosis, and treatment of rare diseases,” and another group that is required to do the same with respect to neglected diseases of the developing world.  The previous version of the amendment stated that FDA may establish the groups.  Also, whereas the previous version of the amendment stated that each review group would be composed of 8 FDA employees, the conference version omits any reference to the number of FDA employees in each review group.  It is unclear whether any additional guidance will be given as to the composition of each review group.

SEC. 740. (a) The Commissioner of Food and Drugs shall establish within the Food and Drug Administration a review group which shall recommend to the Commissioner of Food and Drugs appropriate preclinical, trial design, and regulatory paradigms and optimal solutions for the prevention, diagnosis, and treatment of rare diseases: Provided, That the Commissioner of Food and Drugs shall appoint individuals employed by the Food and Drug Administration to serve on the review group: Provided further, That members of the review group shall have specific expertise relating to the development of articles for use in the prevention, diagnosis, or treatment of rare diseases, including specific expertise in developing or carrying out clinical trials.

(b) The Commissioner of Food and Drugs shall establish within the Food and Drug Administration a review group which shall recommend to the Commissioner of Food and Drugs appropriate preclinical, trial design, and regulatory paradigms and optimal solutions for the prevention, diagnosis, and treatment of neglected diseases of the developing world: Provided, That the Commissioner of Food and Drugs shall appoint individuals employed by the Food and Drug Administration to serve on the review group: Provided further, That members of the review group shall have specific expertise relating to the development of articles for use in the prevention, diagnosis, or treatment of neglected diseases of the developing world, including specific expertise in developing or carrying out clinical trials: Provided further, That for the purposes of this section the term ‘‘neglected disease of the developing world’’ means a tropical disease, as defined in section 524(a)(3) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360n(a)(3)).

(c) The Commissioner of Food and Drugs shall –

(1) submit, not later than 1 year after the date of the establishment of review groups under subsections (a) and (b), a report to Congress that describes both the findings and recommendations made by the review groups under subsections (a) and (b);

(2) issue, not later than 180 days after submission of the report to Congress under paragraph (1), guidance based on such recommendations for articles for use in the prevention, diagnosis, and treatment of rare diseases and for such uses in neglected
diseases of the developing world; and

(3) develop, not later than 180 days after submission of the report to Congress under paragraph (1), internal review standards based on such recommendations for articles for use in the prevention, diagnosis, and treatment of rare diseases and for such uses in neglected diseases of the developing world.