Attorneys Look Back, Ahead at FDA
A SheppardMullin report on “2023 Top-of-Mind Issues for Life Sciences Companies” looks at several FDA issues as well as other federal agencies. In 2022, the report says, the CDER Office of Prescription Drug Promotion (OPDP) continued its downward trend in enforcement, issuing just one Warning Letter and three untitled letters. All three of the untitled letters addressed false or misleading benefit and risk presentations. The Warning Letter was related to an unapproved drug product being promoted for Covid-19 treatment.
Looking ahead to 2023, the report says, it is clear that the OPDP is focused on the most repeated and blatant violations that present the biggest and most serious risks to the public health.
The SheppardMullin attorneys write that in 2022 FDA retreated from a flexible approach to regulating digital health in two key areas — the pre-certification program for software as a medical device and the guidance on clinical decision support. “In both cases,” they write, “FDA’s proposed flexible approach was tampered down — in the first case by a lack of authority to implement a more flexible model for premarket clearance of software changes and, in the second, by a desire to provide clarity to industry on how FDA plans to enforce requirements for clinical decision support software.”
The report projects that FDA will “continue to strike a balance between permitting innovations in clinical decision support among other digital products, to flourish and asserting its enforcement authority.”