Court Questions Criminalizing Off-Label Promotion

The Massachusetts federal court allowed misdemeanor convictions to stand in an off-label promotion case but said “it seems clear that the statutory and regulatory scheme needs to be re-thought.” Attorney Stephen McConnell (Reed Smith) writes online in a Drug and Device Law Blog post that the judge pointed out there is no statute that specifically prohibits off-label marketing and yet the government continues to prosecute the conduct by patching together the misbranding and adulteration regulations.

“In short, this long opinion (United States v. Facteau) produces sad results for the defendants,” McConnell concludes. “The only consolation — and it is cold consolation for the defendants — is that this case is far from a ringing endorsement of the government’s aggressive prosecution.”

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