DTC Guidance May Signal Enforcement Shift: Attorneys

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Three Hogan Lovells attorneys say the FDA finalization of a 2018 draft guidance with recommendations on how companies can best present quantitative efficacy and risk information in direct-to-consumer (DTC) promotional materials may signal that the CDER Office of Prescription Drug Promotion (OPDP) “may be preparing to return to enforcement against promotional materials that it deems false or misleading.” In an online post, the attorneys list several recommendations from the original draft along with several that were added as the draft was finalized.

The post notes that the final guidance was issued within weeks of a proposed rule on Medication Guides that would significantly change the prescription drug labeling regulation to require that Rx drug and biological product applicants create a new Patient Medical Information form that is not false or misleading.

“It is fair to ask whether FDA’s prescription drug promotion office will become more active,” the attorneys write. “OPDP may be completing its research into which claims may mislead consumers and into how health care providers interpret those claims, and now moving into a new phase where it will use that research to inform its regulatory positions.”

The attorneys say that in the past drug and biotechnology manufacturers struggled to translate approved instructions for healthcare providers into patient-friendly language for patient brochures, DTC advertising, and direct-to-patient communication. They say companies will want to closely assess guidance and OPDP statements as new rules are crafted that sponsors must follow.

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