Can E&C Lift the Off-Label Gag Order?

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  • 07/22/2014

Today the House Energy & Commerce Committee’s 21st Century Cures Initiative tackles the FDA and “communications.”

According to the committee’s own white paper:

Communication about how certain treatments are working in certain patients is happening through a multitude of media around the globe. These conversations between and among doctors, patients, researchers, and scientists in academia and industry should be facilitated. This includes the free flow of data, research, and results related to what a therapy or combination of therapies does or does not do well and in what types of patients. We need to harness the power of the Internet and social networks.

That’s a big topic – but perhaps the most important issue within that big tent is that of off-label communications.

Perhaps the first thing to note is that there is distinction between off-label communications and off-label marketing. And is a distinction with a difference. Off-label marketing means sharing information with the intent to impact sales. Off-label communications means sharing information to improve and advance the public health. One well-known moniker for off-label communications is “the free and fair dissemination of scientific data.”

Let’s start here: Facts do not cease to exist because they are ignored.

According to a 2011 notice in the Federal Register:

The Food and Drug Administration (FDA) is announcing the establishment of a docket to assist with our evaluation of our policies on communications and activities related to off-label uses of marketed products, as well as communications and activities related to use of products that are not yet legally marketed for any use, we would like to obtain comments and information related to scientific exchange.  FDA is interested in obtaining comments and information regarding scientific exchange about both unapproved new uses of products already legally marketed (“off-label” use) and use of products not yet legally marketed for any use. 

And the issue of “scientific exchange” comes front and center. According to the FR notice, To assist with our evaluation of our policies on communications and activities related to off-label uses of marketed products, as well as communications and activities related to use of products that are not yet legally marketed for any use, we would like to obtain comments and information related to scientific exchange.

The FR notice puts this request into perspective:

On July 5, 2011, a citizen petition was submitted by Ropes & Gray and Sidley Austin LLP on behalf of seven product manufacturers (Petitioners):  Allergan, Inc.; Eli Lilly and Co.; Johnson & Johnson; Novartis Pharmaceuticals Corp.; Novo Nordisk, Inc.; Pfizer, Inc.; and sanofi-aventis U.S. LLC under 21 CFR 10.30.  The citizen petition requested that FDA clarify its policies for drug products and devices governing certain communications and activities related to off-label uses of marketed products and use of products that are not yet legally marketed for any use.  Specifically, the petition requests clarification in the following areas:

1.  Manufacturer responses to unsolicited requests; 

2.  Scientific exchange; 

3.  Interactions with formulary committees, payers, and similar entities; and

4.  Dissemination of third-party clinical practice guidelines.

For some time, FDA has been considering these issues and is currently evaluating our policies on sponsor or investigator communications and activities related to off-label uses of marketed products and use of products that are not yet legally marketed for any use.  We have been considering what actions to take in the areas specified by the petitioners with respect to manufacturer responses to unsolicited requests; interactions with formulary committees, payors, and similar entities; and the dissemination of third-party clinical practice guidelines.

Specifically, the FDA asks:

• How should FDA define scientific exchange?  

• What types of activities fall under scientific exchange?

• What types of activities do not fall under scientific exchange?

• Are there particular types and quality of data that may indicate that an activity is, or is not, scientific exchange?

• In what types of forums does scientific exchange typically occur?  Should the use of certain forums be given particular significance in determining whether an activity is scientific exchange or an activity that promotes the drug or device?  If so, which forums?

• What are the distinctions between scientific exchange and promotion?  What are the boundaries between scientific exchange and promotion?

  Generally, who are the speakers involved in scientific exchange, and who is the audience for their communications?

• Should the identity of the participants (either speakers or audience) be given particular significance in determining whether an activity is scientific exchange or an activity that promotes the drug or device?  If so, which participants would be indicative of scientific exchange and which would be indicative of promotion?

• How do companies generally separate scientific roles and promotional roles within their corporate structures?

• How should the Agency treat scientific exchange concerning off-label uses of already approved drugs and new uses of legally marketed devices? Please address whether there should be any distinctions between communications regarding uses under FDA-regulated investigation (to support potential approval) and communications regarding uses that are not under express FDA-regulated investigation.

• How should the Agency treat scientific exchange concerning use of products that are not yet legally marketed (that is, products that cannot be legally distributed for any use outside of an FDA- or institutional review board (IRB)-approved clinical trial)?

• Should investigational new drugs and investigational devices be treated the same with respect to scientific exchange? Why or why not? 

• Under 21 CFR 812.7(b), an investigational device is considered to be “commercialized” if the price charged for it is more than is necessary to recover the costs of manufacture, research, development, and handling.  Similarly, FDA considers charging a price for an investigational drug that exceeds that permitted under its regulations (generally limited to cost recovery) to constitute “commercialization” of the drug (see 74 FR 40872 at 40890, August 13, 2009; 52 FR 19466 at 19467).  What other actions indicate the commercialization of drug and/or device products?  If there are differences in the steps taken to commercialize drug products and the steps taken to commercialize device products, either before or after approval, please explain these differences.

As PhRMA wrote in a June 2014 statement:

To get the best possible health outcome for patients, FDA should revise its regulations to allow companies to share truthful, scientifically accurate, and data-driven information with healthcare professionals to inform treatment decisions.  Some examples of this kind of information include:

Observational data and “real world evidence” – Information on the safety and effectiveness of medicines taken from medical records based on actual use of approved medicines.

Sub-population data – Information on the safety and effectiveness of medicines in sub-populations including gender and race.  Such information can help healthcare professionals tailor their treatment to meet the needs of individual patients.

 Observational and comparative data – Information from the use of a medicine outside of randomized clinical trials, especially comparisons between two or more therapies.

 Pharmacoeconomic information – Healthcare economic data and information on the economic value of medicines can improve the efficiency of patient care.

 Information on medically accepted alternative uses of medicines – Information on new uses of approved medicines that are listed in major compendia and/or routinely reimbursed by the federal government and major payers.  As the National Cancer Institute states, “Often, usual care for a specific type or stage of cancer includes the off-label use of one or more drugs.”[1] Healthcare professionals help patients by applying new uses of approved drugs in “every specialty of medicine.”[2]  When patients are being prescribed medicines off-label, they deserve to know that their healthcare professionals have the latest information on these uses.

[1] See National Cancer Institute, Off-Label Drug Use in Cancer Treatment, available at

[2] Christopher M. Wittich, et; al., Ten Common Questions (and Their Answers) About Off-label Drug Use, Mayo Clinic Proceedings, available at

And it’s not just PhRMA – patient groups are keen to weigh in. Some examples:


At the same time, the government severely restricts what drug companies can say about new research and about off-label uses, thus cutting off information from the most knowledgeable sources. The Congress should seek new policies that permit drug companies to share appropriate information without fear of enforcement action.

Ovarian Cancer National Alliance

In ovarian cancer, as in many oncology settings, patients receive “off-label” therapies, which are legal and often part of practice guidelines. Access to these therapies is critical to providing patients with the best possible care...

The Alliance is deeply concerned that these revisions will chill off-label use of drugs and the dissemination of scientific information about non-approved uses. We strongly urge FDA to reconsider these changes and remove any language that may curb patient access to medically-accepted and life-saving medications.

And from BIO:

Current law deals with the important question of providing payers and others with meaningful information regarding the pharmacoeconomic benefits of medicines. However, implementation of Section 114 of the Food and Drug Administration Modernization Act of 1997 (FDAMA) has undermined innovators’ ability to meet requests for such information. The committee could evaluate how this important provision could be implemented in a less restrictive way to allow manufacturers to discuss more fully the value to the healthcare system of their innovations.

More broadly, provision of other truthful and non-misleading information to providers, payers, and patients also should not be impeded by unnecessary and cumbersome regulatory restrictions or requirements. Such approaches hinder users of medicines from accessing information that can help them use the medicines most effectively.

A lot of questions and, it seems, a lot of potential regulatory mission creep. All the more reason for both Congressional input .. and oversight.

Center for Medicine in the Public Interest is a nonprofit, non-partisan organization promoting innovative solutions that advance medical progress, reduce health disparities, extend life and make health care more affordable, preventive and patient-centered. CMPI also provides the public, policymakers and the media a reliable source of independent scientific analysis on issues ranging from personalized medicine, food and drug safety, health care reform and comparative effectiveness.

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