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Guidance for Industry:

Good Reprint Practices for the Distribution of Medical Journal Articles and Medical or Scientific Reference Publications on Unapproved New Uses of Approved Drugs and Approved or Cleared Medical Devices

DRAFT GUIDANCE

This guidance document is being distributed for comment purposes only

Comments and suggestions regarding this draft document should be submitted within 60 days of publication in the Federal Register of the notice announcing the availability of the draft guidance.  Submit comments to Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD  20852.  All comments should be identified with the docket number listed in the notice of availability that publishes in the Federal Register.

For single copies of this draft guidance, please contact:  Office of Policy, Food and Drug Administration, 5600 Fishers Lane, rm. 14-101, HF-11, Rockville, MD 20857, (301) 827-3360. 

For questions regarding this draft document, contact Jarilyn Dupont, Office of Policy, Food and Drug Administration, (301) 827-3360.

U.S. Department of Health and Human Services
Food and Drug Administration

February 2008

Contains Nonbinding Recommendations
Draft – Not for Implementation

Table of Contents

I. Introduction

II. Background

III. Purpose

IV. Agency Recommendations for Good Reprint Practices

A.        Types of Reprints/Articles/Reference Publications
B.        Manner in which to Disseminate Scientific and Medical Information

V. Summary

Contains Nonbinding Recommendations
Draft – Not for Implementation

Guidance for Industry: Good Reprint Practices for the Distribution of Medical Journal Articles and Medical or Scientific Reference Publications on Unapproved New Uses of Approved Drugs and Approved or Cleared Medical Devices

This draft guidance document represents the Food and Drug Administration’s current thinking on this topic. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. You may use an alternative approach if the approach satisfies the requirements of the applicable statutes and regulations. If you want to discuss an alternative approach, please contact the appropriate FDA staff.

I.   Introduction

This draft guidance is intended to describe the Food and Drug Administration’s (FDA or Agency) current thinking regarding “Good Reprint Practices” with regard to the distribution of medical journal articles and scientific or medical reference publications (referred to generally as medical and scientific information) that discuss unapproved new uses for approved drugs¹ or approved or cleared medical devices marketed in the United States to healthcare professionals and healthcare entities.

FDA’s guidance documents, including this draft guidance, do not establish legally enforceable rights or responsibilities.  Instead, guidances describe the Agency’s current thinking on a topic and should be viewed only as recommendations, unless specific regulatory or statutory requirements are cited.  The use of the word should in Agency guidances means that something is suggested or recommended, but not required.

II.    Background

Section 401 of the Food and Drug Administration Modernization Act (FDAMA (21 U.S.C. § 360aaa, § 551, Federal Food, Drug, and Cosmetic Act (FD&C Act))), described certain conditions under which a drug or medical device manufacturer² could choose to disseminate medical and scientific information discussing unapproved uses of approved drugs and cleared or approved medical devices to healthcare professionals and certain entities (including pharmacy benefits managers, health insurance issuers, group health plans, and Federal or State governmental agencies).  FDAMA section 401 provided that, if these conditions were met, dissemination of such journal articles or reference publications would not be considered as evidence of the manufacturer's intent that the product be used for an unapproved new use.  FDA implementing regulations were codified at 21 C.F.R. Part 99. 

In 2000, subsequent to a decision by the United States Court of Appeals for the District of Columbia Circuit, FDA published a Notice (65 Fed. Reg. 14286, March 16, 2000) clarifying the applicability of the FDAMA section 401 provision and the FDA implementing regulations.  In that Notice, FDA stated that the statute and implementing regulations constituted a “safe harbor” for a manufacturer that complies with them before and while disseminating journal articles and reference publications about “new uses” of approved or cleared products.  If a manufacturer complied with the FDAMA provision, the distribution of such journal articles or reference publications would not be used as evidence of an intent that the product distributed by the manufacturer be used for an unapproved use.  The Notice stated that if a manufacturer chose to disseminate materials but not proceed under FDAMA section 401, that failure would not constitute an independent violation of law. 

FDAMA section 401 ceased to be effective on September 30, 2006, and the implementing regulations are no longer applicable.  In light of the statute’s sunset, FDA is providing its current views on the dissemination of medical journal articles and medical or scientific reference publications on unapproved uses of approved drugs and approved or cleared medical devices to healthcare professionals and healthcare entities.

III.    Purpose

As explained in FDA’s March 16, 2000 Notice, the FD&C Act and FDA’s implementing regulations generally prohibit manufacturers of new drugs or medical devices from distributing products in interstate commerce for any intended use that FDA has not approved as safe and effective or cleared through a substantial equivalence determination.  (E.g., FD&C Act §§ 505(a), 502(o), 501(f)(1)(B), 301(a) and (d); 21 U.S.C. §§ 355, 352(o), 351(f)(1)(B), 331(a) and (d)).  An approved new drug that is marketed for an unapproved use becomes misbranded and an unapproved new drug with respect to that use.  Similarly, a medical device that is promoted for a use that has not been approved or cleared by FDA is adulterated and misbranded.

FDA does, however, recognize the important public policy reasons for allowing manufacturers to disseminate truthful and non-misleading medical journal articles and medical or scientific reference publications on unapproved uses of approved drugs and approved or cleared medical devices to healthcare professionals and healthcare entities.  Once a drug or medical device has been approved or cleared by FDA, generally healthcare professionals may lawfully use or prescribe that product for uses or treatment regimens that are not included in the product's approved labeling (or, in the case of a medical device cleared under the 510(k) process, in the product's statement of intended uses).  These off-label uses or treatment regimens may be important and may even constitute a medically recognized standard of care.  Accordingly, the public health may be advanced by healthcare professionals' receipt of medical journal articles and medical or scientific reference publications on unapproved or new uses of approved or cleared medical products that are truthful and not misleading. 

FDA’s legal authority to determine whether distribution of medical or scientific information constitutes promotion of an unapproved “new use,” or whether such activities cause a product to be misbranded or adulterated has not changed.  In recognition of the public health value to healthcare professionals of receiving truthful and non-misleading scientific and medical information, FDA is providing recommendations concerning “Good Reprint Practices” for the dissemination of medical journal articles and medical or scientific reference publications on unapproved uses of drugs and medical devices.³ 

IV.    Agency Recommendations for Good Reprint Practices

Scientific and medical information that concerns the safety or effectiveness of an approved drug or approved or cleared medical device for a new use that is not included in the product’s approved labeling or statement of intended uses (including unapproved or new uses of approved drugs and approved or cleared devices) is often published in journal articles or reference publications.  These publications are often distributed by manufacturers to healthcare professionals or healthcare entities.  When a manufacturer disseminates such medical and scientific information, FDA recommends that the following principles of “Good Reprint Practices” be followed.

A.    Types of Reprints/Articles/Reference Publications

A scientific or medical journal article that is distributed should:

• be published by an organization that has an editorial board that uses experts who have demonstrated expertise in the subject of the article under review by the organization and who are independent of the organization to review and objectively select, reject, or provide comments about proposed articles, and that has a publicly stated policy, to which the organization adheres, of full disclosure of any conflict of interest or biases for all authors, contributors, or editors associated with the journal or organization;
• be peer-reviewed and published in accordance with the peer-review procedures of the organization; and
• not be in the form of a special supplement or publication that has been funded in whole or in part by one or more of the manufacturers of the product that is the subject of the article.

A scientific or medical reference publication that is distributed should not be:

• primarily distributed by a drug or device manufacturer, but should be generally available in bookstores or other independent distribution channels where medical textbooks are sold;
• written, edited, excerpted, or published specifically for, or at the request of, a drug or device manufacturer; or
• edited or significantly influenced by a drug or device manufacturer or any individuals having a financial relationship with the manufacturer.   

The information contained in the above scientific or medical journal article or reference publications should address adequate and well-controlled clinical investigations that are considered scientifically sound by experts with scientific training and experience to evaluate the safety or effectiveness of the drug or device⁴. The information must not:

• be false or misleading, such as a journal article or reference text that is inconsistent with the weight of credible evidence derived from adequate and well-controlled clinical investigations (e.g., where a significant number of other studies contradict the article or reference text's conclusions), that has been withdrawn by the journal or disclaimed by the author, or that discusses a clinical investigation where FDA has previously informed the company that the clinical investigation is not adequate and well-controlled; or
• pose a significant risk to the public health.

The following publications are examples of publications that would not be considered consistent with the Good Reprint Practices outlined in this draft guidance:

• letters to the editor;
• abstracts of a publication;
• reports of Phase 1 trials in healthy subjects; or
• reference publications that contain little or no substantive discussion of the relevant investigation or data.

B.    Manner in which to Disseminate Scientific and Medical Information

Scientific or medical information that is distributed should:

• be in the form of an unabridged reprint, copy of an article, or reference publication;
• not be marked, highlighted, summarized, or characterized by the manufacturer in any way;
• be accompanied by the approved labeling for the drug or medical device;
• be accompanied by a comprehensive bibliography of  publications discussing adequate and well-controlled clinical studies published in a medical journal or medical or scientific text that have been previously published about the use of the drug or medical device covered by the information disseminated (unless the information already includes such a bibliography);
• in cases where the conclusions of article or text to be disseminated have been specifically called into question by another article(s) or text(s), be disseminated with a representative publication that reaches contrary or different conclusions regarding the unapproved use; and
• be distributed separately from information that is promotional in nature.  For example, if a sales representative delivers a reprint to a physician in his office, the reprint should not be physically attached to any promotional material the sales representative uses or delivers during the office visit and should not be the subject of discussion between the sales representative and the physician during the sales visit.⁵  Similarly, while reprints may be distributed at medical or scientific conferences in settings appropriate for scientific exchange, reprints should not be distributed in promotional exhibit halls or during promotional speakers’ programs.

The journal reprint or reference publication should be accompanied by a prominently displayed and permanently affixed statement disclosing:

• that the uses described in the information have not been approved or cleared by FDA, as applicable to the described drug or medical device;
• the manufacturer’s interest in the drug or medical device that is the subject of the journal reprint or reference text;
• any author known to the manufacturer as having a financial interest in the product or manufacturer or receiving compensation from the manufacturer, if applicable;
• any person known to the manufacturer who has provided funding for the study, if applicable; and
• any significant risks or safety concerns known to the manufacturer concerning the unapproved use that are not discussed in the journal article or reference text.

V.    Summary

FDA recognizes that the public health can be served when health care professionals receive truthful and non-misleading scientific and medical information on unapproved uses of approved or cleared medical products.  Accordingly, if a manufacturer follows the recommendations described in Section IV of this draft guidance and there is no unlawful promotion of the product, FDA does not intend to use the distribution of such medical and scientific information as evidence of an intent by the manufacturer that the product be used for an unapproved use.⁶

Footnotes

For More Information

Press Release (February 15, 2008)
Federal Register (Docket No. FDA-2008-D-0053, OC 2007268)

FDA Guidance Documents

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