This also appears in the comment-box for the original “Dear Doctor” letter post. I felt it (like the CafePharma post itself) deserved a wider audience — so here is our exchange — in full:
In the US any written material provided by a companay relating to an approved drug including advertising is ‘labeling’.
This is what the Food Drug and Cosmetics Act has to say about labeling:
Food, Drug & Cosmetics Act
SEC. 502. [21 USC 352] Misbranded Drugs and Devices
A drug or device shall be deemed to be misbranded. . . .
(a) False or misleading label. If its labeling is false or misleading in any particular. . . .
(j) Health-endangering when used as prescribed. If it is dangerous to health when used in the dosage or manner or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof.
Now if Vytorin is paid for by Medicaid or Medicare the following is something else to consider.
18 USC § 371. Conspiracy to commit offense or to defraud United States
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor. . . .
July 25, 2008 4:35 AM
Quick correction. Not only advertising but printed materials are considered labeling for determination of misbranding.
See FD&CA SEC. 201:
. . . .(m) The term “labeling” means all labels and other written, printed, or graphic matters (1) upon any article or any of its containers or wrappers, or (2) accompanying such article.
(n) If an article is alleged to be misbranded because the labeling or advertising is misleading, then in determining whether the labeling or advertising is misleading there shall be taken into account (among other things) not only representations made or suggested by statement, word, design, device, or any combination thereof, but also the extent to which the labeling or advertising fails to reveal facts material in the light of such representations or material with respect to consequences which may result from the use of the article to which the labeling or advertising relates under the conditions of use prescribed in the labeling or advertising thereof or under such conditions of use as are customary or usual. . . .
So if they only give out a letter about Cancer if requested, is this failure to reveal material facts? What about all the other clauses and the fact that it’s illegal to introduce into interstate commerce a drug that’s misbranded?
Discuss among yourselves.
July 25, 2008 4:52 AM
Salmon — you’ve just gone where I was headed, next — swimming up the very same river, it seems — I’ll likely highlight yours, in a new post, later today, and with it, predict that in perhaps only a few days’ time, the FDA will “give Schering a call” about less than complete transparency — i.e., reticence on material saftey information. . . .
Perhaps I’ll caption it:
“How to help an ordinary train-wreck. . . catch fire, and explode, to boot!”
But make no mistake about it — this looks to fit the Hassan-led Schering pattern, to a tee — torture a very-dubious position until it is barely recognizable as attempted compliance with the applicable law — and thus, put Schering into an even deeper hole, as opposed to digging Schering out of one.
Great post — thanks for the research materials, Salmon!
July 25, 2008 6:32 AM
Feel free to chime in, any and or all of you wise FDA-heads looking in from Potomac, Maryland — Host: wallwhale-pub.fda.gov — ISP: Parklawn Computer Center / Dimes Hq. Seriously — I welcome your observations. This seems right up the Agency’s alley, doesn’t it?
I would also welcome anonymous (or attributed) comments on any or all of this from the wise folks in Frederick, Maryland, at the National Institutes of Health (NIH) — Host: fernwood-arbiter-a.net.nih.gov — ISP: National Institutes Of Health. . . .
I promise no individual’s identity will ever be revealed — similarly, I will never disclose whether someone inside (or outside) these groups posted any particular comment.