FTC, FDA and DOJ, is this how it will work with
the new MDR?
Most people working with medical devices that are sold in USA
knows what FDA do and their role in promotion and labelling activities.
Not all people understand Federal Trade Commissions (FTC)
role and escaping or handling FDA does not always mean that you are safe! FTC
are perhaps more known for approving deals from a competition perspective, but
that’s also why they look at advertisement and promotion.
FTCs basic requirements are quite straight forward and can be
found on this link. However even
though it should be simple to follow many companies get into trouble.
FDA warning letter
Department of Justice, DOJ typical gets involved when FTC or
FDA have found issues, A FDA warningletter itself does not mean that you
directly get into trouble but often leads to that DOJ looks into the case. If
DOJ determine that they can claim money back from companies or hospitals they
will act.
A typical case:
In case of warning letters due to promotion or advertisement (often
off label claims = not within intended or indication for use) DOJ often can
find wrongly assigned reimbursement codes. If they find this they will claim
that money back. And trust me, if you think FDA can be difficult to handle in a
non-compliance situation, that’s a walk in the park vs DOJ! In the
future I will show several cases in the blog.
One example on this!
The connection to MDR?
In the past promotion and advertisement in Europe have been a national
regulation if regulated at all for B2B type of transactions. With MDR this change
completely, now it will be the law in all EU countries. The rules can be found
in article 7 copied below:
In the labelling, instructions for use, making available,
putting into service and advertising of devices, it shall be prohibited to use
text, names, trademarks, pictures and figurative or other signs that may
mislead the user or the patient with regard to the device’s intended purpose,
safety and performance by:
(a) ascribing functions and properties to the device which
the device does not have;
(b) creating a false impression regarding treatment or
diagnosis, functions or properties which the device does not have;
(c) failing to inform the user or the patient of a likely
risk associated with the use of the device in line with its intended purpose;
(d) suggesting uses for the device other than those stated
to form part of the intended purpose for which the conformity assessment was
carried out.
Who will this apply to?
The rules could apply to most economic operators. The manufacturer, importers
or distributors are probably the ones that most likely could get into trouble
if they do not have this under control. However currently the reimbursement system
does not have the direct relation to intended use why the monetary penalties
most likely will be tied to harm instead. Enforcement will most likely be on
national level due to language used.
