Testimony of
Elliott J. Millenson
Former President & CEO, J&J/Direct Access Diagnostics
(emillenson@verizon.net)
FDA Blood Products Advisory Committee
March 10, 2006
Good
morning. I’m Elliott Millenson. I’m here today to present the true history of
home AIDS testing, which differs substantially from the fairy tale history
presented by FDA. It’s important to
correct the record - to provide perspective - as it has great bearing on your
deliberations. In 1985, I founded the
company that developed the world’s first home AIDS test, although I no longer
have any financial interest in AIDS testing.
FDA has blocked home AIDS testing for two decades despite
strong scientific support and a compelling public need. Forsaking its role as the watchdog of
America’s health, FDA became the lapdog of special interests. Yielding to political pressure, FDA ignored
unambiguous science and banned home AIDS tests, sentencing tens of thousands of
Americans to death.
Early History of AIDS Testing
When
AIDS first appeared in the U.S. in the early 1980s, many of those infected with
HIV organized and demanded treatments.
These AIDS activists demonstrated and lobbied aggressively at all levels
of government with particular focus on influencing FDA. Once an HIV test was developed in 1985,
making tests as widely available as possible would have been the obvious and
logical public health response to a fatal, sexually transmitted disease. But AIDS activists opposed testing - fearful
of its impact on their lives. They were
afraid that employers, government, and sex partners would want to know their
HIV serostatus. So public health
officials let the fears of the infected prevail over the rights of the
uninfected.
Promoting
condoms - despite their high failure rate - became the cornerstone of our
national “don’t ask-don’t tell” approach to AIDS prevention. The idea - first promulgated by those
infected with HIV - is that your partner doesn’t need to know whether you’re
infected, you just have to use condoms. Condoms help. But the truth is, having sex with an HIV
infected partner is never “safe”, even with a condom. A sound public health policy would strongly
advocate testing as well as condoms. It
would make HIV tests widely accessible and would encourage knowing your
partner’s HIV status. But, public health officials, who knew widespread access
to testing could help prevent the spread of AIDS, rejected the clarity of
science for the fog of politics.
History of Home AIDS Testing
I
conceived the idea for a rapid home AIDS test in 1985 – over 20 years ago. By 1986 my company’s scientists had
determined it was technically feasible to develop a safe, effective, and
affordable test. So, I met with
FDA. I revealed my company’s research
showing the majority of Americans wanted a home HIV test, and that many people
would only get tested using a home test - findings later confirmed by CDC. I explained government could even give away
home tests to those who could not afford one – an approach that would be more
effective and economical than a brick and mortar approach of funding hundreds
of independent testing clinics. FDA told
me they would “probably never” consider a rapid home AIDS test.
FDA Bans All Home AIDS Tests
After meeting with FDA, rather than developing a rapid
AIDS test we developed a vastly inferior product - a blood collection kit. We felt there was a greater chance of
overcoming FDA’s opposition to home AIDS testing with this as an initial step. In 1987, after successful clinical trials at
Johns Hopkins, we submitted to FDA our premarket approval application (PMA)
which demonstrated our test’s safety and efficacy.
But
a perfect political storm hit home AIDS testing. AIDS activists and those with a financial
interest in HIV testing swiftly made their opposition known to FDA. Testing clinics, whose funding was linked to
the number of tests performed, aggressively lobbied FDA and Congress to block
approval of our test.
In
March 1988, succumbing to this political pressure, FDA published criteria
banning all home HIV tests – our blood collection kit as well as rapid tests.
FDA concocted reasons for its ban;
foremost among them was the claim of a significant risk of suicide with a home
AIDS test. Despite data showing a third
of Americans preferred a home test, FDA denied them this choice, claiming it
was necessary to compel them to have face-to-face counseling to protect them
from committing suicide. Let me be
emphatically clear. There was never any
data to support FDA’s absurd claim. In
fact, there was substantial data presented to FDA by my company as well as by
experts in the field of suicide prevention, that suicide was not a risk. FDA
also invented a plethora of other baseless arguments
against home testing: people would engage in risky sexual behaviors without
face to face counseling; that during the window period, people would spread the
disease if they received a negative result from a home test, but not if they
received their result in a clinic. There
were no data to support these claims.
But
FDA was not interested in data. FDA was
only interested in appeasing special interests.
In announcing its 1988 ban, FDA obfuscated, making the seemingly
reasonable announcement that they had established five criteria for reviewing a
home HIV test application. FDA indicated
they would not review any applications that did not meet all of their five
criteria. Let’s take a look:
1.The [HIV test] kits must be
labeled and marketed for professional use only within a comprehensive health
care environment, for example, hospitals, medical clinics, doctors’ offices
doctors’ offices, sexually transmitted disease clinics, alternative test sites
and mental health clinics.
2.The kits must provide for the
collection of a venipuncture or other appropriately validated sample by one who
is recognized by a state or local authority to perform such procedures.
3.The testing sequence for all
samples collected with the kits must include use of a licensed screening test
for antibody to HIV and, for those samples testing positive by the screening
test, the use of an additional more specific test, that is, the Western blot or
comparable test. It is recommended that
a licensed, more specific test be utilized.
However, the Agency may accept a properly validated unlicensed test
until licensed tests are more widely available.
4.The instructions for sample
collection, storage, shipping and testing must conform with or be validated as
equivalent to the package insert instructions for the specific licensed
antibody test kit used to test the samples.
5.All results of testing must
be reported directly to a professional health care provider for reporting and
interpretation of the results of the test to the requestor, as well as for
counseling of the individual.
We
can stop at the first requirement because it’s a showstopper. The criteria say that FDA will not even
review an application for any HIV test unless a professional health care
provider administers it in a medical facility.
FDA’s criteria represented a de facto ban on home AIDS testing. So, FDA refused to even review my company’s
application, although it contained data responding to the very concerns FDA had
raised.
I
persevered and continued to fight, often a lone voice. AIDS activists fought back. Armed with no data to support their claims of
the dangers of home AIDS testing, they continued to vehemently lobby against
such tests. They testified against home
AIDS tests at Congressional and FDA hearings.
They lobbied in numerous states as well, including New York, Florida,
Texas, and California and successfully pushed for legislation banning home HIV
tests.
In 1990 - 3 years after our submission - I sued FDA,
seeking to compel them to review our data.
To settle that lawsuit, FDA finally agreed to review my application and
hold an Advisory Committee meeting. In
its story on the settlement, The New York Times
reported that “[FDA’s CBER Director Paul] Parkman said the agency was not
softening its opposition to home testing kits that would check blood samples
and give a result instantly, tests that are theoretically possible although
none has been formally proposed.” The
usual suspects showed up at FDA’s 1990 Advisors meeting to express their strong
opposition to our home AIDS test. The
laboratory and medical associations. The
clinics. The activists. FDA and CDC also expressed grave concerns
about the risk of suicides, and other completely unsupported issues with no
scientific basis. They argued that face
to face counseling was essential despite CDC data revealing 80-90% of people
received no pre or post test counseling with their HIV test using existing test
alternatives. Only one of FDA’s advisors
had the courage to vote for approval.
Disturbed by FDA’s attempt to bias its own Advisory Committee, this
advisor commented, “It was almost as if this matter was brought before FDA’s
subcommittee on non-approvability.”
After FDA’s 1990 Advisors meeting, I sued FDA again –
seeking an unbiased review. In
settlement of that lawsuit three years later in 1993, FDA agreed to again
review my application, this time “as expeditiously as possible”. The FDA Commissioner’s Office indicated,
though, that I would need to build political support for our test and reverse
state laws before it could be approved.
Until then, their 5 criteria from 1988 would still officially be in
place.
So, over the next two years, I met with AIDS interest
groups and leading AIDS activists, calming their concerns about our test. We formed an Advisory Group composed of
leading AIDS activists, physicians, and scientists. We received support from minority groups like
NAACP and National Council of La Raza. Leaders in Congress, on both sides of
the aisle, supported our test after we met and they learned about our test’s
potential to save lives. Newspapers like
the Los Angles Times supported home
AIDS testing on their editorial pages.
And, we worked with the states – which reversed their laws that banned
our test. In short, we gave FDA the
political cover they had requested.
So in 1994 – with essentially the same data we’d brought
to FDA in 1987 – FDA’s Advisory Committee met and supported approval of our
test. The clinics, which feared
competition, still opposed our test. So
despite its promise to “expeditiously review” our application, FDA took two
more years before it ultimately changed some of its criteria (not the ones
which restrict a rapid HIV test) and approved my company’s product in
1996. I left the business shortly
thereafter. At that time, there was
still strong political opposition to a rapid home test, and FDA had still not
changed its criteria that precluded approval of such a test. Ten years have now
passed.
Home AIDS Testing Today
Today, FDA
is reconsidering its opposition, stating as its reason that:
“With
improved test kit technology (ease of use, freedom from biohazards, and excellent performance characteristics),
we believe it may be feasible to
identify regulatory criteria for home-use HIV test kits.”
The real reason FDA’s position has softened is a warming
political climate, not improved test kit technology. FDA’s ban – not a lack of technology – is the
reason no company has approached FDA seeking approval for a home AIDS test
before now. Major health care companies
are well aware that FDA has had a longstanding bias against home AIDS tests.
Let me provide perspective. In 1994, my company – by that time a Johnson
& Johnson subsidiary - had developed a rapid home-use HIV saliva test which
had cost and performance characteristics as good or better than the rapid tests
available today. We did not seek
approval because FDA made it clear they would not even consider an application.
An entrepreneur can afford to fight FDA.
A large company with a diverse product portfolio is afraid to antagonize
the regulator of its pipeline.
I have no doubt there are companies with strong
development and manufacturing expertise which have proven consumer marketing
and distribution capabilities that could enter this arena with even more
effective and efficient products than what we had in 1994. They must be encouraged to do so.
For
20 years, devoid of data, FDA invented the theoretical risk of suicide to do
the bidding of AIDS activists and competitors of home tests - testing clinics
and labs. When
politics isn’t its guiding light, FDA relies on science. Last month, for example, an FDA Advisory
Committee recommended a black box warning label on stimulants. The New York Times reported, “F.D.A. officials said that warning patients about
a theoretical risk might scare many away from needed treatment. ‘We still believe that what you tell people
should reflect the available data,’ said Dr. Robert Temple, director of the
agency's office of medical policy.” FDA’s mandate is clear: to be above
politics and make life affecting decisions based on data, not unsupported
theories. Yet at today’s meeting FDA is still raising baseless
theoretical risks it claims are associated with home AIDS tests. In its background materials for this meeting
for example, FDA states:
·
Home use HIV test kits may lead to coercive testing for HIV.
·
Inappropriate use of the test or test result, including
misinterpretation (e.g. relying on the test to provide an accurate result after
a very recent exposure), may lead to a false sense of security. Continued high risk behavior may result in
additional HIV infections.
·
Home-use test kits
rely on informational material for pre-test and post-test counseling. Without live counseling there is a potential
for adverse outcomes following obtaining a positive test result.
·
Home –use HIV test kits may lead to coercive testing for
HIV.
Home
AIDS testing can reduce the spread of infection – both from the 25% of those
HIV infected Americans who don’t know it and are infecting others - as well as
from the alarmingly high number of those infected with HIV who know they are
infected and don’t tell their sex partners.
More than a million Americans have become infected with HIV while FDA
has raised the unsupported concern that home testing will lead to suicide and
an increase in “risky behavior”. In
fact, CDC data reveal it’s safer to just test and know your partner’s status,
even taking into account the window period inherent with any HIV test, than to
just rely on condoms. So the safer sex
is sex with testing. Yet, FDA has
allowed condoms to be promoted as “safe” despite their limitations, while
contending with no scientific basis that home AIDS tests are too dangerous to
allow on the market. We need both in our
arsenal to fight AIDS.
Having served in the US Public Health Service, I know
that most people in public health, including FDA, care deeply about doing the
right thing for America. The political
climate for home AIDS testing is warming.
Yet FDA continues to raise baseless risks about home AIDS tests and
sweep the true history under the rug.
FDA must take affirmative actions to provide Americans the choice of a
home AIDS test – and send a clear message to industry and consumers that it is
ready to regulate home AIDS tests based on science not politics.
Thank you.