Docket Management
Docket: 02N-0209 - Request for Comment on First Amendment Issues
Comment Number: EC -419

Accepted - Volume 6

Comment Record
Commentor Ms. Quincy Howard Date/Time 2002-09-13 15:04:54
Organization Ms. Quincy Howard
Category Individual

Comments for FDA General
Questions
1. Are there arguments for regulating speech about drugs more comprehensively than, for example, about dietary supplements? What must an administrative record contain to sustain such a position? In particular, could FDA sustain a position that certain promotional speech about drugs is inherently misleading, unless it complies with FDA requirements? Does anything turn on whether the speech is made to learned intermediaries or to consumers? What is the evidentiary basis of such a distinction? Yes. FDA needs to have the power to sustain such a position, regardless of the audience.
2. Is FDA's current position regarding direct-to-consumer and other advertisements consistent with empirical research on the effects of those advertisements, as well as with relevant legal authority? What are the positive and negative effects, if any, of industry's promotion of prescription drugs, biologics, and/or devices? Does the current regulatory approach and its implementation by industry lead to over-prescription of drugs? Do they increase physician visits or patient compliance with medication regimes? Do they cause patient visits that lead to treatment for under-diagnosed diseases? Does FDA's current approach and its implementation by industry lead to adequate treatment for under-diagnosed diseases? Do they lead to adequate patient understanding of the potential risks associated with use of drugs? Does FDA's current approach and its implementation by industry create any impediments to the ability of doctors to give optimal medical advice or prescribe optimal treatment? I believe the current FDA position is totally justified. Positive effects: minimal and subjective educational benefits. Negative effects: unsubstantiated cures, public codependance on prescription drugs, false self-diagnoses. The current regulatory approach and its use by industries is one (if not THE) major contributor to the over-prescription of drugs. They may not increase physician visits, but they definately encourage patients to depend on medications provided by these industries for treatment/cures. They cause patient visits that lead to treatment for IMAGINARY/SUBJECTIVE diseases. Mention of potential risks should include the possibility of the drug not delivering the results that the commercial promises. I don't know the impact it has on physicians' advice and treatment.
3. May FDA distinguish claims concerning conventional foods from those relating to dietary supplements, taking into account limits on claims that can be made about foods in the Nutrition Labeling and Education Act, 21 U.S.C. 301, 321, 337, 343, 371? What must an administrative record contain to sustain or deny claims on food labels? How can information best be presented in a succinct but non-misleading fashion? To what extent do assertions in claims need qualifications or disclaimers added to the label to avoid any misconceptions that consumers may draw? Is there a basis to believe that consumers approach claims about conventional foods and dietary supplements differently? Yes. Statistical evidence of its effectiveness/safety with whatever margin of error is deemed acceptable. Same as previous answer. Include DISCLAIMERS!! These disclaimers/qualifications should ALWAYS be included. I beleive so.
4. Should disclaimers be required to be in the same (or smaller or larger) size of type and given equal prominence with claims? Is there any relevant authority or social science research on this issue? Yes (same size). I don't know.
5. How can warnings be made most effective in preventing harm while minimizing the chances of consumer confusion or inattention? Is there any evidence as to which types of warnings consumers follow or disregard? Qualify the warnings if at all possible (ie what's the severity/probability of potential harm). I don't know.
6. What arguments or social science evidence, if any, can be used to support distinguishing between claims made in advertisements and those made on labels? Does the First Amendment and the relevant social science evidence afford the Government greater latitude over labels? None. I don't know.
7. Would permitting speech by manufacturer, distributor, and marketer about off-label uses undermine the act's requirement that new uses must be approved by the FDA? If so, how? If not, why not? What is the extent of FDA's ability to regulate speech concerning off-label uses? Yes, because it hasn't been tested/approved for that use (could just as well be a new drug introduced). FDA should have great latitude to regulate it.
8. Do FDA's speech-related regulations advance the public health concerns they are designed to address? Are there other alternative approaches that FDA could pursue to accomplish those objectives with fewer restrictions on speech? I believe they do and I don't think commercial speech should be protected under the 1st amemdment.
9. Are there any regulations, guidance, policies, and practices FDA should change, in light of governing First Amendment authority? I dont' know.




EC -419