Free Speech & Off-Label Branding [POLICYbrief]
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Free Speech & Off-Label Branding [POLICYbrief]


Off-label use is when a drug is fully FDA
approved for safety and for a particular purpose, but it’s used or prescribed for a purpose
or a patient population or a dosage that’s different from what the FDA approved. Pharmaceuticals are only approved for particular
purposes. This is because the FDA requires all pharmaceuticals
to be approved not just for safety, but also for efficacy. That means that to be approved by the FDA
for a particular use, a drug or a medical device has to go through that 10-15 year approval
process for each particular use that the pharmaceutical company wants to market it. Today about one in five prescriptions are
prescribed off-label. But even though the treatments are legal,
the FDA prohibits pharmaceutical companies from sharing truthful information about those
off-label uses with doctors, with insurance companies, and with patients. But why would the FDA want to prohibit the
exchange of information that is perfectly truthful? Under 21 USC 352 it is illegal for a pharmaceutical
company to misbrand a drug or other medical device. Federal law defines misbranding as when the
label for the particular treatment does not include adequate instructions for use. The FDA, however, interprets its enforcement
authority of this law very, very broadly. Any time a pharmaceutical company shares information
about an off-label or unapproved use of that treatment, even if the information that the
pharmaceutical company is sharing with doctors or patients is perfectly truthful, and not
misleading. Nevertheless, the FDA considers that to be
misbranding. Branding is a form of speech. After all, it’s just speech that is used to
sell a product or promote an idea in exchange for money. In the Virginia Board of Pharmacy decision,
back in 1976, the United States Supreme Court said it was critical to protect speech, regardless
of whether or not it was made for a commercial motive. The court said, “Speech is not dangerous or
harmful in itself, and consumers need to make decisions for themselves, and can only
make those decisions when they’re fully informed”. The best argument against off-label promotion
goes this way: patients oftentimes are not able to make the best decisions for themselves. Perhaps they have a lot of information at
their disposal, but they are biased. They may be concerned about their own welfare,
they may be scared, they may be desperate. Pharmaceutical companies, on the other hand,
have a financial motive. They want to sell their products to doctors
and to patients, and so they may also be biased, and therefore, we need a neutral arbiter,
somebody like the FDA to come in and make these decisions. And the best way that the FDA has decided
to make these decisions, is to control the type of information that gets shared. The best argument for off-label promotion
is simply this: lack of information can be deadly. When people don’t have all the information
that they need to be able to make informed decisions, they oftentimes don’t make informed
decisions. If pharmaceutical companies aren’t able to
freely share the most cutting edge, up to date information that they have, and only
they have, about treatments, then those people who are making decisions that affect a person’s
life will never be able to make decisions in the most informed way.

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