As most of you know, the Caronia Ruling by the Second Circuit Court of Appeals found that a pharma rep was within his 1st Amendment rights to discuss off label use of his company’s drugs, assuming that those discussions were truthful. This went off like a rifle shot within the pharma world with all sorts of discussions, you can read some of them here, here and here.
It is very likely that this ruling will be appealed to the full Second Circuit, and/or directly to the Supreme Court. But there are reasons to believe that the Supremes may be open this interpretation given their past rulings on similar subjects. Regardless, until this is settled it only applies to the Second Circuit so unless you are a pharma company only doing business in the Second Circuit in and around New York, you can’t make much change.
BUT, what if this becomes the new law of the land? What does it mean for Medical Affairs? That’s what I want to explore in this blog post.
The most obvious impact it has is on all the current focus we place on “proactivity”. I have discussed this topic in detail here, here, and here. I bemoaned the unclear state of the current regs here. Now we are imagining a world where the issue of proactivity has to be seen in a completely different light. MA avoided proactively discussing off-label data on our products because proactivity implied promotion and it is (or in our scenario was) illegal to promote off label. Under this scenario that thinking would be wrong. Replaced, potentially, with a focus on “truthfulness”.
Now, for MA at least, this is an expectation we are more than willing to meet. In the past MA has typically thought of any peer reviewed study as truthful but some of the commentators are suggesting that the definition might become the same one that they use for the FTC. The FTC definition id focused on “…competent, reliable scientific evidence supporting the claims you are making…” so it may not require a peer reviewed journal publication. The one caveat, however, is that if you conduct a test and find that the content being shared is misleading to 20% or more of the targeted consumers, than it is not considered truthful. In general, then, although peer reviewed journals would not be a requirement, it would represent a fairly safe harbor to avoid the risk of sounding misleading.
So, in the future world we are imagining, our field force of MSLs would be free to go out to HCPs armed with peer reviewed journal articles, and introduce the HCP to that article and then proceed to have a scientific exchange about the results, assuming they stick to findings documented in that or other peer reviewed articles.
Scientifically speaking, this frees MSLs to have very wide ranging discussions with HCPs at their initiation and allows for much greater control over the type of discussions that we have with the HCPs. It will allow MSLs to show much greater value to the organization by allowing the targeting of discussions that are the most meaningful to our products. And if you think is hard to hire MSLs today, watch out. With that increase in value will come greater investment in both MSLs and in Investigator Initiated Studies and P4 studies that will now be seen as more valuable as well.
What do you think? Do you think it we will see the end of proactivity restrictions in the next three years? Leave your comments above.