Take a look at his full statement below:
The government has determined not to seek further review of the Second Circuit’s decision in United States v. Caronia, No. 09-5006-cr (2d Cir.). FDA does not believe that the Caronia decision will significantly affect the agency’s enforcement of the drug misbranding provisions of the Food, Drug, and Cosmetic Act (FD&C Act).
In 2009, Alfred Caronia was convicted of conspiring to distribute a misbranded drug in violation of the FD&C Act. A divided panel of the Second Circuit held that the jury instructions erroneously permitted, and that the government’s argument encouraged, the jury to treat speech promoting unapproved (off-label) uses of an FDA-approved drug as a criminal offense in and of itself. The court of appeals did not address the constitutionality of the theory of liability on which the government had defended the conviction: namely, that the promotion of a drug for an unapproved use may be relied on as evidence that the unapproved use is an intended one, and a drug that lacks adequate directions for its intended uses is misbranded.
Because the court did not address the constitutionality of a prosecution resting on that theory, and because the court also acknowledged that the First Amendment does not preclude an enforcement action based on speech regarding unapproved uses that is false or misleading, the Second Circuit’s decision does not bar the government from continuing to enforce the misbranding provisions of the FD&C Act, including through criminal prosecution where appropriate, in cases involving off-label promotion. More generally, the decision does not strike down any provision of the FD&C Act or its implementing regulations, nor does it find a conflict between the Act’s misbranding provisions and the First Amendment or call into question the validity of the Act’s drug approval framework.
Bottom line, they are sticking with the belief that while anyone has the "right" to promote off-label, doing so ultimately leads to misbranding which is in violation of the FD&C act. How you square this with the Second Circuit's ruling that there is protection for promoting off-label as long as the information provided is true will be an argument that will, no doubt, end up back in court. I'm not a lawyer but I thought my rights trump your laws.
But for now off-label promotion remains open to OPDP enforcement.
What are your thoughts?
h/t PharmaExec Blog