Compliance

Introduction

“Stem cell therapies may offer the potential to treat diseases or conditions for which few treatments exist. They have the potential to repair, restore, replace, and regenerate cells, and could possibly be used to treat many medical conditions and diseases.”

“But FDA is concerned that some patients seeking cures and remedies are vulnerable to stem cell treatments that are illegal and potentially harmful. FDA is increasing its oversight and enforcement to protect people from dishonest and unscrupulous stem cell clinics.” (FDA 11/2017)

FDA Standards

Consumer Advice

  • “Ask if FDA has reviewed treatment. Ask before getting treatment—even if the stem cells are your own.”
  • “Request facts and ask questions.”

Regulatory Standards

  • Standards Coordinating Body
  • Framework for the Regulation of Regenerative Medicine Products
  • Standards Development for Regenerative Medicine Therapies
  • Warning Letters

FTC Advertising Rules

FTC knows Google

  • Website review for false and deceptive advertising.
  • FTC Act
    • Unfair and Deceptive Acts and Practices 15 U.S.C. § 45
    • False Advertising 15 U.S.C. § 52
    • Stem Cell Therapy is a “drug” 15 U.S.C.§55(c)

FTC focus on deceptive stem cell advertising in conjunction with FDA warning letters.

Washington State

  • Washington requires informed consent for stem cell therapies. RCW 18.130.420

“THIS NOTICE MUST BE PROVIDED TO YOU UNDER WASHINGTON LAW. This health care practitioner performs one or more stem cell therapies that have not yet been approved by the United States food and drug administration. You are encouraged to consult with your primary care provider prior to undergoing a stem cell therapy.”

Scope of Practice and Partnerships

Multi-disciplinary practices require strict attention to scope of practice issues and appropriate staff supervision.

Employment, contracting, and business organization can make or break a health care practice.

FDA and FTC Laws

Public Health Services Act (PHSA)

§351 of the PHSA identifies products that are regulated as biologicals. §361 grants FDA authority to adopt regulations to prevent the introduction, transmission, and spread of communicable diseases.

Food, Drug, and Cosmetic Act (the “FDCA”)

FDCA prohibits taking any act with respect to a “drug” “if such act is done while such article is held for sale . . . after shipment in interstate commerce and results in such article being adulterated or misbranded.” 21 U.S.C. § 331(k)

Federal Trade Commission Act 15 USC §52

Prohibits “false advertising” likely to induce the purchase of food, drugs, services, or cosmetics. [Washington version – RCW 19.86.020]

FTC Health Claims Regulation

Stricter advertising health claim standards – e.g., FTC v Regenerative and Telehealth Medical Groups.

FDA and FTC Laws Continued

FDA and FTC Laws Continued

FTC Endorsement Guide

Testimonials claiming specific results usually will be interpreted to mean that the endorser’s experience reflects what others can also expect. Statements like “Results not typical” or “Individual results may vary” won’t change that interpretation. That leaves advertisers with two choices:

  1. Have adequate proof to back up the claim that the results shown in the ad are typical, or
  2. Clearly and conspicuously disclose the generally expected performance in the circumstances shown in the ad.

Hyperlinks that simply say “disclaimer,” “more information,” “details,” “terms and conditions,” or “fine print” do not convey the importance, nature, and relevance of the information to which they lead and are likely to be inadequate.

FTC Advertising Focus

  • Substantiate health claims and implied claims.
  • Use testimonials cautiously even if using disclaimers.
  • Make disclaimers clear and conspicuous not small and minor.
  • Don’t negate your disclaimer with a contradictory claim.
  • False advertising cases are easy to bring by viewing websites.