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Advertising and promotion of medical devices in EU and US of a non approved product

  • 1.  Advertising and promotion of medical devices in EU and US of a non approved product

    Posted 03-Mar-2022 13:04
    Edited by Mauro Rinaldi 03-Mar-2022 13:22
    Dear Regulatory experts

    The EU MDR regulation allows for advertising and promotion of non-approved products for HCPs to be shown at trade fairs and exhibitions when following these rules:

    • the product shown in the trade fair must be indicated as per demonstration only and not bear the CE mark.
    • Any advertising and promotional material must inform that the product is still not approved for its intended purpose. It is not available for commercialisation until the certification process is completed (art.21 b3 MDR 2017/745).

    Regarding the US, I didn't find a specific rule. I am still investigating. It seems that any advertising and promotion is forbidden until a medical device is approved/listed.

    In the US and EU, any advertising and promotion via WEB of a non-approved medical device is forbidden. However, until the product and the communication are addressed to professional users, investigators, and investors, it is possible to share information concerning the product development progress, including clinical investigation results, submission for the FDA/NB approval.



    Based on your experience, could you please confirm or add any thought to how above?
    Thank you!!


  • 2.  RE: Advertising and promotion of medical devices in EU and US of a non approved product

    Posted 03-Mar-2022 14:36
    It is not completely forbidden in the US for 510(k) products (it generally is for PMA products). FOr 510(k) products, if the 510(k) has been submitted, you can exhibit at a trade show as long as there is a disclaimer (such as 510(k) pending or not for sale in the US) on the materials promoting the device and you do not close any sales nor take any orders for the device.

    Additionally, the FDA generally uses enforcement discretion if a device approved elsewhere but not in the US is shown at a US based trade show, so long as it is clearly noted that it is not approved in the US and it is shown in a section of the booth dedicated to "outside the US" products/indications - many companies accomplish this by having separate rooms or sections of booths staffed only by OUS sales team etc. You do have to make a good faith effort to not promote to US physicians.

    Ginger

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    Ginger Glaser RAC
    Chief Technology Officer
    MN
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  • 3.  RE: Advertising and promotion of medical devices in EU and US of a non approved product

    Posted 03-Mar-2022 15:38
    Based upon direct feedback from an FDA colleague the concern is interfering with healthcare treatments in a manner that injures the patient due to speculation of alternative treatment being available.

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    Edward Panek
    VP, QA/RA
    Med Device
    USN Veteran
    Research into Neural Nets - https://www.twitch.tv/edosani
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  • 4.  RE: Advertising and promotion of medical devices in EU and US of a non approved product

    Posted 04-Mar-2022 03:25
    That's a good topic, Edward. But the product it's not available on the market yet as it is not CE marked and nor FDA cleared.
    So the aim is just to share information with professionals, investors about the progress of a product in the company pipeline.
    Thank you,
    Mauro

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    Mauro
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  • 5.  RE: Advertising and promotion of medical devices in EU and US of a non approved product

    Posted 04-Mar-2022 03:22
    Thank you for your clear reply Ginger!
    Indeed the 510k is filed for a previous version of the product and to my understanding the design changes will generate a new 510k submission that it's not sent yet. So, it's a not approved product.
    Similarly it is in the EU.
    Thanks again,
    Mauro

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    Mauro
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  • 6.  RE: Advertising and promotion of medical devices in EU and US of a non approved product

    Posted 03-Mar-2022 16:54
    Edited by Lin Wu 03-Mar-2022 16:58
    Here are a few tips I can think of:

    For devices pending clearance or approval, can show in a trade show, however, 1) must include pending approval/clearance and state clearly currently under review 2) can display, but not take orders 3) Can accurately describe functions of the device 3) cannot suggest the device is safe or effective 4) Cannot compare to competitor devices. 

    For devices not cleared/approved, can only focus on new technologies in particular areas, no mentioning names/specific products. 

    Hope this helps!


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    Lin Wu, RAC
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  • 7.  RE: Advertising and promotion of medical devices in EU and US of a non approved product

    Posted 04-Mar-2022 03:26
    Thanks for your helpful reply Lin!

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    Mauro
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  • 8.  RE: Advertising and promotion of medical devices in EU and US of a non approved product

    Posted 04-Mar-2022 02:33
    Hi Mauro,

    "In the US and EU, any advertising and promotion via WEB of a non-approved medical device is forbidden" - if it is forbidden there has to be a specific prohibition, of which I am not aware in the MDR or IVDR. There is indeed the trade fairs provision that you refer to, but there is no outright and horizontal prohibition on informing the market about a non-CE marked product in the manufacturer's pipeline. Also, if you refer to the area in which the MDR applies, don't refer to the EU but to the Union. The MDR applies in the Union (see article 5), which is bigger than the EU (EU plus Norway, Iceland, Liechtenstein and Turkey).

    Having researched this question extensively for various clients I landed on the following: you can only place devices on the market in the Union that are CE marked (article 5 (1) MDR and IVDR). Placing on the market can take place by means of an offer and advertising can be seen as an offer depending on the context of the advertising (see Blue Guide), so you definitely want to avoid doing that for a non-CE marked device.  However, if you are very clear in your communication about the non-CE marked device that it is not CE marked yet, and therefore not available yet until it is CE marked, there is a good argument that you are not placing it on the market by means of an offer, which means that it is allowed to inform about pipeline devices.

    This is a gross generalisation of a more nuanced legal argument (yes, that's a disclaimer), but it shows the direction to think in. 

    Best regards,
    Erik


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    Erik Vollebregt
    Partner
    Amsterdam
    Netherlands
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  • 9.  RE: Advertising and promotion of medical devices in EU and US of a non approved product

    Posted 04-Mar-2022 03:17
    Thanks for your complete and clear Reply Erik!
    Yes, the aim is to inform professionals, scientists and investors about the progress of a product in the company pipeline. Therefore the product and corresponding information will be shown in the website and trades clearly stating that it is not available on the market until it is CE marked/cleared.
    Best Regards,
    Mauro


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    Mauro
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  • 10.  RE: Advertising and promotion of medical devices in EU and US of a non approved product

    This message was posted by a user wishing to remain anonymous
    Posted 06-Mar-2022 22:15
    This message was posted by a user wishing to remain anonymous

    On a similar topic, can an IFU (which includes some performance data) for a non-cleared/non CE marked device be shared with a distributor in Canada if the IFU is not provided with any other submission documents?

    The distributor will be submitting to HC on our behalf but the submission package is not quite ready yet. 
     Or... can the IFU be shared only if included with entire submission packet?


  • 11.  RE: Advertising and promotion of medical devices in EU and US of a non approved product

    Posted 07-Mar-2022 01:21
    Dear anonymous,
    To my Experience, no, you cannot share with the market  IFU or inform about safety and performance of a not-cleared product in CAN.
    You can inform the market about the new product and limit the information to the operations of the product (how It works and intended purpose).

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    Mauro
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  • 12.  RE: Advertising and promotion of medical devices in EU and US of a non approved product

    This message was posted by a user wishing to remain anonymous
    Posted 04-Mar-2022 14:27
    This message was posted by a user wishing to remain anonymous

    The only "rule" I am aware of for US is a very old CPG from 1987 (CPG 300.600) which you can find here:

    https://www.fda.gov/regulatory-information/search-fda-guidance-documents/cpg-sec-300600-commercial-distribution-regard-premarket-notification-section-510k

    It is still referred to in recent FDLI articles, so I don't think it has been abandoned or rescinded.