Regulatory Open Forum

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  • 1.  Medical Device claims - no clearance/approval/Est Reg

    Posted 12-Mar-2015 07:48
    Dear Forum,
    what are the most effective ways to bring FDA's attention to a company that makes product claims that clearly fall under the definition of a medical device, but the company does not have a clearance, approval or does not appear to meet/comply with any general controls?

    - submitting a report of suspected criminal activity using the OCI's web form?
    - contacting compliance officer (director?) of a regional office where the company is based?
    - others?


    Thanks for your help and suggestions 
    --

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    Michael Zagorski
    Director of Regulatory Affairs and Quality
    Impact Applications, Inc.
    Pittsburgh PA
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  • 2.  RE: Medical Device claims - no clearance/approval/Est Reg

    Posted 12-Mar-2015 12:26
    Michael,

    Good to see your post filled with good and innocent intent.

    May I offer my piece of advice/suggestion?

    Please just let it go for some justifiable and justified reasons! 





  • 3.  RE: Medical Device claims - no clearance/approval/Est Reg

    Posted 16-Mar-2015 12:11
    I'd make an assessment (realistic, not motivated or biased by commercial implications to my company) of potential harm to patient of an adulterated/misbranded product, and choose an appropriate route of communication to the Agency.  Alternatives include: a letter to District Compliance where company is located; a friendly, inquisitive call to the applicable Office in DC if you have a good relationship with someone there; or more hands-off approach through regulatory counsel (allows you & your company to remain anonymous, and also allows you to get unbiased advice as to validity of your complaint before initiating).  I've never initiated a communication without solid evidence, investigation, and risk assessment to patient and my own company.  There are always consequences in these situations, make sure you're doing it for the right reasons.

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    Robin Hart, PhD
    VP, Quality & Regulatory
    Sera Prognostics, Inc.

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  • 4.  RE: Medical Device claims - no clearance/approval/Est Reg

    Posted 15-Mar-2015 12:32
    An interesting question.

    Are you saying that the device is not listed with FDA?  Is the manufacturer's establishment registered?


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    Julie Omohundro RAC
    Durham NC
    United States




  • 5.  RE: Medical Device claims - no clearance/approval/Est Reg

    Posted 16-Mar-2015 10:55
    Michael:

    I don't know what the context for your question is but I am routinely annoyed by ads making cliams that seem inappropriate at best.  Absent direct harm to someone you know, a letter brining it to the attention of the local office is about as far as one should go.

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    John English, HCCP
    John T English LLC
    Florham Park NJ
    United States
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  • 6.  RE: Medical Device claims - no clearance/approval/Est Reg

    Posted 17-Mar-2015 10:52
    Here's an escalation hierarchy for your consideration:

    1) Contact the company and alert them to the issue.  They may fix it on their own.

    2) Contact the National Advertising Division (NAD) of the Better Business Bureau (they perform an independent review and issue a decision within 60-days).  They may also refer the issue to FDA if they conclude there is a violation that the company refuses to correct.  An issue may receive greater attention from FDA if referred by the NAD.

    3) Contact FDA as indicated by others. 

    Of course, if you go after another company don't be surprised if they critically review your materials too...

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    Brian Young RAC
    Principal and Chief Regulator Consultant
    Parenteau Bioconsultants LLC
    Boerne TX
    United States
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  • 7.  RE: Medical Device claims - no clearance/approval/Est Reg

    Posted 16-Mar-2015 12:20
    Hello Micheal,

    I am pleased to see your initiative in the interest of protecting public health. 

    As you mentioned, you can provide a written complaint to OCI at the following address (Office of Criminal Investigations Food and Drug Administration 7500 Standish Place Rockville, MD 20855) or they might also have a web interface to do so. Additionally, there is a relatively new division under 'Office of Compliance' called the Division of Pre-market and Labeling Compliance (Surveillance and Enforcement Branch). I believe this could fall under them and you can reach out to OC. 

    Thank you
    -------------------------------------------
    Shiven Gandhi
    Regulatory Affairs Specialist
    Medtronic PLC
    San Francisco CA
    United States
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  • 8.  RE: Medical Device claims - no clearance/approval/Est Reg

    Posted 17-Mar-2015 16:29
    Thank you all for comments and suggestions. I would like to address some of them.

    There are a couple of reasons why I'm bring up this topic. One, truly is protection of the public, as I hope will become apparent in a moment. The other, not as important as public safety, but (let's be real) important nevertheless, is protection of business. Regulatory compliance is an intensive process, in terms of time and resources; and if some companies can get away without complying with regulations, while others do, it sets an uneven playing field. FDA cannot enforce this on their own. It's an indirect risk to the public too, because if companies that comply see that compliance is not enforced they too will start cutting corners.

    The company in question, actually several, some are just more blatant or loud than others, make what I believe medical device claims, but do not have approvals/clearances/registrations. Some, as is very typical to mobile health space, make device claims, but then add a disclaimer that their product is "not a medical device". I would like to keep this discussion general, because I'm sure others wondered about this too, but to provide a little context I'll say that the companies claim their products can "detect concussions". 
    In my opinion, that's a medical device; and one with potential risks especially if promoted for use by lay users.
    --


    MikeZ




  • 9.  RE: Medical Device claims - no clearance/approval/Est Reg

    Posted 23-Mar-2015 21:51

    FDA has few to no mechanisms in place to reliably identify companies or products that are flying under their radar.  This is not unique to FDA; it's how government oversight agencies tend to work.  The IRS oversees taxpayers who self-identify by getting a TIN.  The EPA oversees companies who register with them, like device companies register with FDA.

    As a result, the most common way FDA hears about these companies and products is through reports from the public--healthcare practitioners, competitors, law firms, patient advocacy groups, etc.  Competitor reports are common, for obvious reasons, but other parties with concerns about patient safety are also important sources. 

    The FDA gets these reports all the time.  The Office of Compliance has an Allegations of Regulatory Misconduct Branch that is charged with investigating these reports.  OC has a mailbox which has been set up specifically to receive and investigate these reports:  OCMedicalDeviceCo@fda.hhs.gov.

    However, I would recommend you proceed with caution when it comes to assuming they are engaged in misconduct.  It is not always that easy to tell from the outside looking in.  If the company does not appear to be registered with FDA, you might start by trying to, first, confirm that they aren't registered and then, if not, determine why not.  If they are registered, but the device isn't listed, then I would try to investigate this as well.  Sometimes the company is registered and/or the device is listed, but that isn't readily apparent for one reason or another.

    You can try contacting the company directly.  If you are a competitor, you might not get very far, but at least you will have given them an opportunity to explain before you approach FDA.  If they are not in compliance, sometimes the mere fact that someone has inquired will be sufficient to inspire them to get their regulatory ducks in a row.

    As others have noted, you probably also want to be sure that your own house is in order before you pursue this type of thing aggressively.  And definitely that your management is on board.  Companies that are operating well out of regulatory compliance have an unfair competitive advantage. This can jeopardize the financial health of their competitors, and companies have a right to protect their financial health from being undermined by the illegal actions of others.  Still, this isn't something to be pursued lightly.


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    Julie Omohundro RAC
    Durham NC
    United States
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