AGG Food and Drug Newsletter - August 2020

Arnall Golden Gregory LLP's Food and Drug Newsletter is a monthly update of legal and regulatory issues that affect the FDA-regulated community and highlights articles from members of AGG outside the Food and Drug practice. We are thinking of all of you in these difficult times, and hope all of you and your loved ones are safe.

Industry Insights

I Can’t Drive 55: The Law is the Law and FDA is the Enforcer
By: Alan G. Minsk and Robert Durkin

The Red Rocker, Sammy Hagar, sang in 1984, “I Can’t Drive 55.” When counseling clients at our Firm about the potential of enforcement risk by the Food and Drug Administration (or any other regulatory authority for that matter), we often use the speed limit analogy. Most companies will want to comply with applicable laws because “it is the law,” or non-compliance will cost them more money and time to fix the inevitable problems that will arise, or both. However, there are company executives who will, understandably for business reasons, ask about the potential for “risk” or the consequences if they choose not to follow the letter of the law. (This is typically followed by, “Of course, I want to do the right thing” and “I don’t want to go to jail.) More >

You Can't Say That on TV: FDA Issues an Untitled Letter for an Unlawful Television Ad
By: Alan G. Minsk and Seth S. Ray

The Food and Drug Administration’s Office of Prescription Drug Promotion isn’t letting the Dog Days of Summer stop it from taking action against what it perceives as unlawful marketing. In its first Untitled Letter of 2020 and second letter this year (a Warning Letter was issued in February), OPDP took exception to a television advertisement that it claimed made misleading statements about the drug product’s efficacy and minimized risk information. More >

Food for Thought: How to Keep Clinical Trials Going During the Pandemic
By: Jennifer D. Burgar, Alan G. Minsk, and Genevieve M. Razick

Over the past few months, several clients have alerted us to the delayed or discontinued status of their clinical trials due to the COVID-19 pandemic. Studies typically conducted in physicians’ offices, clinics, or hospitals have been paused as in-person visits to such sites abruptly stopped. Patients are no longer visiting (or visiting in a limited capacity) brick and mortar physicians’ offices and clinics for treatment or follow-up, and visits to hospitals have been curbed due to the pandemic. In March 2020, the Food and Drug Administration issued a guidance document to provide some parameters on the conduct of clinical trials during the pandemic, including amendments to protocol-specified procedures and adhering to protocol-mandated visits and laboratory/diagnostic testing. More >

Are You Ready for OTC Drug Reform? The 180 Day Deadline is Fast-Approaching
By: Carolina M. Wirth and Genevieve M. Razick

The Coronavirus Aid, Relief and Economic Security Act (the CARES Act) ushered in a wave of reforms to the Food and Drug Administration’s regulation of over-the-counter (OTC) drugs in the United States. We previously described these reforms in an article titled, It is Not All About the Coronavirus: The CARES Act Brings Long-Awaited Over-the-Counter (OTC) Monograph Reform. As the first significant update to the OTC regulatory scheme since FDA established the OTC Drug Review process in 1972, it is not surprising that the changes have resulted in a number of questions from clients regarding how to ensure compliance with FDA’s new OTC regulatory regime. This article serves as a reminder of a few key dates for some of the upcoming changes as the agency overhauls its OTC drug review process. More >

No Food for You: FDA Detention of Food
By: Alan G. Minsk and Robert Durkin

Maybe it’s a product that you’ve imported into the U.S. dozens of times. Maybe this is your first time importing this product or you’re working with a new business partner. Maybe you’re very familiar with the process, or maybe this is your first attempt at it. It doesn’t matter, you’ve done your homework, made your plans, you’re ready for the next step and all you need is for the import to arrive. Then you get word: the import is ‘hung up at the border’ – detained – by the Federal Food and Drug Administration (FDA). Now what? More >

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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