Well, it’s been busy for OPDP (and the Rx Ad/Promo bloggers over at the FDA Law Blog). After getting off to a slow start in 2021, OPDP issued yet another Warning Letter, apparently the day after its first. Unlike the first letter, this OPDP Warning Letter to CooperSurgical appeared “quietly” on FDA’s general Warning Letters page, and without the accompanying fanfare of a CDER press release and Twitter campaign (as we blogged about previously). When checking the status of OPDP’s Warning Letters page, we were surprised (shocked, really) to see that all Warning Letters had been removed and the page had been updated to reflect only Untitled Letters. We’re not happy with this development – having OPDP letters in a single location was incredibly useful when evaluating enforcement trends.
This newest Warning Letter about a video for Paragard (intrauterine copper contraceptive), ticks off several OPDP priority boxes – the product has a broad patient base with a video (airing on TV) that could be considered a wide-reaching promotional campaign, CooperSurgical was the subject of a previous OPDP letter for similar product promotion, and the video was brought to OPDP’s attention through the FDA Bad Ad program.
The offending video, entitled “Paragard: Family Planning During The Pandemic,” is no longer available, but appeared on WBTS’s The Hub Today, a Boston lifestyle and entertainment show. FDA states that CooperSurgical failed to submit a copy of the video at the time of initial dissemination under cover of Form FDA-2253, and FDA’s description of the issues is short and to the point. The video is described as providing claims and representations about the uses and benefits of Paragard, but failing “to communicate any risk information about the product.” FDA specifically notes that referring viewers to the product specific website for further information did not mitigate the “complete omission” of risk information from the video.
CooperSurgical previously received an Untitled Letter in 2019 for a Paragard DTC TV advertisement for omitting important risk information. OPDP so notes in this letter, stating that the new video appears to promote Paragard without presenting the serious risks in truthful and non-misleading manner, “despite concerns previously expressed by OPDP.” The 2019 TV ad had also been reported to FDA under the FDA Bad Ad Program.
It’s likely OPDP may have been moved to issue the Warning Letter because of the perception that the sponsor did not address FDA’s objections to the previous video in the new one. Rather than making the safety information more thorough, the new video seems to omit even more risk information. Another factor may have been the large viewing audience that may have seen the video, which was broadcast on television. This may also make the corrective communication FDA requests in the Warning Letter more challenging.
What is interesting and difficult to discern is whether CooperSurgical considered the video to be Paragard “promotion” and whether CooperSurgical had full control over the content of the video. While the video is no longer available, OPDP describes the original broadcast on the lifestyle and entertainment show as promotional material that included the statement “sponsored by PARAGARD.” Contrast this with OPDP’s 2019 Untitled Letter to Aclaris about a video interview that was broadcast on ABC’s The View, where OPDP cited the video as promotion and included reference to Aclaris’s Form 2253 submission, as well as the company’s re-posting of the video on the Eskata Facebook page and Aclaris LinkedIn page. While industry may sponsor certain scientific and educational activities and not have those activities considered product promotion, there are guardrails, and DTC TV videos likely fall outside of them. And, company intent about whether material is product “promotion” may ultimately be irrelevant to FDA’s determination.