83_FR_27716 83 FR 27602 - Medical Product Communications That Are Consistent With the Food and Drug Administration-Required Labeling-Questions and Answers; Guidance for Industry; Availability

83 FR 27602 - Medical Product Communications That Are Consistent With the Food and Drug Administration-Required Labeling-Questions and Answers; Guidance for Industry; Availability

DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration

Federal Register Volume 83, Issue 114 (June 13, 2018)

Page Range27602-27605
FR Document2018-12631

The Food and Drug Administration (FDA or Agency) is announcing the availability of a guidance for industry entitled ``Medical Product Communications That Are Consistent With the FDA-Required Labeling-- Questions and Answers.'' This guidance provides information for manufacturers, packers, and distributors and their representatives (collectively ``firms'') of drugs and medical devices for humans, including those that are licensed as biological products, and animal drugs (collectively ``medical products''), about how FDA evaluates their medical product communications that present information that is not contained in the FDA-required labeling for the product but that may be consistent with the FDA-required labeling for the product. The Agency is issuing this guidance to explain FDA's current thinking on commonly asked questions regarding such communications to provide clarity for firms. FDA is also announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.

Federal Register, Volume 83 Issue 114 (Wednesday, June 13, 2018)
[Federal Register Volume 83, Number 114 (Wednesday, June 13, 2018)]
[Notices]
[Pages 27602-27605]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-12631]


-----------------------------------------------------------------------

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2016-D-2285]


Medical Product Communications That Are Consistent With the Food 
and Drug Administration-Required Labeling--Questions and Answers; 
Guidance for Industry; Availability

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice of availability.

-----------------------------------------------------------------------

SUMMARY: The Food and Drug Administration (FDA or Agency) is announcing 
the availability of a guidance for industry entitled ``Medical Product 
Communications That Are Consistent With the FDA-Required Labeling--
Questions and Answers.'' This guidance provides information for 
manufacturers, packers, and distributors and their representatives 
(collectively ``firms'') of drugs and medical devices for humans, 
including those that are licensed as biological products, and animal 
drugs (collectively ``medical products''), about how FDA evaluates 
their medical product communications that present information that is 
not contained in the FDA-required labeling for the product but that may 
be

[[Page 27603]]

consistent with the FDA-required labeling for the product. The Agency 
is issuing this guidance to explain FDA's current thinking on commonly 
asked questions regarding such communications to provide clarity for 
firms. FDA is also announcing that a proposed collection of information 
has been submitted to the Office of Management and Budget (OMB) for 
review and clearance under the Paperwork Reduction Act of 1995.

DATES: The announcement of the guidance is published in the Federal 
Register on June 13, 2018. Submit written comments on the collection of 
information by July 13, 2018.

ADDRESSES: To ensure comments on the information collection are 
received, OMB recommends that written comments be faxed to the Office 
of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, 
Fax: 202-395-7285, or emailed to oira_submission@omb.eop.gov. All 
comments should be identified with the OMB control number 0910--NEW and 
title ``Recommended Content of Medical Product Communications That Are 
Consistent With the FDA-Required Labeling--Questions and Answers; 
Guidance for Industry.'' Also include the FDA docket number found in 
brackets in the heading of this document.
    You may submit either electronic or written comments on Agency 
guidances at any time as follows:

Electronic Submissions

    Submit electronic comments in the following way:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments. Comments submitted 
electronically, including attachments, to https://www.regulations.gov 
will be posted to the docket unchanged. Because your comment will be 
made public, you are solely responsible for ensuring that your comment 
does not include any confidential information that you or a third party 
may not wish to be posted, such as medical information, your or anyone 
else's Social Security number, or confidential business information, 
such as a manufacturing process. Please note that if you include your 
name, contact information, or other information that identifies you in 
the body of your comments, that information will be posted on https://www.regulations.gov.
     If you want to submit a comment with confidential 
information that you do not wish to be made available to the public, 
submit the comment as a written/paper submission and in the manner 
detailed (see ``Written/Paper Submissions'' and ``Instructions'').

Written/Paper Submissions

    Submit written/paper submissions as follows:
     Mail/Hand delivery/Courier (for written/paper 
submissions): Dockets Management Staff (HFA-305), Food and Drug 
Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
     For written/paper comments submitted to the Dockets 
Management Staff, FDA will post your comment, as well as any 
attachments, except for information submitted, marked and identified, 
as confidential, if submitted as detailed in ``Instructions.''
    Instructions: All submissions received must include the Docket No. 
FDA-2016-D-2285 for ``Medical Product Communications That Are 
Consistent With the FDA-Required Labeling--Questions and Answers; 
Guidance for Industry; Availability.'' Received comments will be placed 
in the docket and, except for those submitted as ``Confidential 
Submissions,'' publicly viewable at https://www.regulations.gov or at 
the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through 
Friday.
     Confidential Submissions--To submit a comment with 
confidential information that you do not wish to be made publicly 
available, submit your comments only as a written/paper submission. You 
should submit two copies total. One copy will include the information 
you claim to be confidential with a heading or cover note that states 
``THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.'' The Agency will 
review this copy, including the claimed confidential information, in 
its consideration of comments. The second copy, which will have the 
claimed confidential information redacted/blacked out, will be 
available for public viewing and posted on https://www.regulations.gov. 
Submit both copies to the Dockets Management Staff. If you do not wish 
your name and contact information to be made publicly available, you 
can provide this information on the cover sheet and not in the body of 
your comments and you must identify this information as 
``confidential.'' Any information marked as ``confidential'' will not 
be disclosed except in accordance with 21 CFR 10.20 and other 
applicable disclosure law. For more information about FDA's posting of 
comments to public dockets, see 80 FR 56469, September 18, 2015, or 
access the information at: https://www.thefederalregister.org/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.
    Docket: For access to the docket to read background documents or 
the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in 
the heading of this document, into the ``Search'' box and follow the 
prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane, 
Rm. 1061, Rockville, MD 20852.
    You may submit comments on any guidance at any time (see 21 CFR 
10.115(g)(5)).
    Submit written requests for single copies of this guidance to the 
Division of Drug Information, Center for Drug Evaluation and Research, 
Food and Drug Administration, 10001 New Hampshire Ave., Hillandale 
Building, 4th Floor, Silver Spring, MD 20993-0002; Office of 
Communication, Outreach and Development, Center for Biologics 
Evaluation and Research, Food and Drug Administration, 10903 New 
Hampshire Ave., Bldg. 71, Rm. 3128, Silver Spring, MD 20993-0002; 
Division of Small Manufacturers, International and Consumer Assistance, 
Office of Communication, Education and Radiation Programs, Center for 
Devices and Radiological Health, Food and Drug Administration, 10903 
New Hampshire Ave., Bldg. 66, Rm. 4613, Silver Spring, MD 20993-0002; 
or to Policy and Regulations Staff (HFV-6), Center for Veterinary 
Medicine, Food and Drug Administration, 7500 Standish Pl., Rockville, 
MD 20855. Send one self-addressed adhesive label to assist that office 
in processing your requests. See the SUPPLEMENTARY INFORMATION section 
for electronic access to the guidance document.

FOR FURTHER INFORMATION CONTACT: 
    Regarding the guidance: Kristin Davis, Office of Policy, Office of 
the Commissioner, 10903 New Hampshire Ave., Bldg. 32, Rm. 4252, Silver 
Spring, MD 20993-0002, 301-796-0418; or Elizabeth Pepinsky, Center for 
Drug Evaluation and Research, Food and Drug Administration, 10903 New 
Hampshire Ave., Bldg. 51, Rm. 3248, Silver Spring, MD 20993-0002, 301-
796-1200; or Stephen Ripley, Center for Biologics Evaluation and 
Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 
71, Rm. 7301, Silver Spring, MD 20993-0002, 240-402-7911; or Ana Loloei 
Marsal, Center for Devices and Radiological Health, Food and Drug 
Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5452, Silver 
Spring, MD 20993-0002, 301-796-8774; or Thomas Moskal, Center for 
Veterinary Medicine, Food and Drug Administration, 7519

[[Page 27604]]

Standish Pl. (HFV-216), Rockville, MD 20855, 240-402-6251.
    Regarding the information collection: Domini Bean, Office of 
Operations, Food and Drug Administration, Three White Flint North, 
11601 Landsdown St., 10A-12M, North Bethesda, MD 20852, 301-796-5733, 
PRAStaff@fda.hhs.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    FDA is announcing the availability of a guidance for industry 
entitled ``Medical Product Communications That Are Consistent With the 
FDA-Required Labeling--Questions and Answers.'' This guidance provides 
information for firms about how FDA evaluates their medical product 
communications (that fall within the scope of FDA's regulatory 
authority) that present information that is not contained in the FDA-
required labeling \1\ for the product but that may be consistent with 
the FDA-required labeling for the product.
---------------------------------------------------------------------------

    \1\ As used in the guidance, the term FDA-required labeling 
includes the labeling reviewed and approved by FDA as part of the 
medical product marketing application review process. For products 
not subject to premarket approval, but instead subject to premarket 
notification (510(k)) requirements or exempt from premarket review, 
the term FDA-required labeling includes the labeling that provides 
adequate directions for use and other information required to appear 
on the label or in labeling.
---------------------------------------------------------------------------

    FDA determines whether a medical product is safe and effective for 
use under the conditions prescribed, recommended, or suggested in the 
proposed labeling submitted with the product's marketing application or 
submission (and for devices, also during the classification process). 
In making this determination, FDA evaluates whether the conditions of 
use in the proposed labeling are supported by the required levels and 
types of evidence of safety and effectiveness and whether the benefits 
of using the product under those specific conditions of use outweigh 
the risks of the product. After FDA approves, clears, or licenses a 
medical product, the FDA-required labeling sets forth the conditions of 
use under which the product has been shown to meet the relevant 
standard for marketing, and it provides directions and information on 
how to use the product safely and effectively under those conditions.
    Medical product firms have told FDA that they are interested in 
communicating, including in their promotional materials, data and 
information about the approved/cleared/licensed uses of their products 
that are not contained in their products' FDA-required labeling. We are 
aware that firms have questions about how FDA determines whether such 
communications are consistent with the FDA-required labeling.
    The guidance describes FDA's thinking when examining the 
consistency of a firm's product communications with that product's own 
FDA-required labeling. As explained in the guidance, if a firm 
communicates information that is not contained in its product's FDA-
required labeling but that is determined to be consistent with the FDA-
required labeling, FDA does not intend to rely on that communication to 
establish a new intended use, different from the use(s) for which the 
product is legally marketed. Establishing a product's intended uses is 
an element in establishing certain violations under the Federal Food, 
Drug, and Cosmetic Act (FD&C Act) and Public Health Service Act. 
However, firms' communications about their products that are consistent 
with the products' FDA-required labeling but that are false or 
misleading may subject a firm to enforcement action under the FD&C Act. 
Thus, the guidance not only describes FDA's thinking on communications 
that are consistent with the FDA-required labeling, but also provides 
general recommendations intended to aid firms in complying with 
requirements in the FD&C Act and FDA's implementing regulations for 
conveying information that is consistent with the FDA-required labeling 
in a truthful and non-misleading way. The general recommendations 
provided in the guidance for conveying information in a truthful and 
non-misleading way are applicable only to drug and device labeling and 
prescription drug and restricted device advertising that are consistent 
with the FDA-required labeling. Communication of information that is 
not consistent with the FDA-required labeling is outside the scope of 
these recommendations.
    This guidance is being issued consistent with FDA's good guidance 
practices regulation (21 CFR 10.115). The guidance represents the 
current thinking of FDA on firms' communications for their medical 
products that may be consistent with the FDA-required labeling. It does 
not establish any rights for any person and is not binding on FDA or 
the public. You can use an alternative approach if it satisfies the 
requirements of the applicable statutes and regulations. This guidance 
is not subject to Executive Order 12866.

II. Paperwork Reduction Act of 1995

    In compliance with 44 U.S.C. 3507, FDA has submitted the following 
proposed collection for OMB review and clearance.
    Title: Recommended Content of Medical Product Communications That 
Are Consistent With the FDA-Required Labeling; OMB Control No. 0910--
NEW.
    The guidance includes third-party disclosure recommendations 
regarding information that firms should include in communications that 
contain information not found in the FDA-required labeling for their 
medical products but that are consistent with the FDA-required labeling 
(as explained in the guidance) if they choose to publicly disseminate 
such materials. The guidance recommends that various aspects of study 
design and methodology for studies relied on in such communications be 
disclosed to provide material contextual information (e.g., type of 
study, study objectives, product dosage/use regimens, control(s) used, 
patient population studied), and that material limitations related to 
the study design, methodology, and results also be disclosed in a clear 
and prominent manner to help ensure that the communications are not 
false or misleading. Additionally, the guidance recommends that firms 
accurately characterize and contextualize the relevant information 
about the product, including by disclosing unfavorable or inconsistent 
findings. Finally, the guidance recommends that firms disclose material 
contextual information from the FDA-required labeling in these 
communications, such as data and information from studies in the FDA-
required labeling that are relevant to the data or information 
presented in the communication (e.g., if a communication provides post-
market information about the types and rates of occurrence of adverse 
events that have been observed in practice, the communication should 
also include information from the FDA-required labeling about the types 
and rates of occurrence of adverse reactions observed in clinical 
trials to provide context).
    In the Federal Register of January 19, 2017 (82 FR 6575), we 
published a notice announcing the availability of the draft guidance 
document and included an analysis under the PRA of the information 
collection burden associated with our recommendations. No comments were 
received in response to the four information collection topics 
solicited in the notice.
    According to FDA data, approximately 162,000 FDA-regulated

[[Page 27605]]

promotional materials are prepared by approximately 500 firms annually. 
Of these materials, we estimate approximately 5 percent contain unique 
presentations of information consistent with FDA-required labeling, as 
described in the guidance, submitted by approximately 64 percent (or 
324) of the firms. Anticipating that the number of these FDA-regulated 
promotional materials will soon increase to 6 percent, we estimate the 
324 firms will prepare and disseminate annually 9,720 FDA-regulated 
promotional materials that contain unique presentations of information 
that is consistent with the FDA-required labeling, as described in the 
guidance, and that therefore are recommended to include the proposed 
third party disclosures. Based on our experience reviewing FDA-
regulated promotional materials for medical products, we estimate it 
will take respondents approximately 4 hours per unique presentation to 
prepare and incorporate the disclosures recommended in the guidance, if 
they choose to disseminate this information.
    We therefore estimate the burden of the information collection as 
follows:

                                               Table 1--Estimated Annual Third-Party Disclosure Burden \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         Number of
                        Type of information                             Number of     disclosures per    Total annual    Average burden    Total hours
                                                                       respondents       respondent      disclosures     per disclosure
--------------------------------------------------------------------------------------------------------------------------------------------------------
Recommended information to be included when firms choose to                     324               30            9,720                4           38,880
 disseminate communications that are consistent with the FDA-
 required labeling.................................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ There are no capital costs or operating and maintenance costs associated with this collection of information.

    FDA is issuing this final guidance subject to OMB approval of the 
collection of information. Before implementing the information 
collection provisions of the guidance, FDA will publish a notice in the 
Federal Register announcing OMB's decision to approve, modify, or 
disapprove the collection of information, including OMB control 
number(s) for newly approved collections.

III. Electronic Access

    Persons with access to the internet may obtain the guidance at 
either https://www.fda.gov/Drugs/GuidanceComplianceRegulatoryInformation/Guidances/default.htm, https://www.fda.gov/BiologicsBloodVaccines/GuidanceComplianceRegulatoryInformation/Guidances/default.htm, https://www.fda.gov/MedicalDevices/DeviceRegulationandGuidance/GuidanceDocuments/default.htm, https://www.fda.gov/AnimalVeterinary/GuidanceComplianceEnforcement/GuidanceforIndustry/default.htm, or 
https://www.regulations.gov.

    Dated: June 7, 2018.
Leslie Kux,
Associate Commissioner for Policy.
[FR Doc. 2018-12631 Filed 6-12-18; 8:45 am]
 BILLING CODE 4164-01-P



                                              27602                                 Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices

                                              New York City, Washington DC, 5 U.S.                                      condition. Private personally                                 department uses to process and send
                                              territories (American Samoa, the                                          identifiable information (PII) is                             case notification data from their
                                              Commonwealth of Northern Mariana                                          collected from automated electronic                           jurisdiction to CDC. Specifically, the
                                              Islands, Guam, Puerto Rico, and the U.S.                                  messages and information can be                               burden estimates include separate
                                              Virgin Islands), and 3 freely associated                                  retrieved by PII. In addition, some                           burden hours incurred for automated
                                              states (Federated States of Micronesia,                                   combinations of submitted data                                and non-automated transmissions,
                                              the Republic of the Marshall Islands,                                     elements could potentially be used to                         separate weekly burden hours incurred
                                              and the Republic of Palau). This                                          identify individuals. Private information                     for modernizing surveillance systems as
                                              information is shared across                                              is not be disclosed unless otherwise                          part of NNDSS Modernization Initiative
                                              jurisdictional boundaries and both                                        compelled by law. All data are treated
                                                                                                                                                                                      (NMI) implementation, separate burden
                                              surveillance and prevention and control                                   in a secure manner consistent with the
                                                                                                                                                                                      hours incurred for annual data
                                              activities are coordinated at regional                                    technical, administrative, and
                                              and national levels.                                                      operational controls required by the                          reconciliation and submission, and
                                                 Approximately 90% of case                                              Federal Information Security                                  separate one-time burden hours
                                              notifications are encrypted and                                           Management Act of 2002 (FISMA) and                            incurred for the addition of new
                                              submitted to NNDSS electronically from                                    the 2010 National Institute of Standards                      diseases and data elements. The burden
                                              already existing databases by automated                                   and Technology (NIST) Recommended                             estimates also include the one-time
                                              electronic messages. When automated                                       Security Controls for Federal                                 burden for reporting jurisdictions for the
                                              transmission is not possible, case                                        Information Systems and Organizations.                        addition of case notification data for
                                              notifications are faxed, emailed,                                         Weekly tables of nationally notifiable                        CP–CRE and C. auris and disease-
                                              uploaded to a secure network or entered                                   diseases are available through CDC                            specific data elements for CP–CRE. The
                                              into a secure website. All case                                           WONDER and data.cdc.gov. Annual                               estimated annual burden for the 233
                                              notifications that are faxed, emailed,                                    summaries of finalized nationally                             respondents is 18,619 hours. The cost of
                                              and uploaded are done so in the form                                      notifiable disease data are published on                      the information collection is $787,846.
                                              of an aggregate weekly or annual report,                                  CDC WONDER and data.cdc.gov and                               The total burden hours increased from
                                              not individual cases. These different                                     disease-specific data are published by                        18,529 to 18,619 since the last revision
                                              mechanisms used to send case                                              individual CDC programs.                                      because of the addition of diseases and
                                              notifications to CDC vary by the                                             The burden estimates include the                           disease-specific data elements.
                                              jurisdiction and the disease or                                           number of hours that the public health

                                                                                                                      ESTIMATED ANNUALIZED BURDEN HOURS
                                                                                                                                                                                                        Average
                                                                                                                                                                                      Number of                         Total
                                                                                                                                                                   Number of                          burden per
                                                        Type of respondents                                                 Form name                                               responses per                      burden
                                                                                                                                                                  respondents                          response
                                                                                                                                                                                      respondent                     (in hours)
                                                                                                                                                                                                       (in hours)

                                              States   ................................................   Weekly (Automated) .........................                       50                52            20/60           867
                                              States   ................................................   Weekly (Non-Automated) .................                           10                52                2         1,040
                                              States   ................................................   Weekly (NMI Implementation) ..........                             50                52                4        10,400
                                              States   ................................................   Annual ..............................................              50                 1               75         3,750
                                              States   ................................................   One-time Addition of Diseases and                                  50                 1               10           485
                                                                                                            Data Elements.
                                              Territories    ..........................................   Weekly (Automated) .........................                          1              52            20/60             17
                                              Territories    ..........................................   Weekly, Quarterly (Non-Automated)                                     5              56            20/60             93
                                              Territories    ..........................................   Weekly (NMI Implementation) ..........                                5              52                4          1,040
                                              Territories    ..........................................   Annual ..............................................                 5               1                5             25
                                              Territories    ..........................................   One-time Addition of Diseases and                                     1               1            10/60              1
                                                                                                            Data Elements.
                                              Freely Associated States ..................                 Weekly, Quarterly (Non-Automated)                                     3              56            20/60                56
                                              Freely Associated States ..................                 Annual ..............................................                 3               1                5                15



                                              Jeffrey M. Zirger,                                                        DEPARTMENT OF HEALTH AND                                      announcing the availability of a
                                              Acting Chief, Information Collection Review                               HUMAN SERVICES                                                guidance for industry entitled ‘‘Medical
                                              Office, Office of Scientific Integrity, Office                                                                                          Product Communications That Are
                                              of the Associate Director for Science, Office                             Food and Drug Administration                                  Consistent With the FDA-Required
                                              of the Director, Centers for Disease Control                                                                                            Labeling—Questions and Answers.’’
                                                                                                                        [Docket No. FDA–2016–D–2285]
                                              and Prevention.                                                                                                                         This guidance provides information for
                                              [FR Doc. 2018–12637 Filed 6–12–18; 8:45 am]                               Medical Product Communications That                           manufacturers, packers, and distributors
                                              BILLING CODE 4163–18–P                                                    Are Consistent With the Food and                              and their representatives (collectively
                                                                                                                        Drug Administration-Required                                  ‘‘firms’’) of drugs and medical devices
                                                                                                                        Labeling—Questions and Answers;                               for humans, including those that are
amozie on DSK3GDR082PROD with NOTICES1




                                                                                                                        Guidance for Industry; Availability                           licensed as biological products, and
                                                                                                                        AGENCY:       Food and Drug Administration,                   animal drugs (collectively ‘‘medical
                                                                                                                        HHS.                                                          products’’), about how FDA evaluates
                                                                                                                                                                                      their medical product communications
                                                                                                                        ACTION:      Notice of availability.
                                                                                                                                                                                      that present information that is not
                                                                                                                        SUMMARY: The Food and Drug                                    contained in the FDA-required labeling
                                                                                                                        Administration (FDA or Agency) is                             for the product but that may be


                                         VerDate Sep<11>2014       18:01 Jun 12, 2018          Jkt 244001      PO 00000       Frm 00065       Fmt 4703     Sfmt 4703   E:\FR\FM\13JNN1.SGM   13JNN1


                                                                           Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices                                          27603

                                              consistent with the FDA-required                        manner detailed (see ‘‘Written/Paper                      Docket: For access to the docket to
                                              labeling for the product. The Agency is                 Submissions’’ and ‘‘Instructions’’).                   read background documents or the
                                              issuing this guidance to explain FDA’s                                                                         electronic and written/paper comments
                                                                                                      Written/Paper Submissions
                                              current thinking on commonly asked                                                                             received, go to https://
                                              questions regarding such                                   Submit written/paper submissions as                 www.regulations.gov and insert the
                                              communications to provide clarity for                   follows:                                               docket number, found in brackets in the
                                              firms. FDA is also announcing that a                       • Mail/Hand delivery/Courier (for                   heading of this document, into the
                                              proposed collection of information has                  written/paper submissions): Dockets                    ‘‘Search’’ box and follow the prompts
                                              been submitted to the Office of                         Management Staff (HFA–305), Food and                   and/or go to the Dockets Management
                                              Management and Budget (OMB) for                         Drug Administration, 5630 Fishers                      Staff, 5630 Fishers Lane, Rm. 1061,
                                              review and clearance under the                          Lane, Rm. 1061, Rockville, MD 20852.                   Rockville, MD 20852.
                                              Paperwork Reduction Act of 1995.                           • For written/paper comments                           You may submit comments on any
                                              DATES: The announcement of the                          submitted to the Dockets Management                    guidance at any time (see 21 CFR
                                              guidance is published in the Federal                    Staff, FDA will post your comment, as                  10.115(g)(5)).
                                              Register on June 13, 2018. Submit                       well as any attachments, except for                       Submit written requests for single
                                              written comments on the collection of                   information submitted, marked and                      copies of this guidance to the Division
                                              information by July 13, 2018.                           identified, as confidential, if submitted              of Drug Information, Center for Drug
                                                                                                      as detailed in ‘‘Instructions.’’                       Evaluation and Research, Food and
                                              ADDRESSES: To ensure comments on the
                                                                                                         Instructions: All submissions received              Drug Administration, 10001 New
                                              information collection are received,
                                                                                                      must include the Docket No. FDA–                       Hampshire Ave., Hillandale Building,
                                              OMB recommends that written
                                                                                                      2016–D–2285 for ‘‘Medical Product                      4th Floor, Silver Spring, MD 20993–
                                              comments be faxed to the Office of
                                                                                                      Communications That Are Consistent                     0002; Office of Communication,
                                              Information and Regulatory Affairs,
                                                                                                      With the FDA-Required Labeling—                        Outreach and Development, Center for
                                              OMB, Attn: FDA Desk Officer, Fax: 202–
                                                                                                      Questions and Answers; Guidance for                    Biologics Evaluation and Research,
                                              395–7285, or emailed to oira_
                                                                                                      Industry; Availability.’’ Received                     Food and Drug Administration, 10903
                                              submission@omb.eop.gov. All
                                                                                                      comments will be placed in the docket                  New Hampshire Ave., Bldg. 71, Rm.
                                              comments should be identified with the
                                                                                                      and, except for those submitted as                     3128, Silver Spring, MD 20993–0002;
                                              OMB control number 0910—NEW and
                                                                                                      ‘‘Confidential Submissions,’’ publicly                 Division of Small Manufacturers,
                                              title ‘‘Recommended Content of Medical
                                                                                                      viewable at https://www.regulations.gov                International and Consumer Assistance,
                                              Product Communications That Are
                                                                                                      or at the Dockets Management Staff                     Office of Communication, Education
                                              Consistent With the FDA-Required
                                                                                                      between 9 a.m. and 4 p.m., Monday                      and Radiation Programs, Center for
                                              Labeling—Questions and Answers;
                                                                                                      through Friday.                                        Devices and Radiological Health, Food
                                              Guidance for Industry.’’ Also include
                                                                                                         • Confidential Submissions—To                       and Drug Administration, 10903 New
                                              the FDA docket number found in
                                                                                                      submit a comment with confidential                     Hampshire Ave., Bldg. 66, Rm. 4613,
                                              brackets in the heading of this
                                                                                                      information that you do not wish to be                 Silver Spring, MD 20993–0002; or to
                                              document.
                                                                                                      made publicly available, submit your                   Policy and Regulations Staff (HFV–6),
                                                 You may submit either electronic or
                                                                                                      comments only as a written/paper                       Center for Veterinary Medicine, Food
                                              written comments on Agency guidances
                                                                                                      submission. You should submit two                      and Drug Administration, 7500 Standish
                                              at any time as follows:
                                                                                                      copies total. One copy will include the                Pl., Rockville, MD 20855. Send one self-
                                              Electronic Submissions                                  information you claim to be confidential               addressed adhesive label to assist that
                                                Submit electronic comments in the                     with a heading or cover note that states               office in processing your requests. See
                                              following way:                                          ‘‘THIS DOCUMENT CONTAINS                               the SUPPLEMENTARY INFORMATION section
                                                • Federal eRulemaking Portal:                         CONFIDENTIAL INFORMATION.’’ The                        for electronic access to the guidance
                                              https://www.regulations.gov. Follow the                 Agency will review this copy, including                document.
                                              instructions for submitting comments.                   the claimed confidential information, in               FOR FURTHER INFORMATION CONTACT:
                                              Comments submitted electronically,                      its consideration of comments. The                       Regarding the guidance: Kristin Davis,
                                              including attachments, to https://                      second copy, which will have the                       Office of Policy, Office of the
                                              www.regulations.gov will be posted to                   claimed confidential information                       Commissioner, 10903 New Hampshire
                                              the docket unchanged. Because your                      redacted/blacked out, will be available                Ave., Bldg. 32, Rm. 4252, Silver Spring,
                                              comment will be made public, you are                    for public viewing and posted on                       MD 20993–0002, 301–796–0418; or
                                              solely responsible for ensuring that your               https://www.regulations.gov. Submit                    Elizabeth Pepinsky, Center for Drug
                                              comment does not include any                            both copies to the Dockets Management                  Evaluation and Research, Food and
                                              confidential information that you or a                  Staff. If you do not wish your name and                Drug Administration, 10903 New
                                              third party may not wish to be posted,                  contact information to be made publicly                Hampshire Ave., Bldg. 51, Rm. 3248,
                                              such as medical information, your or                    available, you can provide this                        Silver Spring, MD 20993–0002, 301–
                                              anyone else’s Social Security number, or                information on the cover sheet and not                 796–1200; or Stephen Ripley, Center for
                                              confidential business information, such                 in the body of your comments and you                   Biologics Evaluation and Research,
                                              as a manufacturing process. Please note                 must identify this information as                      Food and Drug Administration, 10903
                                              that if you include your name, contact                  ‘‘confidential.’’ Any information marked               New Hampshire Ave., Bldg. 71, Rm.
                                              information, or other information that                  as ‘‘confidential’’ will not be disclosed              7301, Silver Spring, MD 20993–0002,
                                              identifies you in the body of your                      except in accordance with 21 CFR 10.20                 240–402–7911; or Ana Loloei Marsal,
amozie on DSK3GDR082PROD with NOTICES1




                                              comments, that information will be                      and other applicable disclosure law. For               Center for Devices and Radiological
                                              posted on https://www.regulations.gov.                  more information about FDA’s posting                   Health, Food and Drug Administration,
                                                • If you want to submit a comment                     of comments to public dockets, see 80                  10903 New Hampshire Ave., Bldg. 66,
                                              with confidential information that you                  FR 56469, September 18, 2015, or access                Rm. 5452, Silver Spring, MD 20993–
                                              do not wish to be made available to the                 the information at: https://www.gpo.gov/               0002, 301–796–8774; or Thomas
                                              public, submit the comment as a                         fdsys/pkg/FR-2015-09-18/pdf/2015-                      Moskal, Center for Veterinary Medicine,
                                              written/paper submission and in the                     23389.pdf.                                             Food and Drug Administration, 7519


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                                              27604                        Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices

                                              Standish Pl. (HFV–216), Rockville, MD                   FDA-required labeling. We are aware                    II. Paperwork Reduction Act of 1995
                                              20855, 240–402–6251.                                    that firms have questions about how                       In compliance with 44 U.S.C. 3507,
                                                Regarding the information collection:                 FDA determines whether such                            FDA has submitted the following
                                              Domini Bean, Office of Operations,                      communications are consistent with the                 proposed collection for OMB review
                                              Food and Drug Administration, Three                     FDA-required labeling.                                 and clearance.
                                              White Flint North, 11601 Landsdown                         The guidance describes FDA’s                           Title: Recommended Content of
                                              St., 10A–12M, North Bethesda, MD                        thinking when examining the                            Medical Product Communications That
                                              20852, 301–796–5733, PRAStaff@                          consistency of a firm’s product                        Are Consistent With the FDA-Required
                                              fda.hhs.gov.                                            communications with that product’s                     Labeling; OMB Control No. 0910—NEW.
                                              SUPPLEMENTARY INFORMATION:                              own FDA-required labeling. As                             The guidance includes third-party
                                                                                                      explained in the guidance, if a firm                   disclosure recommendations regarding
                                              I. Background                                                                                                  information that firms should include in
                                                                                                      communicates information that is not
                                                 FDA is announcing the availability of                contained in its product’s FDA-required                communications that contain
                                              a guidance for industry entitled                        labeling but that is determined to be                  information not found in the FDA-
                                              ‘‘Medical Product Communications That                   consistent with the FDA-required                       required labeling for their medical
                                              Are Consistent With the FDA-Required                    labeling, FDA does not intend to rely on               products but that are consistent with the
                                              Labeling—Questions and Answers.’’                       that communication to establish a new                  FDA-required labeling (as explained in
                                              This guidance provides information for                  intended use, different from the use(s)                the guidance) if they choose to publicly
                                              firms about how FDA evaluates their                     for which the product is legally                       disseminate such materials. The
                                              medical product communications (that                    marketed. Establishing a product’s                     guidance recommends that various
                                              fall within the scope of FDA’s regulatory               intended uses is an element in                         aspects of study design and
                                              authority) that present information that                establishing certain violations under the              methodology for studies relied on in
                                              is not contained in the FDA-required                    Federal Food, Drug, and Cosmetic Act                   such communications be disclosed to
                                              labeling 1 for the product but that may                 (FD&C Act) and Public Health Service                   provide material contextual information
                                              be consistent with the FDA-required                     Act. However, firms’ communications                    (e.g., type of study, study objectives,
                                              labeling for the product.                               about their products that are consistent               product dosage/use regimens, control(s)
                                                 FDA determines whether a medical                     with the products’ FDA-required                        used, patient population studied), and
                                              product is safe and effective for use                   labeling but that are false or misleading              that material limitations related to the
                                              under the conditions prescribed,                        may subject a firm to enforcement                      study design, methodology, and results
                                              recommended, or suggested in the                        action under the FD&C Act. Thus, the                   also be disclosed in a clear and
                                              proposed labeling submitted with the                    guidance not only describes FDA’s                      prominent manner to help ensure that
                                              product’s marketing application or                      thinking on communications that are                    the communications are not false or
                                              submission (and for devices, also during                consistent with the FDA-required                       misleading. Additionally, the guidance
                                              the classification process). In making                  labeling, but also provides general                    recommends that firms accurately
                                              this determination, FDA evaluates                       recommendations intended to aid firms                  characterize and contextualize the
                                              whether the conditions of use in the                    in complying with requirements in the                  relevant information about the product,
                                              proposed labeling are supported by the                  FD&C Act and FDA’s implementing                        including by disclosing unfavorable or
                                              required levels and types of evidence of                regulations for conveying information                  inconsistent findings. Finally, the
                                              safety and effectiveness and whether the                that is consistent with the FDA-required               guidance recommends that firms
                                              benefits of using the product under                     labeling in a truthful and non-                        disclose material contextual information
                                              those specific conditions of use                        misleading way. The general                            from the FDA-required labeling in these
                                              outweigh the risks of the product. After                recommendations provided in the                        communications, such as data and
                                              FDA approves, clears, or licenses a                                                                            information from studies in the FDA-
                                                                                                      guidance for conveying information in a
                                              medical product, the FDA-required                                                                              required labeling that are relevant to the
                                                                                                      truthful and non-misleading way are
                                              labeling sets forth the conditions of use                                                                      data or information presented in the
                                                                                                      applicable only to drug and device
                                              under which the product has been                                                                               communication (e.g., if a
                                                                                                      labeling and prescription drug and
                                              shown to meet the relevant standard for                                                                        communication provides post-market
                                                                                                      restricted device advertising that are
                                              marketing, and it provides directions                                                                          information about the types and rates of
                                                                                                      consistent with the FDA-required
                                              and information on how to use the                                                                              occurrence of adverse events that have
                                                                                                      labeling. Communication of information
                                              product safely and effectively under                                                                           been observed in practice, the
                                                                                                      that is not consistent with the FDA-
                                              those conditions.                                                                                              communication should also include
                                                                                                      required labeling is outside the scope of
                                                 Medical product firms have told FDA                                                                         information from the FDA-required
                                                                                                      these recommendations.
                                              that they are interested in                                                                                    labeling about the types and rates of
                                              communicating, including in their                          This guidance is being issued                       occurrence of adverse reactions
                                              promotional materials, data and                         consistent with FDA’s good guidance                    observed in clinical trials to provide
                                              information about the approved/                         practices regulation (21 CFR 10.115).                  context).
                                              cleared/licensed uses of their products                 The guidance represents the current                       In the Federal Register of January 19,
                                              that are not contained in their products’               thinking of FDA on firms’                              2017 (82 FR 6575), we published a
                                                                                                      communications for their medical                       notice announcing the availability of the
                                                1 As used in the guidance, the term FDA-required      products that may be consistent with                   draft guidance document and included
                                              labeling includes the labeling reviewed and             the FDA-required labeling. It does not                 an analysis under the PRA of the
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                                              approved by FDA as part of the medical product
                                              marketing application review process. For products
                                                                                                      establish any rights for any person and                information collection burden
                                              not subject to premarket approval, but instead          is not binding on FDA or the public.                   associated with our recommendations.
                                              subject to premarket notification (510(k))              You can use an alternative approach if                 No comments were received in response
                                              requirements or exempt from premarket review, the       it satisfies the requirements of the                   to the four information collection topics
                                              term FDA-required labeling includes the labeling
                                              that provides adequate directions for use and other
                                                                                                      applicable statutes and regulations. This              solicited in the notice.
                                              information required to appear on the label or in       guidance is not subject to Executive                      According to FDA data,
                                              labeling.                                               Order 12866.                                           approximately 162,000 FDA-regulated


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                                                                            Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices                                            27605

                                              promotional materials are prepared by                     materials will soon increase to 6                       experience reviewing FDA-regulated
                                              approximately 500 firms annually. Of                      percent, we estimate the 324 firms will                 promotional materials for medical
                                              these materials, we estimate                              prepare and disseminate annually 9,720                  products, we estimate it will take
                                              approximately 5 percent contain unique                    FDA-regulated promotional materials                     respondents approximately 4 hours per
                                              presentations of information consistent                   that contain unique presentations of                    unique presentation to prepare and
                                              with FDA-required labeling, as                            information that is consistent with the                 incorporate the disclosures
                                              described in the guidance, submitted by                   FDA-required labeling, as described in                  recommended in the guidance, if they
                                              approximately 64 percent (or 324) of the                  the guidance, and that therefore are                    choose to disseminate this information.
                                              firms. Anticipating that the number of                    recommended to include the proposed                       We therefore estimate the burden of
                                              these FDA-regulated promotional                           third party disclosures. Based on our                   the information collection as follows:

                                                                                     TABLE 1—ESTIMATED ANNUAL THIRD-PARTY DISCLOSURE BURDEN 1
                                                                                                                                            Number of                             Average
                                                                                                                          Number of         disclosures       Total annual                     Total
                                                                     Type of information                                                                                         burden per
                                                                                                                         respondents            per           disclosures                      hours
                                                                                                                                                                                 disclosure
                                                                                                                                            respondent

                                              Recommended information to be included when firms
                                                choose to disseminate communications that are con-
                                                sistent with the FDA-required labeling .............................         324                  30             9,720               4        38,880
                                                 1 There   are no capital costs or operating and maintenance costs associated with this collection of information.


                                                FDA is issuing this final guidance                      DEPARTMENT OF HEALTH AND                                thinking on frequently asked questions
                                              subject to OMB approval of the                            HUMAN SERVICES                                          regarding these topics in order to
                                              collection of information. Before                                                                                 provide clarity for firms and payors.
                                              implementing the information                              Food and Drug Administration                            FDA is also announcing that a proposed
                                              collection provisions of the guidance,                    [Docket No. FDA–2016–D–1307]                            collection of information has been
                                              FDA will publish a notice in the Federal                                                                          submitted to the Office of Management
                                              Register announcing OMB’s decision to                     Drug and Device Manufacturer                            and Budget (OMB) for review and
                                              approve, modify, or disapprove the                        Communications With Payors,                             clearance under the Paperwork
                                              collection of information, including                      Formulary Committees, and Similar                       Reduction Act of 1995.
                                              OMB control number(s) for newly                           Entities—Questions and Answers;                         DATES: The announcement of the
                                              approved collections.                                     Guidance for Industry; Availability                     guidance is published in the Federal
                                                                                                        AGENCY:        Food and Drug Administration,            Register on June 13, 2018. Submit
                                              III. Electronic Access                                                                                            written comments on the collection of
                                                                                                        HHS.
                                                                                                                                                                information by July 13, 2018.
                                                Persons with access to the internet                     ACTION:    Notice of availability.
                                              may obtain the guidance at either                                                                                 ADDRESSES: To ensure comments on the
                                              https://www.fda.gov/Drugs/Guidance                        SUMMARY:   The Food and Drug                            information collection are received,
                                                                                                        Administration (FDA or Agency) is                       OMB recommends that written
                                              ComplianceRegulatoryInformation/
                                                                                                        announcing the availability of a                        comments be faxed to the Office of
                                              Guidances/default.htm, https://
                                                                                                        guidance for industry entitled ‘‘Drug                   Information and Regulatory Affairs,
                                              www.fda.gov/BiologicsBloodVaccines/
                                                                                                        and Device Manufacturer                                 OMB, Attn: FDA Desk Officer, Fax: 202–
                                              GuidanceComplianceRegulatory                              Communications With Payors,                             395–7285, or emailed to oira_
                                              Information/Guidances/default.htm,                        Formulary Committees, and Similar                       submission@omb.eop.gov. All
                                              https://www.fda.gov/MedicalDevices/                       Entities—Questions and Answers.’’ This                  comments should be identified with the
                                              DeviceRegulationandGuidance/                              guidance provides answers to common                     OMB control number 0910-New and
                                              GuidanceDocuments/default.htm,                            questions regarding the communication                   title ‘‘Recommendations for Drug and
                                              https://www.fda.gov/AnimalVeterinary/                     of health care economic information (d)                 Device Manufacturer Communications
                                              GuidanceComplianceEnforcement/                            about approved prescription drugs and                   With Payors, Formulary Committees,
                                              GuidanceforIndustry/default.htm, or                       approved or cleared medical devices by                  and Similar Entities.’’ Also include the
                                              https://www.regulations.gov.                              medical product manufacturers,                          FDA docket number found in brackets
                                                Dated: June 7, 2018.                                    packers, distributers, and their                        in the heading of this document.
                                                                                                        representatives (firms) to payors,                         You may submit either electronic or
                                              Leslie Kux,
                                                                                                        formulary committees, or other similar                  written comments on Agency guidances
                                              Associate Commissioner for Policy.                        entities with knowledge and expertise                   at any time as follows:
                                              [FR Doc. 2018–12631 Filed 6–12–18; 8:45 am]               in the area of health care economic
                                              BILLING CODE 4164–01–P                                    analysis (collectively referred to as                   Electronic Submissions
                                                                                                        payors). This guidance also provides                      Submit electronic comments in the
                                                                                                        answers to common questions about                       following way:
                                                                                                        both firms’ dissemination of information                  • Federal eRulemaking Portal:
amozie on DSK3GDR082PROD with NOTICES1




                                                                                                        to payors about medical products that                   https://www.regulations.gov. Follow the
                                                                                                        are not yet approved or cleared for any                 instructions for submitting comments.
                                                                                                        use and firms’ dissemination of                         Comments submitted electronically,
                                                                                                        information to payors about unapproved                  including attachments, to https://
                                                                                                        uses of approved or cleared medical                     www.regulations.gov will be posted to
                                                                                                        products. The Agency is issuing this                    the docket unchanged. Because your
                                                                                                        guidance to explain FDA’s current                       comment will be made public, you are


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Document Created: 2018-06-12 23:58:54
Document Modified: 2018-06-12 23:58:54
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice of availability.
DatesThe announcement of the guidance is published in the Federal Register on June 13, 2018. Submit written comments on the collection of information by July 13, 2018.
ContactRegarding the guidance: Kristin Davis, Office of Policy, Office of the Commissioner, 10903 New Hampshire Ave., Bldg. 32, Rm. 4252, Silver Spring, MD 20993-0002, 301-796-0418; or Elizabeth Pepinsky, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 3248, Silver Spring, MD 20993-0002, 301- 796-1200; or Stephen Ripley, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993-0002, 240-402-7911; or Ana Loloei Marsal, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5452, Silver Spring, MD 20993-0002, 301-796-8774; or Thomas Moskal, Center for Veterinary Medicine, Food and Drug Administration, 7519 Standish Pl. (HFV-216), Rockville, MD 20855, 240-402-6251.
FR Citation83 FR 27602 

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