Wednesday, July 31, 2013

Off-Label Mis-Use

The coffers of the United States federal government will swell by $490.9 billion now that Wyeth Pharmaceuticals, Inc. (a division of Pfizer, Inc.), has settled a case brought against it for allegedly violating the Food, Drug & Cosmetics Act.  On July 30, 2013, the settlement was made public in a press release on the U.S. Justice Department's website. The press release outlines the allegations against Wyeth as follows:
The Federal Food, Drug and Cosmetic Act (FDCA) requires a company such as Wyeth to specify the intended uses of a product in its new drug application to the FDA. Once approved, a drug may not be introduced into interstate commerce for unapproved or “off-label” uses until the company receives FDA approval for the new intended uses. In 1999, Wyeth received approval from the FDA for Rapamune use in renal (kidney) transplant patients. However, the information alleges, Wyeth trained its national Rapamune sales force to promote the use of the drug in non-renal transplant patients. Wyeth provided the sales force with training materials regarding non-renal transplant use and trained them on how to use these materials in presentations to transplant physicians. Then, Wyeth encouraged sales force members, through financial incentives, to target all transplant patient populations to increase Rapamune sales.
The press release summarizes the terms of the settlement between Wyeth and the Justice Department:
Wyeth Pharmaceuticals Inc., a pharmaceutical company acquired by Pfizer, Inc. in 2009, has agreed to pay $490.9 million to resolve its criminal and civil liability arising from the unlawful marketing of the prescription drug Rapamune for uses not approved as safe and effective by the U.S. Food and Drug Administration (FDA), the Justice Department announced today. Rapamune is an “immunosuppressive” drug that prevents the body’s immune system from rejecting a transplanted organ.
Details of how the total penalty was calculated are also provided in the press release:
Wyeth has pleaded guilty to a criminal information charging it with a misbranding violation under the FDCA. The resolution includes a criminal fine and forfeiture totaling $233.5 million. Under a plea agreement, which has been accepted by the U.S. District Court in Oklahoma City, Wyeth has agreed to pay a criminal fine of $157.58 million and forfeit assets of $76 million.

The resolution also includes civil settlements with the federal government and the states totaling $257.4 million. Wyeth has agreed to settle its potential civil liability in connection with its off-label marketing of Rapamune. The government alleged that Wyeth violated the False Claims Act, from 1998 through 2009, by promoting Rapamune for unapproved uses, some of which were not medically accepted indications and, therefore, were not covered by Medicare, Medicaid and other federal health care programs. These unapproved uses included non-renal transplants, conversion use (switching a patient from another immunosuppressant to Rapamune) and using Rapamune in combination with other immunosuppressive agents not listed on the label. The government alleged that this conduct resulted in the submission of false claims to government health care programs. Of the amounts to resolve the civil claims, Wyeth will pay $230,112,596 to the federal government and $27,287,404 to the states.
There are several possible explanation for why Wyeth decided to settle.  One is that it calculated its odds of prevailing against the Justice Department as unacceptably low.  Another is that Wyeth decided it would be best for its business prospects to remove the shadow the allegations had cast over it.  A final, more fanciful, possibility is that Wyeth felt distracted hampered by the high-profile dispute;  as Shakespeare wrote, "We do not keep the outward form of order, where there is deep disorder in the mind."

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