When Bexis sends round his weekly checklist of doubtless bloggable instances, we all the time lunge for the felony issues, that are pretty uncommon. Instances introduced below Title 21 carry us again to our days on the U.S. Lawyer’s workplace, the place we knew nothing of billable hours, MDL case administration orders, fancy workplace espresso machines, or a military of younger legal professionals obtainable to assist with analysis and drafting. After we represented the USA of America, we had been usually in court docket, usually on our personal, and but usually dealing from positions of power.  We miss each little bit of that job, besides the paycheck. 

We’re much more prone to weblog a few case if it follows up on an earlier determination about which we scribbled.  Such is the case with United States v. Facteau, 2023 WL 8641918 (1st Cir. Dec. 14, 2023). On this newest and biggest entry within the Facteau saga, the First Circuit affirmed felony convictions of company executives for off-label promotion over a robust first modification problem.  Now we have blogged about this prosecution twice earlier than. Our take was that felony prosecutions that largely relaxation on truthful off label promotions are fairly iffy from the attitude of first modification considerations, and the courts in Facteau appear to acknowledge the legitimacy of such considerations even while giving the prosecutors a grudging okay.  The First Circuit’s determination has not modified our thoughts about that. 

Our earlier posts undergo the background of the Facteau case, however right here’s a quick refresher in case vacation dissipations or indolence stop you from clicking on the hyperlinks:  Two former executives at a medical gadget producer had been charged with commercially distributing an adulterated and misbranded medical gadget in violation of 21 U.S.C. part 331(a).  The gadget was envisioned as a approach of delivering a steroid to cut back sinus irritation, however the unique part 510(ok) clearance was restricted to utilizing the gadget as a post-surgical spacer able to releasing saline.  The plan was to pursue a later, second 510(ok) clearance for the steroid supply perform.  However that later 510(ok) clearance by no means occurred.  The FDA took the place that such a 510(ok) clearance would contain a mixture drug/gadget product.  Presumably, such an utility would have been an enormous deal.  As a substitute, it was no deal. For no matter purpose, the corporate didn’t submit the paperwork for the clearance.  However, in accordance with the federal government, the corporate went forward and marketed the gadget for the unapproved steroid supply utility. The corporate sponsored convention panels in regards to the steroid supply utility, and likewise educated gross sales reps and surgeons on that side of the gadget. The FDA believed that the defendants had been advertising the gadget for an “supposed use” that was a “main change or modification” from the cleared use.  Such a departure from the scope of clearance would render the gadget adulterated and misbranded.  So we acquired this prosecution, a trial, a verdict, and a few attention-grabbing motions.     

After a thirty day jury trial, the 2 executives had been discovered responsible of a number of misdemeanor violations of the Meals, Drug, and Beauty Act, however had been acquitted of the felony accounts.  After the decision, the defendants filed publish trial motions difficult the convictions as violations of the executives’ first modification rights.  The motions relied “on an rising physique of legislation defending industrial speech that promotes off-label makes use of of medical merchandise.”  The executives additionally raised due course of below the fifth modification and varied different grounds in difficult the convictions, together with insufficiency of the proof.  The trial court docket denied the defendants’ post-trial motions (we wrote about that call right here), and subsequently appealed to the First Circuit.

The First Circuit affirmed the convictions.  The defendants had requested the trial court docket for a jury instruction stopping the jury “from contemplating any truthful, non-misleading promotional speech as proof of the supposed use” of the gadget.  The trial court docket refused to provide such an instruction.  The First Circuit upheld that refusal, reasoning that the Supreme Court docket permits use of protected (i.e. truthful) speech as proof of parts of against the law.  Use of truthful promotion right here (the misdemeanors for which the defendants had been convicted had been strict legal responsibility) was not de facto criminalization of protected speech.  The defendants relied on the Second Circuit’s determination in Caronia (we might have performed the identical, and the Facteau court docket stated that the reliance on Caronia was “comprehensible”).  However the Facteau court docket distinguished Caronia, as a result of in Caronia the bulk “was not persuaded that the federal government’s use of speech was restricted to evidentiary functions in that case.”  Furthermore, Caronia concerned a lowly gross sales consultant, “whose sole function was to make promotional statements in regards to the product.”  In different phrases, the gist of the Caronia case actually does appear to have been based mostly on protected speech.  Against this, Facteau concerned medical gadget company executives, and the file contained appreciable non-speech proof (inside company paperwork, regulatory historical past, gross sales rep coaching and expertise, surgeon coaching).  The jury may fairly have discovered this proof of conduct to represent the deliberate creation of a medical gadget that was designed for under off-label use versus the “supposed use” acknowledged in its part 510(ok) submission.  (Regardless of the refrain of criticism of latest Congressional testimony by a trio of tone-deaf faculty presidents, there actually is a legitimate, if generally troublesome, distinction between speech and conduct.)  Additionally, the crime at challenge in Facteau was advertising with out correct section510(ok) clearance, not for insufficient instructions to be used, which was at challenge in Caronia and is extra intertwined with speech.  Thus, the First Circuit concluded that the defendants in Facteau weren’t convicted solely, and even primarily, based mostly on protected speech.  

The defendants in Facteau additionally relied on two FDA steering paperwork that, they argued, created a protected harbor coverage that burdened speech excluded from the protected harbor by subjecting solely such “disfavored” speech to the peril of getting used as proof of supposed use.  That’s, the defendants argued that the FDA’s protected harbor was content-based discrimination that might not stand up to strict scrutiny.  The First Circuit disagreed with the defendants’ argument.  The FDA’s protected harbor for off label speech didn’t discriminate based mostly on conduct and lowered quite than elevated speech associated restrictions. At most, the protected harbor put sellers of medical merchandise “on discover about which of their statements the federal government deems most probative of that product’s supposed use.”  May such “discover” have a chilling impact?  Sure, in fact. However the First Circuit noticed such chilling as one of many “incidental results” of regulation of non-speech conduct.     

The defendants argued that the decrease court docket erred by not instructing the jury that proof of intent might be gleaned solely from exterior promotional statements.  The First Circuit rejected the premise of the protection argument. Labeling and promotions are actually useful in ascertaining supposed use, however there is no such thing as a purpose to deem them the one admissible proof. 

Maybe extra to the purpose was the defendants’ argument that the notion of “supposed use” is unconstitutionally imprecise.  However the First Circuit held that the prosecution on this case couldn’t be imprecise, because the forwards and backwards between the corporate and the FDA, in addition to the historical past of product growth and advertising efforts made it fairly clear that the corporate supposed the product for use for supply of the steroid, not merely as a spacer with saline as set forth within the part 510(ok) clearance.  The First Circuit was extra within the precise file within the case, not attention-grabbing and intelligent abstractions:  “No matter indeterminacy there could be about how a lot and what sorts of proof could be enough to show a brand new supposed use in a detailed case, appellants can not depend on that hypothetical indeterminacy to make a vagueness declare right here.”  The defendants additionally complained of lack of truthful warning, based mostly on the federal government’s “interpretive pivot” in “increasing its definition of supposed use to account for the truth that post-Caronia it could be tougher to hold a conviction based mostly on promotional statements alone.”  Now we have plenty of sympathy for the protection place on this level.  Industrial speech doctrine, significantly its utility to truthful statements relating to off-label use of prescription merchandise, has advanced, wandered, zigged and zagged.  It has produced uncertainty.  However the Facteau court docket primarily stated that uncertainty is inevitable within the authorized world, so cease whinging.  (We’ll by no means cease whinging about doctrinal inconsistency and uncertainty.  However it’s straightforward for us; we’re not going through a felony conviction or presentence report.)

As we famous in our earlier blogposts, there have been different arguments raised by the defendants (equivalent to sufficiency of the proof, which is nearly all the time a stone chilly loser), and people arguments may maintain vital curiosity for felony legislation practitioners, as we as soon as had been, however they aren’t practically as attention-grabbing for drug and gadget legislation drudges.