Presenting Risk Information in Prescription Drug and Medical Device Promotion

Administrative draft guidance, not enacted legislation. This captured publisher edition preserves the listed document and attachments; later developments are not independently consolidated.

Guidance for Industry
Presenting Risk Information in
Prescription Drug and Medical
Device Promotion
DRAFT GUIDANCE
This guidance document is being distributed for comment purposes only.
Comments and suggestions regarding this draft document should be submitted within 90 days of
publication in the Federal Register of the notice announcing the availability of the draft
guidance. Submit comments to the Division of Dockets Management (HFA-305), Food and Drug
Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. All comments should be
identified with the docket number listed in the notice of availability that publishes in the Federal
Register.
For questions regarding this draft document contact (CDER) Kristin Davis at 301-796-1200,
(CBER) Ele Ibarra-Pratt at 301-827-3028, (CVM) Martine Hartogensis at 240-453-6833, or
(CDRH) Ann Simoneau at 240-276-0100.
U.S. Department of Health and Human Services
Food and Drug Administration
Center for Drug Evaluation and Research (CDER)
Center for Biologics Evaluation and Research (CBER)
Center for Veterinary Medicine (CVM)
Center for Devices and Radiological Health (CDRH)
May 2009

Guidance for Industry
Presenting Risk Information in
Prescription Drug and Medical
Device Promotion
Additional copies are available from:
Office of Communication, Training and
Manufacturers Assistance, HFM-40
Center for Biologics Evaluation and Research
Food and Drug Administration
1401 Rockville Pike, Rockville, MD 20852-1448
http://www.fda.gov/cber/guidelines.htm.
(Tel) at 800-835-4709 or 301-827-1800
Office of Training and Communication
Division of Drug Information, HFD-240
Center for Drug Evaluation and Research
Food and Drug Administration
5600 Fishers Lane
Rockville, MD 20857
(Tel) 301-827-4573
http://www.fda.gov/cder/guidance/index.htm
Office of Communication, Education and Radiological
Programs
Division of Small Manufacturers, International and
Consumer Assistance (HFZ-220)
Center for Devices and Radiological Health
Food and Drug Administration
1350 Piccard Drive
Rockville, MD 20850-4307 U.S.A.
http://www.fda.gov/cdrh/ggpmain.html
Email: dsmica@cdrh.fda.gov
Fax: 240.276.3151
(Tel) 800-638-2041 or 240-276-3150
*
Communications Staff, HFV-12
Center for Veterinary Medicine
Food and Drug Administration
7500 Standish Place,
Rockville, MD 20855
(Tel) 301-594-1755
http://www.fda.gov/cvm/guidance/guidance.html
U.S. Department of Health and Human Services
Food and Drug Administration
Center for Drug Evaluation and Research (CDER)
Center for Biologics Evaluation and Research (CBER)
Center for Veterinary Medicine (CVM)
Center for Devices and Radiological Health (CDRH)
May 2009

Contains Nonbinding Recommendations
Draft — Not for Implementation
TABLE OF CONTENTS
I. 	INTRODUCTION............................................................................................................................ 1
II. 	BACKGROUND............................................................................................................................... 2
A. 	LEGAL OVERVIEW ...................................................................................................................... 3
B. 	POLICY OVERVIEW..................................................................................................................... 4
III. 	FACTORS CONSIDERED IN THE REVIEW OF RISK COMMUNICATION ................... 6
A. 	GENERAL CONSIDERATIONS .................................................................................................. 7
1. Consistent Use of Language .............................................................................................................. 7
2. Use of Signals ..................................................................................................................................... 7
3. Framing Risk Information.................................................................................................................. 8
4. Hierarchy of Risk Information ........................................................................................................... 9
B. 	CONSIDERATIONS OF CONTENT.......................................................................................... 10
1. Quantity ............................................................................................................................................ 10
2. Materiality and Comprehensiveness................................................................................................ 11
C. 	CONSIDERATIONS OF FORMAT............................................................................................ 14
1. Print Promotion................................................................................................................................ 15
2. Non-Print Promotion........................................................................................................................ 18
IV. 	CONCLUSION............................................................................................................................... 21
ATTACHMENT: STATUTORY AND REGULATORY REQUIREMENTS FOR LABELING
AND ADVERTISING ................................................................................................................................. 22

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1 	Guidance for Industry
2 	Presenting Risk Information in Prescription Drug and Medical
3 	Device Promotion
4
5
6
7 	This draft guidance, when finalized, will represent the Food and Drug Administration’s (FDA’s) current
8 	thinking on this topic. It does not create or confer any rights for or on any person and does not operate to
9 	bind FDA or the public. You can use an alternative approach if the approach satisfies the requirements of
10 	the applicable statutes and regulations. If you want to discuss an alternative approach, contact the FDA
11 	staff responsible for implementing this guidance. If you cannot identify the appropriate FDA staff, call
12 	the appropriate number listed on the title page of this guidance.
13
14
15
16 	I. 	INTRODUCTION
17
18 	This draft guidance describes factors FDA considers when evaluating advertisements (ads) and
19 	promotional labeling for prescription drugs,1 ads for restricted medical devices, 2 and promotional labeling
20 	for all medical devices for their compliance with the Federal Food, Drug, and Cosmetic Act (the FD&C
21 	Act or the Act) and relevant regulations.3 The draft guidance discusses factors that are relevant to the
22 	disclosure of risk information and provides numerous examples to illustrate FDA’s thinking on these
23 	factors. This guidance responds to stakeholder requests for specific guidance on how FDA evaluates
24 	prescription drug and medical device promotional pieces to determine whether they adequately present
25 	risk information. The recommendations contained in this draft guidance apply to promotional materials
26 	directed to both consumers and healthcare professionals.
27
28
1 This draft guidance does not address over-the-counter (OTC) drug promotional labeling, which FDA also
regulates. FDA encourages all manufacturers to ensure that their promotional labeling is truthful and non-
misleading. FDA recognizes that the marketing status of animal drugs may vary, depending upon the intended
species. For example, several anthelmintics on the market are available only by prescription for dogs and cats, yet
very similar products are available OTC for horses and food animals. OTC drugs intended for food animals, in
particular, may carry significant risks that may affect not only the intended food animal, but also other animal
species and humans. OTC promotional labeling for animal drugs should convey the serious risks associated with
use of the products, especially those affecting the public health.
2 Devices may become restricted, either by regulation issued under section 520(e) of the Act (21 U.S.C. 360j(e), or
by order approving an application for premarket approval (PMA), pursuant to section 515(d)(1)(B)(ii) (21 U.S.C.
360e(d)(1)(B)(ii)).
3 This draft guidance also does not apply to those reminder promotions (labeling or advertising that calls attention to
the name of a drug or device but does not include indications, dosage recommendations, or other information) that
are exempted by regulation from the requirements under the FD&C Act for the disclosure of risk information. See
21 CFR 200.200, 201.100(f), 201.105(d)(2), 202.1(e)(2)(i), 801.109(d). But see 21 U.S.C. 352(r) (requiring certain
risk information in all restricted device advertisements).
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29 	Although this draft guidance focuses on the presentation of risk information in prescription drug and
30 	medical device promotion, the factors relating to effective communication outlined below are also
31 	applicable to the presentation of benefit information in promotion. Indeed, when FDA evaluates
32 	promotional pieces for compliance with the Act and relevant regulations, it determines whether claims
33 	about both risk and benefit of the product are accurate and non-misleading, and it also looks at whether
34 	risks and benefits are presented in a comparably prominent manner. Thus, considerations involving the
35 	content and format of benefit information are an inherent part of FDA’s evaluation of risk presentations in
36 	promotional pieces. FDA recommends that companies take the factors outlined in this document into
37 	account when developing both risk and benefit presentations in their promotional pieces, as the public
38 	health is best served when risk and effectiveness information about drug and device products is clearly
39 	and accurately communicated.
40
41 	FDA’s guidance documents, including this draft guidance, do not establish legally enforceable
42 	responsibilities. Instead, guidances describe FDA’s current thinking on a topic and should be viewed
43 	only as recommendations, unless specific regulatory or statutory requirements are cited. The use of the
44 	word should in Agency guidances means that something is suggested or recommended, but not required.
45
46
47 	II. 	BACKGROUND
48
49 	The regulation of prescription drug and medical device promotion to healthcare professionals and
50 	consumers is a broad and complex topic.4 This document addresses one key aspect of this topic – the
51 	presentation of risk information. FDA believes it is critically important to disclose risk information in
52 	prescription drug and medical device promotion appropriately and effectively to healthcare professionals
53 	and consumers.5 This information helps consumers know whether drugs or devices may be appropriate
54 	for them as well as what they should tell their healthcare professionals about before taking or using or
55 	while taking or using a product. It also lets consumers know what risks they might experience and what
56 	steps they need to take for safety reasons (e.g., no driving) because of taking or using a product.
57 	Appropriate risk disclosures help healthcare professionals by giving them some of the information they
58 	need to know about the product that will enable them to safely use or prescribe it. Recently published
59 	industry guidelines encourage manufacturers to develop prescription medicine promotion that is
4 Although beyond the scope of this document, the complexity of the topic can be demonstrated by past studies that
have shown potential positive and negative effects of direct-to-consumer (DTC) advertising for prescription drugs.
For example, FDA research suggests that DTC advertising seems to increase awareness of conditions and
treatments, to motivate questions for the healthcare provider, and to help patients ask better questions. Yet this
research also suggests that almost half of physicians feel some pressure to prescribe as a result of DTC advertising,
and patients and physicians report a belief that these ads overstate the drug product’s efficacy and do not present a
fair balance of benefit and risk information. For the complete study results, see K. Aikin, J. Swasy & A. Braman,
Patient and Physician Attitudes and Behaviors Associated With DTC Promotion of Prescription Drugs – Summary
of FDA Survey Research Results, Final Report, November 19, 2004, available at:
http://www.fda.gov/cder/ddmac/Final%20Report/FRfinal111904.pdf.
5 Effectively disclosing risk information also requires a consideration of whether an advertisement or promotional
material over warns. For example, a drug advertisement that includes a listing of side effects that are not included in
the drug's approved labeling may lead to under-emphasis of the most important and serious risks. FDA takes care to
ensure that important risk information is included in the drug's approved labeling, and sponsors have an obligation to
update their labeling with appropriate new safety information. 21 CFR 201.57(c)(6); 201.80(e). Nothing in this
guidance should be construed as recommending that the sponsor of a drug include in advertising or promotional
materials risk information not in the product's approved labeling or appropriate for inclusion in the labeling. See 73
Fed. Reg. 2848, 2851 (January 16, 2008).
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60 	“designed to achieve a balanced presentation of both the benefits and the risks associated with the
61 	advertised” product.6
62
63 	However, omission or minimization of risk information is the most frequent violation of the regulations
64 	cited in advertising and promotion enforcement letters sent to sponsors, and illustrative research in one of
65 	the areas this guidance covers, direct-to-consumer prescription drug advertising, has shown that 60
66 	percent of patients believe ads directed at them do not provide enough information about risks, 60 percent
67 	of physicians believe that patients have little or no understanding from these ads about what the possible
68 	risks and negative effects of the products are, and 72 percent of physicians believe that patients have little
69 	or no understanding from these ads about who should not use the product.7
70
71 	FDA is issuing this draft guidance to aid sponsors in effectively communicating risk information in their
72 	promotion to both healthcare professionals and consumers. This draft guidance describes how FDA
73 	reviews prescription drug and medical device promotional pieces to determine whether they adequately
74 	present risk information. The document begins with some background information, including a brief
75 	overview of legal requirements and a discussion of policy considerations related to drug and device
76 	promotional materials. The draft guidance then describes factors FDA considers when reviewing risk
77 	communication in promotional materials. Because the principles within this guidance are based on
78 	universal concepts of communication and understanding of risk information, the guidance will address
79 	promotion aimed at both lay consumer and healthcare professional audiences.
80
81 	A. 	LEGAL OVERVIEW
82
83 	Under the FD&C Act and FDA's implementing regulations, promotional pieces (such as promotional
84 	labeling for drugs and devices and advertisements for prescription drugs and restricted devices) making
85 	claims about a product are deemed misleading if they fail to disclose certain information about the
86 	product's risks.8 Generally, to comply with the FD&C Act and FDA’s implementing regulations, such
87 	promotional pieces:9
88
89 	— Cannot be false or misleading in any particular10
90 	— Must reveal material facts about the product being promoted, including facts about the
91 	consequences that can result from use of the product as suggested in the promotional piece11
6 PhRMA, PhRMA Guiding Principles Direct to Consumer Advertisements About Prescription Medicines, Principle
11, November 2005, available at: http://www.phrma.org/files/DTCGuidingprinciples.pdf.
7 K. Aikin, J. Swasy & A. Braman, Patient and Physician Attitudes and Behaviors Associated With DTC Promotion
of Prescription Drugs – Summary of FDA Survey Research Results, Final Report, November 19, 2004, available at:
http://www.fda.gov/cder/ddmac/Final%20Report/FRfinal111904.pdf.
8 The relevant statutory provisions and regulations are discussed in more detail in the Attachment to this guidance.
9 The terms promotional piece, promotional materials, and promotional communications are used in this guidance to
refer generally to both advertising and promotional labeling, regardless of format. Promotional materials include,
among others, television ads, brochures, booklets, detailing pieces, internet web sites, print ads, exhibits, and sound
recordings or radio ads. As noted in the introduction, this guidance applies to all types of promotion for prescription
drugs, advertisements for restricted devices and promotional labeling for all devices.
10 Drugs and devices are misbranded under the Act if their labeling is false or misleading in any particular (21
U.S.C. 352(a)). Similarly, prescription drugs and restricted devices are misbranded if their advertising is false or
misleading in any particular (21 U.S.C. 352(n) & (q)(1); 21 CFR 202.1(e)(5)(i)).
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92 	and
93 	— Should present information about effectiveness and information about risk in a balanced
94 	manner12
95
96 	This draft guidance document describes factors FDA considers when evaluating risk disclosure in
97 	prescription drug and medical device promotional materials to determine whether these materials comply
98 	with the statutory and regulatory requirements. The draft guidance also makes recommendations about
99 	how manufacturers can develop the content and format of promotional communications to comply with
100 	these requirements. The examples and recommendations provided are intended to provide guidance and
101 	illustrate possible approaches; manufacturers are free to use alternative approaches if these approaches
102 	satisfy the requirements of the statute and regulations. Unless otherwise specified in this draft guidance,
103 	the principles set forth below apply to all promotional pieces, regardless of the medium used or the target
104 	audience.
105
106 	B. 	POLICY OVERVIEW
107
108 	Section III of this guidance highlights several factors, including those related to content and format, that
109 	FDA uses to evaluate the risk communication in a promotional piece. We recommend that manufacturers
110 	consider these factors when trying to achieve effective risk communication. It is important to emphasize
111 	that when FDA evaluates the risk communication in a promotional piece, FDA looks not just at specific
112 	risk-related statements, but at the net impression – i.e., the message communicated by all elements of the
113 	piece as a whole. The purpose of the evaluation is to determine whether the piece as a whole conveys an
114 	accurate and non-misleading impression of the benefits and risks of the promoted product. Manufacturers
115 	should therefore focus not just on individual claims or presentations, but on the promotional piece as a
116 	whole.13 A promotional communication that conveys a deceptive net impression of the product could be
117 	misleading, even if specific individual claims or presentations are not misleading.
118
119 	FDA’s consideration of the net impression of risk information is based on well-developed social science
120 	principles supported by decades of scientific research14 and is consistent with the approach of other
121 	agencies and organizations. For example, the Federal Trade Commission (FTC) uses the interpretation of
122 	the net impression of the piece to determine whether a promotional piece is likely to mislead a
123 	consumer.15 Pharmaceutical industry members have also conducted social science research showing that,
124 	when evaluating a promotional piece, the net impression conveyed by the piece as a whole is an important
125 	element to consider, independent of individual statements within the piece.
11 21 U.S.C. 321(n); 21 CFR 1.21 & 202.1(e)(5)(iii).
12 See 21 CFR 202.1(e)(5)(ii).
13 Manufacturers should note that, although this guidance focuses on risk disclosures in promotional pieces, any
claims in a promotional piece that are misleading, whether risk-related or not, can cause the product being promoted
to become misbranded ( 21 U.S.C. 352(a), (n) & (q)(1); 21 CFR 202.1(e)(5)(i)).
14 For reviews of this field, see Kimble, G.A. (1985) The psychology of learning enters its second century. In
Hammonds, B.L. (Ed.), Psychology and learning. Washington, DC: American Psychological Association (pp. 5-47)
and Mayer, R.E. (2003) Memory and information processes. In Reynolds, W.M., & Miller, G.E. (Eds.), Handbook
of Psychology: Educational Psychology, 7. New York: John Wiley & Sons, Inc. (pp. 47-57).
15 See Federal Trade Commission, FTC Policy Statement on Deception, (Oct. 14, 1983), appended to FTC v.
Cliffdale Associates, Inc., et al., 103 F.T.C. 110, 170 (1984) (hereinafter “FTC Policy Statement on Deception” with
page references to 103 F.T.C. 110).
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126
127 	Section III of the guidance contains examples of how various aspects of content and format can contribute
128 	to a misleading net impression in promotional pieces. The following two examples also illustrate this.
129
130 	Example 1: A broadcast television ad for a cholesterol-lowering drug contains a factually
131 	accurate audio risk statement that discloses the drug’s major side effects and contraindications.
132 	This audio presentation is accompanied by quick scene changes showing comforting visual
133 	images of patients benefiting from the drug. It is also accompanied by loud, upbeat music. In
134 	this case, the audio disclosure may not adequately communicate risks because of the
135 	accompanying discordant visuals and distracting music.
136
137 	Example 2: A one-page prescription drug ad for an arthritis drug, run in a medical journal,
138 	prominently presents the following headline claims in large bolded font and with abundant
139 	surrounding white space:
140 	• 	Benefits! DrugX is proven safe and effective for the relief of arthritis pain and
141 	stiffness,
142 	• 	Difference! DrugX’s unique gel formulation is convenient and easy to use, and
143 	• 	Reason to Believe! Drug X is the most frequently prescribed arthritis drug in the
144 	United States
145 	The bottom of the page contains an inconspicuous statement in small, non-bolded font and
146 	without surrounding white space: “Like all arthritis medications, Drug X has been associated
147 	with a risk of serious infection.” The emphasis on benefit information in this piece – in terms of
148 	the way the information is formatted and framed – overwhelms the risk information and may
149 	cause readers to receive an erroneous impression that the drug is safer than it has proven to be,
150 	even though the statements themselves may be factually accurate.
151
152 	Using the factors explained in Part III of this draft guidance, trained professionals at FDA with expertise
153 	in areas including communication, drug information, medicine and law, apply these factors and evaluate
154 	claims in promotional pieces from the perspective of a reasonable consumer. As FDA has stated,16 the
155 	agency believes that the reasonable consumer standard is the appropriate standard to use in determining
156 	whether a claim in the labeling of a dietary supplement or conventional food is misleading. The agency
157 	confirms that the reasonable consumer standard will be used to evaluate communications covered by this
158 	guidance document. The reasonable consumer standard used by FDA in evaluating promotional
159 	materials is similar to the FTC standard:
160
161 	[W]e examine the practice from the perspective of a consumer acting reasonably in the
162 	circumstances. If the representation or practice affects or is directed primarily to a
163 	particular group, the Commission examines reasonableness from the perspective of that
17
164 	group.
165
16 Guidance for Industry: Qualified Health Claims in the Labeling of Conventional Foods and Dietary Supplements
(Dec. 2002) (replaced by Guidance for Industry and FDA: Interim Procedures for Qualified Health Claims in the
Labeling of Conventional Food and Human Dietary Supplements (July 2003)); see 70 Fed. Reg. 824 (Jan. 5, 2005)
(noting that, although the Guidance for Industry on Qualified Health Claims in Labeling of Conventional Foods and
Dietary Supplements (Dec. 2002) “has been ‘replaced’ by subsequent guidance, the agency has not abandoned the
position in the 2002 guidance regarding reasonable consumer standard”).
17 See FTC Policy Statement on Deception at 170.
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166 	This standard does not preclude multiple interpretations of a claim, as long as they are reasonable. As the
167 	FTC’s Policy Statement provides:
168
169 	To be considered reasonable, the interpretation or reaction does not have to be the only
170 	one. When a seller’s representation conveys more than one meaning to reasonable
171 	consumers, one of which is false, the seller is liable for the misleading interpretation.18
172
173 	In applying the reasonable consumer standard, FDA, like FTC, takes into account the different levels of
174 	expertise of lay consumers and healthcare professionals. Due to their training and experience, healthcare
175 	professionals develop a level of knowledge related to scientific concepts and medical conditions and
176 	products that lay consumers do not possess. FDA takes this difference in knowledge and experience into
177 	account when assessing promotional materials directed at healthcare professionals versus those directed at
178 	lay audiences. However, research has shown that experts (in this case, healthcare professionals) are
179 	subject to the same cognitive biases and processing limitations as non-experts.19
180
181 	Cognitive science research has demonstrated that all people, regardless of expertise, are only able to think
182 	through and process a limited amount of information at one time.20 However, our ability to process
183 	information can be greatly improved by considering and controlling for the factors that affect attention
184 	and comprehension. This guidance discusses those factors, how we apply them to our review of
185 	promotional materials, and what manufacturers can do to ensure that their materials comply with the
186 	regulations.
187
188
189 	III. 	FACTORS CONSIDERED IN THE REVIEW OF RISK COMMUNICATION
190
191 	FDA relies on a vast scientific body of knowledge regarding human cognition in assessing which factors
192 	to consider in evaluating promotional pieces and making regulatory decisions about the presentation of
193 	risk information. The following sections highlight factors that FDA considers when determining whether
194 	risk information is communicated in a fashion consistent with the regulations.
195
18 Id. at 177.
19 Although physicians generally do not believe that they are influenced by advertising, (Spiller & Wymer, 2001),
research has shown that physicians are influenced by promotional activities (e.g., advertising: Avorn et al., 1982;
sales representatives: Gonul et al., 2001). Avorn, J., Chen, M. & Hartley, R. (1982) Scientific versus commercial
sources of influence on the prescribing behavior of physicians. American Journal of Medicine, 73, 4-8. Gonul, F.F.,
Carter, F., Petrova, E., & Srinivasan, K. (2001) Promotion of prescription drugs and its impact on physicians’ choice
behavior. Journal of Marketing, 65, 79-90. Spiller, L.D., & Wymer, W.W. (2001) Physicians’ perceptions and uses
of commercial drug information sources: An examination of pharmaceutical marketing to physicians. Health
Marketing Quarterly, 19, 91-106.
20 See, e.g., Lavie, N. (2001) Capacity limits in selective attention: Behavioral evidence and implications for neural
activity. In Braun, J., Koch, C., et al. (Eds.), Visual attention and cortical circuits. Cambridge, MA: The MIT
Press (pp. 49-68); Miller, G.A. (1994) The magical number seven, plus or minus two: Some limits on our capacity
for processing information. Reprinted in Gutfreund, H., & Toulouse, G. (Eds.), Biology and computation: A
physicist’s choice. River Edge, NJ: World Scientific Publishing Co. (pp. 207-233); Shapiro, K. (Ed.) (2001) The
limits of attention: Temporal constraints in human information processing. London: Oxford University Press.
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196 	A. 	GENERAL CONSIDERATIONS
197
198 	This section explores some important factors that relate to both the content and the format of a
199 	promotional piece. FDA will consider the use of language and signals and how information is framed and
200 	ordered.
201
202 	1. 	Consistent Use of Language Appropriate for Target Audience
203
204 	Both language used to communicate benefits and language used to communicate risks should be
205 	comprehensible to the same audience for a piece to be considered accurate and non-misleading. Thus,
206 	promotional materials directed to professionals can reasonably describe benefits and risks in medical
207 	language, but promotional materials directed to consumers should convey benefits and risks in language
208 	understandable to consumers.21
209
210 	Example 3: A consumer-directed ad for a drug that presents benefit claims in consumer friendly
211 	language should mention a risk of “fainting,” not “syncope.”
212
213 	With respect to consumer-directed materials, FDA encourages manufacturers to present both benefit and
214 	risk information in clear, understandable, and non-technical language for consumer audiences.22
215
216 	2. 	Use of Signals
217
218 	Signaling is an important component of information communication.23 In written materials, signaling has
219 	been defined as the use of “writing devices designed to emphasize aspects of a text’s structure or content
220 	without altering the information in the text.” 24 Headlines and subheads are examples of commonly used
221 	signals.25 Depending on the circumstance, “accurate information in the text may not remedy a false
222 	headline [or signal] because reasonable consumers may only glance at the headline” and skip the
21 See Root, J., & Stableford, S. (1999) Easy-to-read consumer communications: A missing link in Medicaid
managed care. Journal of Health Politics, Policy, & Law, 24, 1-26.
22 Although not a true measure of “understandability,” text reading level, often expressed as “grade level,” is one
way to assess text difficulty. Text that scores at a higher grade level (e.g., 12 th grade) is considered more complex
than text scoring at a lower grade level (e.g., 8 th grade). Several validated reading level measures are available to
provide an approximate measure of text complexity. See, e.g., Kincaid, J.P., Fishburne, R., Rogers, R.L., Chissom,
B.S. (1975) Derivation of New Readability Formulas (Automated Reliability Index, Fog Count, and Flesch Reading
Ease Formula) for Navy Enlisted Personnel. Research Branch Report 8-75. Memphis: Naval Air Station;
McLaughlin, G.H. (1969) SMOG grading: A new readability formula. Journal of Reading, 12, 639-646; Mosenthal,
P.B. (1998) A new measure of assessing document complexity: The PMOSE/IKIRSCH document readability
formula. Journal of Adolescent and Adult Literacy, 41, 620-638. We encourage manufacturers to test text
comprehensibility as well.
23 Loman, N.L., & Mayer, R.E. (1983) Signaling techniques that increase the understandability of expository prose.
Journal of Educational Psychology, 75, 402-412; Meyer, B.J.F. (2003) Text coherence and readability. Topics in
Language Disorders, 23, 204-224; Spyridakis, J.H., & Standal, T.C. (1987) Signals in expository prose: Effects on
reading comprehension. Reading Research Quarterly, 22, 285-298.
24 Lorch, R.F., Lorch, E.P., & Inman, W.E. (1993) Effects of signaling structure on text recall. Journal of
Educational Psychology, 85, 281-290, p. 281.
25 Hyona, J., & Lorch, R.F. (2004) Effects of topic headings on text processing: Evidence from adult readers’ eye
fixation patterns. Learning and Instruction, 14, 131-152.
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223 	remainder of the text.26 Signals are also used in broadcast situations, such as when an announcer draws
224 	attention to different items of information, when a word on the screen identifies a new topic, or when
225 	headlines emphasize some messages but not others.
226
227 	When reviewing promotional materials, FDA looks to see if the use of signals is consistent across benefit
228 	and risk information, so that the materials provide accurate and non-misleading impressions of a drug or
229 	device.
230
231 	Example 4: If a piece contains headlines that signal benefit information, (e.g., “Drug X Provides
232 	Highly Effective Control”), some sort of headline should also signal risk information (e.g., “Side
233 	Effects for Drug X”).
234
235 	However, the mere presence of similar signals for both benefit and risk information is not necessarily
236 	sufficient to make a piece accurate and non-misleading. The content of the signals is also important.
237 	Certain headlines may frame (see next section) subsequent risk information in ways that emphasize or
238 	minimize its importance.
239
240 	Example 5: The headline “Important Risk Information about Device X” is preferable to
241 	“Important Information about Device X” because the former headline indicates what type of
242 	information follows. Similarly, “Common Side Effects Seen with Drug X,” is preferable to
243 	“Other Information about Drug X.” Specific and clear signals are preferable because they are
244 	more effective than vague or abstract terms.
245
246 	Presenting risk information with no signal, or beginning the presentation of risk information with
247 	unrelated information (e.g. presenting risk information in a paragraph that begins with information on
248 	indication or dosing) can also minimize the risks of the product and mislead the audience. For example,
249 	the headlines in the following example convey additional benefit information, potentially misleading the
250 	audience about the overall risk-benefit profile of the product.
251
252 	Example 6: Placing risk information under headlines such as “Now Approved for Epilepsy” or
253 	“Safe Enough for Children Under 5” minimizes the risk information that follows, particularly if
254 	individuals only look at the headlines. Instead, headlines preceding risk presentations should
255 	signal that a risk presentation follows, for example, “Important Risk Information About Drug X.”
256
257 	In videos, broadcast ads, and other promotional pieces with audio components, a change of announcer or
258 	a statement in the audio portion of the piece to signal to the audience that risk information follows can aid
259 	effective communication. However, manufacturers should consider comparable voice characteristics, as
260 	discussed in Section III.C.2. Risk information may also be signaled graphically or visually. Similar to
261 	print pieces, specific and straightforward audio signals are most likely to adequately convey risk
262 	information.
263
264 	3. 	Framing Risk Information
265
266 	FDA evaluates how risk information is framed because framing can affect the presentation of risks and
267 	benefits in a promotional piece. Framing commonly refers to how a particular piece of information is
268 	stated or conveyed, such as by emphasizing either the positive or negative aspects of the information or
269 	by presenting the information in vague versus specific terms. Research consistently shows that framing
26 FTC Policy Statement on Deception at 182.
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270 	the same information in different ways can change the way audience members respond to that
271 	information.27 Thus, the way information is phrased can significantly influence the message the audience
272 	receives from a promotional piece.
273
274 	Framing risk information in non-specific terms can undermine the effective communication of that
275 	information to the audience. Risk information should be presented in the same terms or with the same
276 	degree of specificity as benefit information. For example, if a promotional piece refers to the product by
277 	name in presenting efficacy information, it should refer to the product by name in presenting risk
278 	information, rather than by referring to the product’s device or drug class.
279
280 	Example 7: If the benefit information refers to the brand name, “Drug X,” then “Common side
281 	effects associated with Drug X” would be preferable to “Common side effects associated with
282 	[the generic name].”
283
284 	Moreover, within the risk information presentation, phrases such as “Like all medicines, Drug X has some
285 	side effects,” may have the effect of minimizing the risks that follow. Framing risk information in a way
286 	that minimizes the severity of a risk event may also cause a promotional piece to be considered false or
287 	misleading.
288
289 	Example 8: If a drug’s package insert contains a boxed warning about the risk of life-threatening
290 	fevers associated with its use and reports that 55 percent of patients taking the drug experience
291 	dizziness, a statement such as “Adverse events associated with drug X include fevers. Some
292 	patients experienced dizziness” misleadingly describes the risk profile of the drug by failing to
293 	convey the seriousness of the fevers and the frequency of the dizziness. Statements like “Life-
294 	threatening fevers have been reported with the use of Drug X” and “More than half of patients
295 	taking Drug X experienced dizziness” would convey the seriousness and frequency of the two
296 	risks appropriately.
297
298 	In addition, the risks conveyed in the piece should be framed in a way that accurately reflects their nature.
299
300 	Example 9: A statement such as “continuation of therapy may necessitate certain monitoring” is
301 	too vague for a product that requires monthly blood tests to check for liver damage. This
302 	statement fails to convey the risk of liver damage and also misleadingly suggests that routine
303 	monitoring may not be necessary for some patients. A statement like “Monthly blood tests
304 	should be performed to check for liver damage” would accurately convey the type of monitoring
305 	needed and the risk involved.
306
307 	4. 	Hierarchy of Risk Information
308
309 	FDA considers the ordering of risks within a presentation an important factor in determining the risk
310 	profile conveyed by a piece, regardless of whether it is directed toward healthcare professionals or
27 See Armstrong, K., Schwartz, J.S., Fitzgerald, G., Putt, M., & Ubel, P.A. (2002) Effect of framing as gain versus
loss on understanding and hypothetical treatment choices: survival and mortality curves. Medical Decision Making,
22, 76-83; Dunegan, K.J. (1993) Framing, cognitive modes, and imagery theory: Toward an understanding of a glass
half full. Journal of Applied Psychology, 78, 491-503; Rothman, A.J., & Salovey, P. (1997) Shaping perceptions to
motivate healthy behavior: The role of message framing. Psychological Bulletin, 121, 3-19; Smith, S.M., & Petty,
R.E. (1996) Message framing and persuasion: A message processing analysis. Personality and Social Psychology
Bulletin, 22, 257-268; Tversky, A., & Kahneman, D. (1981) The framing of decisions and the psychology of choice.
Science, 211, 453-458.
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311 	consumers. As discussed in Section III.B.2 (below) and reflected in the format of the package insert for
312 	prescription drugs and medical devices, risks associated with a specific product are assigned a hierarchy
313 	of importance.
314
315 	Memory research consistently shows that, in an experimental setting, when people process an entire list or
316 	text, they are better able to recall items at the beginning and the end than items in the middle. 28
317 	Consequently, in a broadcast ad, where viewers do not have the opportunity to control the speed at which
318 	information is presented to help them to process it, the beginning or end, or both, should be reserved for
319 	the most important risk information. On the other hand, when reading a print promotional piece under
320 	normal circumstances, readers may lose interest toward the end of a lengthy paragraph, and it is not likely
321 	that the information at the end will be as well-comprehended as the information at the beginning. If a
322 	product’s most important risks are located in the middle of a list of less important risks, the important
323 	risks may not be effectively communicated. FDA therefore recommends that the most important risk
324 	information, including relevant warnings and contraindications, be placed or stated first, especially in
325 	print materials. As discussed in Section III.C.1 (below), manufacturers should also note, however, that
326 	risk information should not just be presented in one location in a piece, but should, like benefit
327 	information, appear as an integral part of the piece.
328
329 	FDA also considers the order in which risk information is presented to determine whether this ordering
330 	suggests that certain risks apply only to certain populations or only under certain conditions when this is
331 	not the case.
332
333 	Example 10: A statement in a broadcast ad that “Patients should not drink alcohol when taking
334 	Drug X. Common side effects are drowsiness and nausea” may suggest that these side effects
335 	occur only if alcohol is consumed when taking the drug. Instead, the sponsor should consider
336 	adding intervening information or changing the order of the presentation so that it is clear the side
337 	effects listed are not caused by drinking alcohol while taking the drug.
338
339 	B. 	CONSIDERATIONS OF CONTENT
340
341 	This section discusses how FDA evaluates the content of risk presentations in determining whether a
342 	promotional piece is accurate and non-misleading.
343
344 	1. 	Quantity
345
346 	One content factor FDA considers is the amount or quantity of information conveyed by a promotional
347 	piece. For example, a 30-second broadcast ad is likely to present less information than a 60-second
348 	broadcast ad. As the amount of benefit information conveyed increases, the amount of risk information
349 	conveyed should similarly increase.
350
351 	The quantity of information presented can affect the net impression of the piece. The amount of
352 	information presented is one component that, together with choice of words, color, graphics, voiceover,
353 	and other aspects of the piece, can affect cognitive load, the mental effort required to understand the
28 See Botvinik, M.M., & Plaut, D.C. (2006) Short-term memory for serial order: A recurrent neural network model.
Psychological Review, 113, 201-233; Capitani, E.; della Sala, S.; Logie, R.H.; & Spinnier, H. (1992) Recency,
primacy, and memory: Reappraising and standardizing the serial position curve. Cortex, 28, 315-342; Murdock,
B.B. (1962) The serial position effect of free recall. Journal of Experimental Psychology, 64, 482-488.
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354 	various components of information in the piece.29 If the benefit information is easily understood and
355 	maintained through repetition or other reinforcing techniques, and the risk information is not similarly
356 	reinforced, the net impression may not be appropriately balanced.
357
358 	To ensure comparable benefit and risk presentations, manufacturers should consider the space or time
359 	devoted to benefits and risks, the comprehensibility of the language used, and the information provided
360 	on benefits and risks. FDA will look to see that promotional communications allot sufficient time and
361 	space to convey the important benefits and risks of the product being promoted to ensure that, as a whole,
362 	the communication provides an accurate and non-misleading impression of the product.
363
364 	A promotional piece with several paragraphs of information regarding benefits differs from a piece
365 	consisting mainly of one-line benefit claims. The treatment of risk information in each piece should be
366 	comparable to the treatment of benefit information, including how it is conveyed.
367
368 	Promotional pieces do not have to convey an identical number of benefits and risks, and a given drug or
369 	device may have few or many risks.30 FDA considers these factors when determining the comparability
370 	of benefits and risks in a piece:
371
372 	— The number of statements about benefits and risks
373 	— The completeness and depth of detail given about benefits and risks
374 	— The amount of time (in both the audio and visual portions) devoted to benefits and risks in a
375 	video, audio, or broadcast communication
376 	— The amount of space devoted to benefits and risks in a print communication
377 	— The use of audio or visual components that enhance or distract from the presentation of risk
378 	or benefit information
379
380 	As stated in the Background and discussed above, FDA evaluates the net impression created by
381 	promotional communications. This evaluation includes considering the above factors as well as the
382 	differences in the inherent risks associated with various drugs or devices. Simply satisfying one of the
383 	above factors (e.g., devoting the same amount of time or space to risk and benefit information) will not
384 	necessarily make a promotional piece accurate and non-misleading. Furthermore, certain important risk
385 	information should be in all promotional pieces regardless of their length (see Section III.B.2 below).
386
387 	2. 	Materiality and Comprehensiveness
388
389 	Generally speaking, materiality is determined by the degree to which information is objectively
390 	important, relevant, or substantial to the target audience. A promotional piece that omits material
391 	information about a product’s risks could be considered misleading even if the piece devotes similar
392 	space or time to risk and effectiveness presentations.31
29 See Mayer, R.E., & Moreno, R. (2003) Nine ways to reduce cognitive load in multimedia learning. Educational
Psychologist, 38, 43-52; Pass, F., Renkl, A., & Sweller, J. (2004) Cognitive load theory: Instructional implications
of the interaction between information structures and cognitive architecture. Instructional Science, 32, 1-8.
30 If the drug or device being promoted is associated with a minimal number of risks, and all of these risks are
conveyed in a format that is comparably prominent to the presentation of benefit information, then the risk
presentation in such an ad or promotional labeling piece would be considered accurate, non-misleading and balanced
even if the ad presented several more benefit than risk claims.
31 21 U.S.C. 321(n); see also 21 CFR 1.21 & 202.1(e)(5)(iii). Please see the Attachment to this document for a full
description of the relevant requirements.
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393
394 	Material facts are those that would influence reasonable consumers (or healthcare professionals when
395 	they are the intended audience) about a product. Material facts include those that influence such people’s
396 	understanding of the following:
397
398 	— The relevant properties of a product
399 	— Whether or not the product is appropriate for them or their patients
400 	— Whether or not they are willing to accept the risks or burdens associated with using or
401 	prescribing a product
402
403 	Some drug and device risks are material regardless of the amount or type of benefit claims in a piece.
404 	The most serious risks set forth in a product’s labeling are generally material to any presentation of
405 	efficacy. A promotional piece that communicates a product’s benefits should similarly communicate the
406 	most serious risks involved in using the product. Similarly, the most frequently occurring risks would
407 	usually be material to consumers and healthcare professionals in promotion, particularly if a product is
408 	only associated with a small number of more serious risks, because of the likelihood that they will affect
409 	patients taking the drug or using the device.
410
411 	• 	Consideration of Target Audience
412
413 	FDA considers the target audience of a promotional piece to be critical in determining what risk
414 	information is material. FDA evaluates the promotion from the perspective of a reasonable member of
415 	the targeted population (e.g., consumers, specific patient populations, healthcare professionals). As is
416 	explored in more detail below (e.g., Examples 11 and 13), different information can be material to
417 	different audiences. For example, in a piece promoting use of a product in a selected class of patients,
418 	risks especially applicable to that selected class of patients are material (see “The Nature of Benefit
419 	Claims,” below).32
420
421 	Generally speaking, communications directed to healthcare professionals should convey the most critical
422 	information they need to know about the product to help them decide whether it is appropriate for their
423 	patients and to help enable them to safely use the product or counsel patients on the safe use of the
424 	product. Consumer-directed communications should generally convey the following:
425
426 	— What the drug or device is used for
427 	— Who should or should not take a drug or use a device
428 	— What can be expected from a drug or device
429 	— What patients should ask their healthcare professionals about a drug or device
430 	— What patients should tell their healthcare professionals about before or while taking a drug or
431 	using a device
432
433 	Example 11: A drug’s package insert includes a warning for healthcare professionals about dosing
434 	adjustments in patients with kidney disease. This information is material for healthcare professionals,
435 	both because of the seriousness indicated by its warning status and because of its relevance to safe
436 	prescribing. However, although this information is important to the safe use of the drug and should
437 	be considered by prescribers, it is not material to consumers, although the reasons for such care in
438 	dosing (e.g., the consequences of inappropriate dosing) could be.
439
32 See 21 CFR 202.1(e)(7)(x).
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440 	• 	Importance of Package Insert
441
442 	In determining the materiality of the risks associated with a drug or device, FDA refers to the product’s
443 	package insert. FDA is more likely to consider as important or material a product’s most serious or most
444 	frequently occurring risks than a product’s less serious or less commonly occurring risks.33 FDA
445 	characterizes the risks associated with a specific product along a hierarchy of importance reflected by
446 	placement in a risk-related section of the product’s package insert – traditionally , the Contraindications,
447 	Warnings or Hazards, Precautions, Adverse Reactions or Side Effects sections, as well as the
448 	Overdosage, and Drug Abuse and Dependence sections in the case of prescription drugs – and in the use
449 	of various means to emphasize certain risks, such as boxed warnings and bolded statements. For labeling
450 	that complies with the new formatting requirements in the recently finalized Physician Labeling Rule for
451 	prescription drugs,34 the risk-related sections include Boxed Warning, Contraindications, Warnings and
452 	Precautions, Adverse Reactions, Drug Interactions, Use in Specific Populations, Drug Abuse &
453 	Dependence, and Overdosage.
454
455 	For prescription drug physician labeling that follows the new requirements, the risks included in the
456 	Highlights section of labeling are the most important risks associated with the drug. For other labeling,
457 	contraindications and warnings or hazards are considered to contain the most serious and material risk
458 	information associated with a drug or device and convey information that must be understood before the
459 	product is prescribed or used. Contraindications and boxed warnings are generally considered the most
460 	important. Precautions also convey important risk information that can help healthcare professionals and
461 	patients use a drug or device more safely. These include ways to avoid adverse effects and information
462 	about important differences in individual response and, for drugs, about interactions with other drugs or
463 	food. Risks conveyed only in the adverse events or side effects section are generally less serious or less
464 	well-documented than those in the preceding three categories. They are often the most commonly
465 	experienced risks associated with a product, however, and they therefore may constitute important
466 	information for both healthcare professionals and consumers.
467
468 	• 	The Nature of Benefit Claims
469
470 	Promotional pieces should reveal risk information that is material in light of the specific benefit claims
471 	made in the piece.
472
473 	Example 12: If a piece claims convenience because the promoted drug is dosed once-weekly,
474 	information about risks directly related to the regimen’s convenience is material. Such risk
475 	information might include, for example, that inflammatory reactions such as swelling have been
476 	reported at the application site for a topical product, or that patients must restrict their activities
477 	for some time after taking an oral medication because of a risk of fainting.
33 As indicated above, the most serious risks set forth in a product’s labeling are generally material to any
presentation of efficacy. Frequently occurring, less serious risks (e.g., those reflected in Adverse Reactions) can be
material, particularly for a product that is not associated with serious risks, but these less serious risks may not be
material for a product that has many serious risks that need to be disclosed in promotion, or whose most frequently
occurring risks occur at a very low rate. In general, FDA believes that exhaustive lists of minor risks distract from
and make it difficult to comprehend and retain information on the more important risks. To this end, we have issued
a draft guidance for prescription drugs entitled Brief Summary Disclosing Risk Information in Consumer-Directed
Print Advertisements, which suggests approaches to communicating less, but better, information in consumer brief
summaries. Once finalized, this guidance will represent the Agency's thinking on this topic.
34 See 71 Fed. Reg. 3922 (Jan. 24, 2006). The rule became effective June 30, 2006.
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478
479 	Similarly, as stated above, for promotional pieces that promote a product’s benefits in a selected class of
480 	patients, the significant risks applicable to that class of patients are material. 35
481
482 	Example 13: If a Web site for a product approved to treat high blood pressure presents
483 	information about a product’s benefits in postmenopausal women, any risks specific to
484 	postmenopausal women are particularly material.
485
486 	• 	Accuracy and Comprehensiveness of Risk Information
487
488 	When it evaluates the content of a promotional piece’s risk information, FDA assesses the quality as well
489 	as the quantity of the information. Both consumer and professional audiences expect that certain
490 	information will be present in promotions for prescription drugs and medical devices. This expectation
491 	results from schemas,36 or mental frameworks, about these promotional pieces that have developed from
492 	previous exposures (i.e., preconceived expectations based on past experience). Consumers have
493 	preconceived ideas about the amount of scrutiny these ads undergo. Many believe FDA exercises tight
494 	regulatory control over the content of these ads and to some extent, believe that all ads have been pre-
495 	reviewed prior to airing.37 As a result, consumers are likely to expect that the most relevant risks have
496 	been included in the ad. Because people expect to see risk information, there is no reason for them to
497 	imagine that the product has important risks that have been omitted. Instead, the audience is likely to
498 	believe that all significant risks are included, especially if some risks are included. This missing risk
499 	information can have serious effects; it may cause consumers to fail to inform their healthcare
500 	professionals of important considerations, and healthcare professionals to prescribe inappropriately or
501 	even dangerously.
502
503 	Example 14: A product is associated with the rare but serious risk of a heart attack. FDA is likely
504 	to consider an ad misleading if it devotes a certain amount of time or space to the presentation of
505 	claims about the product’s efficacy in treating migraines and then devotes a similar amount of
506 	time or space to describing only the frequently occurring, least serious adverse events, or only
507 	one of several significant risks.
508
509 	Even though a similar quantity of risk and benefit information may be conveyed, a promotional piece that
510 	presents information on the benefits of the product but then communicates only its least serious risks, or
511 	an inadequate set of its serious risks, will not have conveyed an accurate understanding of the product’s
512 	relevant properties.
513
514 	C. 	CONSIDERATIONS OF FORMAT
515
516 	FDA also considers formatting factors when assessing whether a piece is false or misleading. Format
517 	includes the shape, size, and general layout of all portions of a print promotional piece, as well as the
35 See 21 CFR 202.1(e)(7)(x).
36 See Kardash, C.A.M., Royer, J.M., & Greene, B.A. (1988) Effects of schemata on both encoding and retrieval of
information from prose. Journal of Educational Psychology, 80, 324-329; Smith, E.E., & Swinney, D.A. (1992)
The role of schemas in reading text: A real-time examination. Discourse Processes, 15, 303-316.
37 See, e.g., K. Aikin, J. Swasy & A. Braman, Patient and Physician Attitudes and Behaviors Associated With DTC
Promotion of Prescription Drugs – Summary of FDA Survey Research Results, Final Report, November 19, 2004,
available at: http://www.fda.gov/cder/ddmac/Final%20Report/FRfinal111904.pdf; Prevention Magazine (2004) 5 th
Annual Survey: Consumer Reaction to DTC Advertising of Prescription Medicines. Emmaus, PA: Rodale.
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518 	general plan of organization, arrangement, and theme in non-print promotional pieces such as videos and
519 	broadcast ads.
520
521 	To process information, a person must first pay attention to it. Several factors contribute to whether
522 	people will pay attention to information. These factors also may help or hinder people’s understanding of
523 	information once it has drawn their attention. When evaluating whether a promotional piece
524 	appropriately communicates risk information, FDA considers several formatting factors.38 Because these
525 	factors apply to information processing in general, prescription drug and medical device manufacturers
526 	should keep them in mind when developing promotional pieces.
527
528 	As a general matter, risk and benefit information should be comparably noticeable or conspicuous in
529 	promotional pieces, and audiences should be able to read both risk and benefit information with similar
530 	ease (e.g., comparably legible and understandable; see Section III.A.1 above).39 Manufacturers should
531 	note that any one of the following formatting factors could make a piece false or misleading and that each
532 	factor could interact with others to increase this problem or to create a false or misleading impression
533 	when there might not be one if a factor were considered in isolation.
534
535 	1. 	Print Promotion
536
537 	The layout of a print promotional piece (generally, its plan, design, or arrangement) influences readers’
538 	ability to pay attention to and process specific features of the piece. 40 FDA considers the following
539 	selected aspects of the layout of a print promotional piece when assessing the comparable prominence and
540 	readability of risk and efficacy information. This is not an exhaustive list; other issues, such as language
541 	comprehension and the risk hierarchy, are covered in other sections.
542
543 	• 	Overall Location of Risk Information
544
545 	For a piece to be accurate and non-misleading, risk information should be included in the main part of a
546 	piece. If the omission of risk information in any part of a piece makes that part of the piece false or
547 	misleading, the problem cannot be corrected simply by including the risk information in a separate part of
548 	the piece. 41 To be comparably prominent to benefit information, risk information should generally appear
549 	in the same parts of the piece as the benefits.
38 See, e.g., 21 CFR 202.1(e)(7)(viii) for a list of implementing factors FDA takes into consideration when
evaluating the balance between benefit and risk information in an ad. See generally 21 CFR 202.1(e)(6)-(7).
39 See 21 U.S.C. § 352(c).
40 See Adams, A.S., & Edworthy, J. (1995) Quantifying and predicting the effects of basic text display variables on
the perceived urgency of warning labels: Tradeoffs involving font size, border weight, and color. Ergonomics, 38,
2221-2237; Brundage, M., Feldman-Stewart, D., Leis, A., Bezjak, A., Degner, L., Velji, K., et al. (2005)
Communicating quality of life information to cancer patients: A study of six presentation formats. Journal of
Clinical Oncology, 23, 6949-6956; Frantz, J.P. (1993) Effect of location and presentation format on attention to and
compliance with product warnings and instructions. Journal of Safety Research, 24, 131-154; Morrow, D., Leirer,
V., Altieri, P. (1995) List formats improve medication instructions for older adults. Educational Gerontology, 21,
151-166; Niemela, M., & Saariluoma, P. (2003) Layout attributes and recall. Behaviour and Information
Technology, 22, 353-363; Wogalter, M.S., & Vigilante, W.J., Jr. (2003) Effects of label format on knowledge
acquisition and perceived readability by younger and older adults. Ergonomics, 46, 327-344.
41 See 21 CFR 202.1(e)(3)(i). The prescription drug regulations allow the presentation of risk information in a
particular part of a promotional piece to be concise if it is supplemented by a prominent reference on each page to
the presence and location of a more complete discussion of such information elsewhere in the piece. Id. However,
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550
551 	Complete separation of benefit and risk information (e.g., presenting several pages of benefits before any
552 	risks) is one example of a lack of appropriate prominence.42 FDA will also look to see that risk
553 	information is not placed in such a way as to interfere with readers’ perceptions of the relative importance
554 	or utility of the information.
555
556 	• 	Location of Risk Information within a Part of the Promotional Piece
557
558 	In addition to appearing with or near benefit presentations, risk information should appear as an integral
559 	part of the piece, just as benefit information does. For example, a prescription drug ad should not present
560 	risks only on a brief summary page.
561
562 	Example 15: A product’s logo and a tagline are often used to signal the end of a piece. Readers
563 	may assume that any risk information placed below the logo and tagline is there only for liability
564 	purposes or to fulfill a regulatory requirement and is unrelated to the main message, especially if
565 	the information is presented in small type or otherwise lacking in emphasis.
566
567 	Example 16: A seven-page sales aid devotes the first six pages to effectiveness claims, which are
568 	prominently presented with colorful graphics, abundant white space, and large, colorful headers.
569 	Three of these pages also include a footnote referring readers to “Important Information on page
570 	7.” The seventh page summarizes some risk information from the PI in single-spaced paragraph
571 	format without headers or other presentation elements to emphasize to the reader that it is
572 	important risk information. Such a presentation creates problems regarding the adequate
573 	presentation of risk. The important risk information about the drug should instead be integrated
574 	into the piece and presented with similar prominence to the effectiveness claims.
575
576 	Similarly, problems can arise when parts of a print promotional piece appear so unrelated that the risks do
577 	not look to be part of the piece.
578
579 	Example 17: Risk information is placed in a thin column along the side of an ad in a different font
580 	and color scheme, so that the visuals and benefit information form a complete whole, separate
581 	from the risk information. This is not likely to be considered an adequate presentation of risk
582 	information.
583
584 	• 	Font Size and Style
585
586 	Font size and type style are format factors that can affect the prominence and readability of information. 43
587 	FDA does not object to a presentation on the basis of minor differences in font size alone, depending on
although the regulations allow for the “concise” presentation of such information, the nature and importance of this
information should be accurately conveyed. For example, if a drug contains a boxed warning with information on
the risk of elevations in potassium levels that can lead to life-threatening complications in some patients, a statement
in a part of a promotional piece that “Drug X may increase your potassium levels; see Prescribing Information (PI)
for more information” is not likely to convey to consumers or healthcare professionals the magnitude (i.e., life-
threatening nature) of the risk.
42 21 CFR 202.1(e)(3)(i); see also 21 U.S.C. 321(n), 21 CFR 202.1(e)(5)(iii).
43 Adams, A.S., & Edworthy, J. (1995) Quantifying and predicting the effects of basic text display variables on the
perceived urgency of warning labels: Tradeoffs involving font size, border weight, and color. Ergonomics, 38,
2221-2237; Arditi, A., & Cho, J. (2005) Serifs and font legibility. Vision Research, 45, 2926-2933; Baker, S.
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588 	other factors used to achieve emphasis (e.g., bolded lettering, bullets). However, FDA may object to
589 	substantial differences in font size or the presentation of risk information in a difficult to read font size,
590 	irrespective of the font size of benefit information, because this may seriously reduce the ability to see or
591 	comprehend the risk information.
592
593 	Even with identical risk and benefit font sizes, differences in type styles can render some information
594 	easier to read than other information. 44 To be comparably prominent and readable, FDA recommends that
595 	risk and benefit information be presented in type styles that are similar in the use of capitalization, serifs,
596 	the weight of the type-face, the angle of the letters, the degree of flourishes and scripting, and other
597 	typographical factors such as spacing (e.g., leading and kerning).45
598
599 	• 	Contrast
600
601 	Contrast between text and background should not highlight the benefit information more than the risk
602 	information.
603
604 	Example 18: If benefit information in a piece is presented in white letters on a black background,
605 	risk information should be presented with similar contrast. If the piece presents risk information
606 	in a way that would make it difficult to discern (e.g., using white letters on a light gray
607 	background or gray letters on a black background), the presentation may be considered false or
608 	misleading.
609
610 	Even if the background is a color designed to attract attention, the contrast influences the prominence of
611 	the words once attention has been gained. In fact, printing words in some attention-grabbing colors (e.g.,
612 	red) may make the words difficult to read.46 Similarly, the placement of risk information over pictures or
(2006). Provision of effective information. British Dental Journal, 201, 100; Sheedy, J.E., Subbaram, M.V.,
Zimmerman, A.B., & Hayes, J.R. (2005) Text legibility and the letter superiority effect. Human Factors, 47, 797-
815; Tantillo, J., Di Lorenzo-Aiss, J., & Mathisen, R.E. (1995) Quantifying perceived differences in type styles: An
exploratory study. Psychology and Marketing, 12, 447-457; Wogalter, M.S., & Vigilante, W.J. (2003) Effects of
label format on knowledge acquisition and perceived readability by younger and older adults. Ergonomics, 46, 327-
344.
44 English, E. (1944) A study of the readability of four newspaper headline types. Journalism Quarterly, 21, 217-
229; Mansfield, J.S., Legge, G.E., & Bane, M.C. (1996) Psychophysics of reading. XV: Font effects in normal and
low vision. Investigative Opthamology and Visual Science, 37, 1492-1501; Sheedy, J.E., Subbaram, M.V.,
Zimmerman, A.B., & Hayes, J.R. (2005) Text legibility and the letter superiority effect. Human Factors, 47, 797-
815; Tantillo, J., Di Lorenzo-Aiss, J., & Mathisen, R.E. (1995) Quantifying perceived differences in type styles: An
exploratory study. Psychology and Marketing, 12, 447-457.
45 See Arditi, A., & Cho, J. (2005) Serifs and font legibility. Vision Research, 45, 2926-2933; Baker, S. (2006)
Provision of effective information. British Dental Journal, 201, 100; Moriarty, S.E., & Scheiner, E.C. (1984) A
study of close-set text type. Journal of Applied Psychology, 69, 700-702; Paterson, D.G., & Tinker, M.A. (1947)
Influence of leading upon readability of newspaper type. Journal of Applied Psychology, 31, 160-163; Smither,
J.A., & Braun, C.C. (1994) Readability of prescription drug labels by older and younger adults. Journal of Clinical
Psychology in Medical Settings, 1, 149-159; Tinker, M.A., & Paterson, D.G. (1946) Effect of line width and leading
on readability of newspaper type. Journalism Quarterly, 23, 307-309.
46 See Pearson, R., & van Schaik, P. (2003) The effect of spatial layout and link colour in web pages on performance
in a visual search task and an interactive search task. International Journal of Human-Computer Studies, 59, 327-
353; but see Adams, A.S., & Edworthy, J. (1995) Quantifying and predicting the effects of basic text display
variables on the perceived urgency of warning labels: Tradeoffs involving font size, border weight, and color.
Ergonomics, 38, 2221-2237.
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613 	other visual elements with multiple colors can cause this information or portions of this information to
614 	lack prominence and be difficult to read.47 Furthermore, a print piece that superimposes risk information
615 	over a visual image could compromise the accuracy of the piece as a whole by drawing attention away
616 	from the risk information. 48
617
618 	• 	White Space
619
620 	Background space (often called white space) between and around letters can influence the prominence
621 	and readability of text.49 Presenting benefit information in multiple paragraphs with double spaces
622 	between each paragraph, while presenting risk information in one block paragraph without spacing or
623 	indentation could reduce the comparability of the risk and benefit presentations. Moreover, if a
624 	promotional piece uses headings, bullets, and other attention-getting symbols to emphasize product
625 	benefits, FDA recommends that it use similar techniques to present product risks.50
626
627 	2. 	Non-Print Promotion
628
629 	Some print formatting issues also apply to non-print promotion such as videos, broadcast ads, and similar
630 	audio and visual pieces. However, the unique features of non-print media add complexity. As with print,
631 	FDA considers factors such as location, proximity, type size, type style, and contrast when evaluating
632 	these materials. These factors are especially important with regard to text that is superimposed on other
633 	images in videos or broadcast ads (SUPERs) and other visual components, such as graphics, within the
634 	scene. In non-print pieces, FDA also evaluates other formatting factors in addition to those described
635 	above to determine whether a particular piece is considered false or misleading (e.g., audio components,
636 	motion within the visual component, the juxtaposition of visual and audio components, and duration of
637 	exposure).
638
639 	• 	Textual Elements
640
641 	Prescription drug broadcast ads must present major product risks in the audio or audio and visual parts of
642 	the ad.51 Thus, broadcast ads and videos often use SUPERs and other text to present risk-related
643 	qualifying information. When used to disclose risk, SUPERs can pose particular problems of readability,
644 	comprehensibility, and proximity to benefit information. For example, the FTC, which requires that
47 See, e.g., Hillstrom, A.P., & Chai, Y. (2006) Factors that guide or disrupt attentive visual processing. Computers
in Human Behavior, 22, 648-656; Petty, R.E., Wells, G.L., & Brock, T.C. (1976) Distraction can enhance or reduce
yielding to propaganda: Thought disruption versus effort justification. Journal of Personality and Social
Psychology, 34, 874-884; Zimbardo, P.G., Snyder, M., Thomas, J., Gold, A., & Gurwitz, S. (1970) Modifying the
impact of persuasive communications with external distraction. Journal of Personality and Social Psychology, 16,
669-680.
48 See Shiffrin, R.M., & Schneider, W. (1977) Controlled and automatic human information processing II:
Perceptual learning, automatic attending, and a general theory. Psychological Review, 84, 127-190.
49 Adams, A.S., & Edworthy, J. (1995) Quantifying and predicting the effects of basic text display variables on the
perceived urgency of warning labels: Tradeoffs involving font size, border weight, and color. Ergonomics, 38,
2221-2237; Pracejus, J.W., Olsen, G.D., & O’Guinn, T.C. (2006) How nothing became something: White space,
rhetoric, history, and meaning. Journal of Consumer Research, 33, 82-90.
50 See Luckiesh, M., & Moss, F.K. (1940) Boldness as a factor in type-design and typography. Journal of Applied
Psychology, 24, 170-183.
51 21 CFR 202.1(e)(1).
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645 	“[q]ualifying disclosures…be legible and understandable,” recognizes that, “in many circumstances
646 	reasonable consumers do not read the entirety of an ad or are directed away from the importance of the
647 	qualifying phrase by acts or statements of the seller.”52 FDA has similar concerns.
648
649 	FDA assesses the temporal location of SUPERs within a broadcast ad or video when evaluating whether
650 	it is false or misleading. If claims must be qualified to avoid misleading the audience, we recommend
651 	that the qualifier be vocalized, presented through visual images, or placed in a prominent SUPER that
652 	runs concurrently with the claim.53 If SUPERs do not appear close enough to the claim or risk
653 	information requiring qualification, a misleading impression of the product may result.54 In addition, if
654 	qualifying information is complex and requires more than one line of text, we recommend that
655 	manufacturers use other means to convey this information.
656
657 	Other issues FDA considers important that manufacturers should keep in mind include the following:
658
659 	— SUPERs, if used, should be reasonably visible to a person under typical viewing conditions.
660 	— All SUPERs should be on screen long enough to allow the audience to read and understand their
661 	full content.
662 	— Graphics that distract from the presentation of risk information, including from risk-related
663 	SUPERs (e.g., busy scenes, frequent scene changes, vivid and compelling visuals55 and moving
664 	camera angles) can misleadingly minimize the risks of the product being promoted by detracting
665 	from the audience’s comprehension of the risk presentation.
666 	— Competition from other SUPERs (e.g., presenting a SUPER related to a particular risk while
667 	unrelated SUPERs are on the screen) hampers the audience’s ability to read and understand the
668 	SUPERs and could compromise the communication of risk information and make a piece
669 	misleading.56
670 	— Factors such as font size, type style, and capitalization can also affect the readability of
671 	SUPERs.57 Words presented in all upper case letters are more difficult to read than words
672 	presented in upper and lower case letters.58
673
52 FTC Policy Statement on Deception at 183.
53 See 21 CFR 202.1(e)(3)(i).
54 Manrai, L.A., Manrai, A.K., & Murray, N. (1994) Comprehension of info-aid supers in television advertising for
social ideas: Implications for public policy. Journal of Business Research, 30, 75-84.
55 Vivid visual images are those images, pictures or other visual stimuli that are emotionally or cognitively
interesting, attention-getting, compelling, provoking, or personal in a sensory, temporal or spatial manger (after
Nisbett, R., and Ross, L. (1980) Human Inference: Strategies and Shortcomings of Social Judgment. Englewood
Cliffs, NJ: Prentice-Hall). Background music can also be distracting (Furnham, A., & Strbac, L. (2002). Music is as
distracting as noise: The differential distraction of background music and noise on the cognitive test performance of
introverts and extraverts. Ergonomics, 45, 203-217).
56 See, e.g., Mackie, D.M., & Worth, L.T. (1989) Processing deficits and the mediation of positive affect in
persuasion. Journal of Personality and Social Psychology, 57, 27-40; Manrai, L.A., Manrai, A.K., & Murray, N.
(1994) Comprehension of info-aid supers in television advertising for social ideas: Implications for public policy.
Journal of Business Research, 30, 75-84.
57 Baker, S. (2006) Provision of effective information. British Dental Journal, 201, 100; Manrai, L.A., Manrai,
A.K., & Murray, N. (1994) Comprehension of info-aid supers in television advertising for social ideas: Implications
for public policy. Journal of Business Research, 30, 75-84.
58 Paterson, D.G., & Tinker, M.A. (1941) Caps vs. lower-case in headlines. Editor & Publisher, 74, 51.
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674 	• 	Contrast
675
676 	Contrast is an important visual factor59 that FDA considers when evaluating television ads and videos.60
677 	As in print pieces, risk disclosures presented in SUPERs should be in a font color that reasonably
678 	contrasts with the background visuals. Because important non-benefit information is often conveyed by
679 	SUPERs, any obstacle to the prominence and readability of this information, and thus to the audience’s
680 	understanding of SUPERs, may result in a misleading risk presentation.
681
682 	• 	Dual Mode Considerations
683
684 	The interplay of visual and audio components in pieces such as television ads and videos introduces
685 	unique factors FDA must consider when evaluating the adequacy of risk disclosure. The issues raised
686 	above in Textual Elements about distracting visuals apply not only to the SUPER presentation but also to
687 	the audio presentation of risks.61 If visuals in a broadcast ad distract the audience from the statement of a
688 	product’s risks, the ad will not, as a whole, convey an accurate impression of the risks of the advertised
689 	product. This distraction could be caused by factors including busy scenes, frequent scene changes,
690 	moving camera angles, and even inherently compelling, vivid visuals. In addition, the overall tone of the
691 	ad or of specific background visuals can affect the comparable prominence of the risks, particularly if the
692 	tone is contrary to the risk message.
693
694 	Example 20: A video or broadcast ad depicts a joyous or exhilarating moment, contains images of
695 	people enjoying the benefits of the product, or includes otherwise compelling or distracting non-
696 	risk related images while major risks are communicated in a voiceover. The inconsistent tone or
697 	images may be too distracting for the audience to listen to or process the risks, causing the video
698 	or broadcast ad to communicate a false or misleading net impression of the product.
699
700 	• 	Audio Considerations
701
702 	FDA considers several audio-related factors when evaluating pieces such as sound recordings, videos, or
703 	broadcast ads, including television, radio, and telephone communications.
704
705 	— The qualities of speech should be similar across benefit and risk information for these
706 	components to be considered comparably prominent.
707 	— A critical speech consideration is pacing. If risk information is considerably more difficult to
708 	hear and process than benefit information because it is presented at a much faster pace, the piece
709 	will not convey an accurate impression of the product.
710 	— Markedly reducing volume or being less articulate when discussing risks compared to benefits
711 	may hinder the audience’s comprehension of the risks.
712 	— Background music should be comparable in volume and distraction potential during both benefit
713 	and risk presentations.
714
59 Mitzner, T.L., & Rogers, W.A. (2006) Reading in the dark: Effects of age and contrast on reading speed and
comprehension. Human Factors, 48, 229-240.
60 Seibert, W.F., Kasten, D.F., & Potter, J.R. (1959) A study of factors influencing the legibility of televised
characters. Journal of the Society of Motion Picture & Television Engineers, 68, 467-472.
61 See, e.g, Regan, D.T., & Cheng, J.B. (1973) Distraction and attitude change: A resolution. Journal of
Experimental Social Psychology, 9, 138-147.
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715
716 	IV. 	CONCLUSION
717
718 	The FDA’s regulation of prescription drug and medical device promotion to healthcare professionals and
719 	consumers is a broad and complex topic. A vast scientific body of knowledge is available regarding
720 	human cognition, and FDA relies on this knowledge when evaluating promotional pieces and making
721 	regulatory decisions about the presentation of benefit and risk information. The Agency hopes that by
722 	discussing the most relevant factors and by providing specific examples, manufacturers will gain a better
723 	understanding of what they should consider as they develop the content and format of their promotional
724 	communications.
725
726 	It is important to re-emphasize that, in addition to specific risk-related claims, FDA also considers the net
727 	impression conveyed by all the elements of a piece. For this reason, manufacturers should focus not just
728 	on individual claims or presentations, but on the messages conveyed by the promotional piece as a whole.
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729
730 	ATTACHMENT: STATUTORY AND REGULATORY REQUIREMENTS FOR
731 	LABELING AND ADVERTISING
732
733 	FDA regulates the manufacture, sale, and distribution of drugs and devices in the United States under the
734 	authority of the Federal Food, Drug, and Cosmetic Act (the Act). This authority includes oversight of
735 	labeling for all drugs and devices and of advertising for prescription drugs and restricted devices. 21
736 	U.S.C. 352(a), (n), (q), & (r). In regulating the labeling and advertising of drugs and devices, FDA
737 	attends to the First Amendment.
738
739 	The Act defines label to mean “a display of written, printed, or graphic matter upon the immediate
740 	container of any article . . . .” 21 U.S.C. 321(k). According to FDA regulations (21 CFR 1.3(b)): “Label
741 	means any display of written, printed, or graphic matter on the immediate container of any article, or any
742 	such matter affixed to any consumer commodity or affixed to or appearing upon a package containing any
743 	consumer commodity.” The Act defines labeling to mean “all labels and other written, printed, or graphic
744 	matter (1) upon any article or any of its containers or wrappers, or (2) accompanying such article.” 21
745 	U.S.C. 321(m). Similarly, FDA regulations (21 CFR 1.3(a)) provide that labeling includes “all written,
746 	printed, or graphic matter accompanying an article at any time while such article is in interstate commerce
747 	or held for sale after shipment or delivery in interstate commerce.”
748
749 	According to Kordel v. United States, 335 U.S. 345, 350 (1948), the language “accompanying such
750 	article” in the “labeling” definition includes materials that supplement or explain an article, “in the
751 	manner that a committee report of the Congress accompanies a bill. No physical attachment one to the
752 	other is necessary. It is the textual relationship that is significant.” FDA’s prescription drug advertising
753 	regulations (21 CFR 202.1(l)(2)) thus provide as examples of labeling a wide variety of written, printed,
754 	or graphic matter that bears a textual relationship with a product.
755
756 	FDA generally recognizes two types of labeling for drugs and devices: FDA-required labeling and
757 	promotional labeling. Much FDA-required labeling is subject to FDA review and approval. For
758 	example, after drafting by the manufacturer, required labeling is reviewed and approved by FDA as part
759 	of the new drug application (NDA), new animal drug application (NADA), biologics license application
760 	(BLA) or premarket approval application (PMA) review (21 CFR 314.50(c)(2), 514.1(b)(3), 601.2(a), and
761 	814.20(b)(10)).
762
763 	For devices that are not subject to premarket approval, but instead are subject to premarket notification
764 	requirements or are exempt from premarket review, there is no agency review or approval of labeling, but
765 	such devices remain subject to all of the requirements of applicable labeling regulations, including those
766 	for adequate directions for use. For a prescription drug or prescription device to be exempted from the
767 	Act’s requirement of adequate directions for use (21 U.S.C. 352(f)(1)), its FDA-required labeling must
768 	contain, among other information, information addressing product hazards and other risk information, as
769 	specified in FDA regulations.62
770
771 	Promotional labeling is generally any labeling other than the FDA-required labeling that is devised for
772 	promotion of the product. Promotional labeling may include items such as “brochures, booklets, mailing
773 	pieces, detailing pieces, file cards, bulletins, calendars, price lists, catalogs, house organs, letters, motion
774 	picture films, film strips, lantern slides, sound recordings, exhibits, literature, and reprints and similar
62 21 CFR 201.100(d)(1), (3), 201.105(c)(1), & 801.109(d).
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775 	pieces of printed, audio, or visual matter . . . .” 63 The Act specifies that a drug or device shall be deemed
776 	to be misbranded if its labeling is false or misleading in any particular. 21 U.S.C. 352(a). The Act further
777 	specifies that labeling or advertising may be considered misleading if it fails to reveal material facts about
778 	the product being promoted, including facts about the consequences that can result from use of the
779 	product as suggested in a promotional piece. 21 U.S.C. 321(n). In addition, the Act specifies that a drug
780 	or device will be deemed to be misbranded if any word, statement, or other information required under
781 	the Act to appear on the label or labeling is not “prominently placed thereon with such conspicuousness
782 	(as compared with other words, statements, designs, or devices, in the labeling) and in such terms as to
783 	render it likely to be read and understood by the ordinary individual under customary conditions of
784 	purchase and use.” 21 U.S.C. 352(c).
785
786 	Advertising 64 for prescription drugs and restricted devices is also subject to requirements under the Act
787 	for the disclosure of risk and other information. Under section 502(n) of the Act (21 U.S.C. 352(n)) and
788 	FDA’s implementing regulations (21 CFR Part 202), an ad for a prescription drug must include, in
789 	addition to the product’s established name and quantitative composition, a “true statement” of information
790 	in brief summary “relating to side effects, contraindications and effectiveness” of the product with respect
791 	to the use or uses that the message promotes. 65 Advertisements for restricted devices must include “a
792 	brief statement of the intended uses of the device and relevant warnings, precautions, side effects, and
793 	contraindications . . . .” 21 U.S.C. 352(r)(2). For prescription drug advertisements, FDA’s implementing
794 	regulations specify that, among other things, the statutory requirement of a “true statement” is not
795 	satisfied if an ad for a prescription drug product is false or misleading with respect to side effects,
796 	contraindications or effectiveness or if it fails to reveal material facts about “consequences that may result
797 	from the use of the drug as recommended or suggested in the advertisement.” 21 CFR 202.1(e)(5).
798 	Similarly, the Act also specifies that restricted device advertisements must not be false or misleading (21
799 	U.S.C. 352(q)(1)) and must reveal facts that are material about the product being advertised, including
800 	facts about the consequences that can result from use of the product as suggested in an ad. 21 U.S.C.
801 	321(n).
802
803 	The prescription drug regulations also specify that ads must present a fair balance between information
804 	relating to risks and benefits, which is achieved when the treatment of risk and benefit information in a
805 	promotional piece is comparably thorough and complete throughout the piece. 21 CFR 202.1(e)(5)(ii).
806 	These regulations also provide illustrations of the factors FDA considers in determining whether
807 	promotional pieces comply with the above requirements relating to risk disclosure. Specifically, these
808 	regulations identify twenty types of advertising communications that FDA considers “false, lacking in fair
809 	balance, or otherwise misleading.” 21 CFR 202.1(e)(6). These include, for example, representations or
810 	suggestions that a drug is more effective or safer than has been demonstrated by substantial evidence or
811 	substantial clinical experience, the use of pictures or graphics in a way that is misleading, and the
812 	presentation of risk information “by means of a general term for a group” rather than disclosing specific
63 See, e.g., 21 CFR 202.1(l)(2).
64 The act does not define “advertising” or “advertisement.” According to FDA regulations (21 CFR 202.1(l)(1)),
“Advertisements subject to section 502(n) of the act include advertisements in published journals, magazines, other
periodicals, and newspapers, and advertisements broadcast through media such as radio, television, and telephone
communication systems.”
65 According to 21 CFR 202.1(e)(3)(iii), the information in brief summary relating to side effects and
contraindications must disclose “each specific side effect and contraindication (which include side effects, warnings,
precautions, and contraindications and include any such information under such headings as cautions, special
considerations, important notes, etc. . . .) contained in required, approved, or permitted labeling for the advertised
drug dosage form(s)” (emphasis added).
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813 	risks. 21 CFR 202.1(e)(6)(i), (xviii), & (xx). Representing or suggesting that a drug product is “safer
814 	than has been demonstrated by substantial evidence or substantial clinical experience” means obscuring
815 	or failing to include the most serious risk information set forth in the drug's FDA-approved labeling, and
816 	does not refer to a failure to include risk information that is not set forth in the drug's FDA-approved
817 	labeling.
818
819 	In addition, these regulations identify thirteen additional types of advertising communications that “may
820 	be false, lacking in fair balance, or otherwise misleading.” 21 CFR 202.1(e)(7). These include, for
821 	example, advertising communications that fail to “present information relating to side effects and
822 	contraindications with a prominence and readability reasonably comparable with the presentation of
823 	information relating to effectiveness of the drug.” 21 CFR 202.1(e)(7)(viii).
824
825 	Although the regulations discussed above were promulgated in the context of prescription drug
826 	advertising, the guidance they provide on what FDA considers false or misleading in promotion has
827 	broader applicability. For example, promotional pieces that fail to present a balanced view of the risks
828 	and benefits of a product are generally considered to be false or misleading and also generally fail to
829 	reveal material facts about the product being promoted. Because both labeling pieces for drugs and
830 	devices, and advertising pieces for prescription drugs and restricted devices, are considered to misbrand a
831 	product if they are false or misleading or fail to reveal material facts,66 drug and device manufacturers
832 	should take into account the guidance provided by these regulations when developing promotional
833 	labeling and advertising pieces for their products.
834
835
836
66 21 U.S.C. 352(a), (n), (q)(1) & 321(n); 21 CFR 202.1(e)(5).
24