Let’s Require Health Claims to Be Evidence Based

Litigation arising from the FDA’s refusal to approval “health claims” for foods and dietary supplements is a fertile area for disputes over the interpretation of statistical evidence.  A ‘‘health claim’’ is ‘‘any claim made on the label or in labeling of a food, including a dietary supplement, that expressly or by implication … characterizes the relationship of any substance to a disease or health-related condition.’’ 21 C.F.R. § 101.14(a)(1); see also 21 U.S.C. § 343(r)(1)(A)-(B).

Unlike the federal courts exercising their gatekeeping responsibility, the FDA has committed to pre-specified principles of interpretation and evaluation. By regulation, the FDA gives notice of standards for evaluating complex evidentiary displays for the ‘‘significant scientific agreement’’ required for approving a food or dietary supplement health claim.  21 C.F.R. § 101.14.  See FDA – Guidance for Industry: Evidence-Based Review System for the Scientific Evaluation of Health Claims – Final (2009).

If the FDA’s refusal to approve a health claim requires pre-specified criteria of evaluation, then we should be asking ourselves why have the federal courts failed to develop a set of criteria for evaluating health effects claims as part of its Rule 702 (“Daubert“) gatekeeping responsibilities.  Why, after close to 20 years after the Supreme Court decided Daubert, can lawyers make “health claims” without having to satisfy evidence-based criteria?

Although the FDA’s guidance is not always as precise as might be hoped, it is far better than the suggestion of the new Reference Manual for Scientific Evidence (3d ed. 2011) that there is no hierarchy of evidence.   See RMSE 3d at 564 & n.48 (citing and quoting idiosyncratic symposium paper that “[t]here should be no hierarchy [among different types of scientific methods to determine cancer causation]; “Late Professor Berger’s Introduction to the Reference Manual on Scientific Evidence” (Oct. 23, 2011).

The FDA’s attempt to articulate an evidence-based hierarchy is noteworthy because the agency must evaluate a wide range of evidence, from in vitro, to animal studies, to observational studies of varying kinds, to clinical trials, to meta-analyses and reviews.  The FDA’s criteria are a good start, and I imagine that they will develop and improve over time.  Although imperfect, the criteria are light years ahead of the situation in federal and state court gatekeeping.  Unlike gatekeeping in civil actions, the FDA criteria are pre-stated and not devised post hoc.  The FDA’s attempt to implement evidence-based principles in the evaluation of health claims made is a model that would much improve the Reference Manual for Scientific EvidenceSee Christopher Guzelian & Philip Guzelian, “Prevention of false scientific speech: a new role for an evidence-based approach,” 27 Human & Experimental Toxicol. 733 (2008).

The FDA’s evidence-based criteria need work in some areas.  For instance, the FDA’s Guidance on meta-analysis is not particularly specific or helpful:

Research Synthesis Studies

Reports that discuss a number of different studies, such as review articles, do not provide sufficient information on the individual studies reviewed for FDA to determine critical elements such as the study population characteristics and the composition of the products used. Similarly, the lack of detailed information on studies summarized in review articles prevents FDA from determining whether the studies are flawed in critical elements such as design, conduct of studies, and data analysis. FDA must be able to review the critical elements of a study to determine whether any scientific conclusions can be drawn from it. Therefore, FDA intends to use review articles and similar publications to identify reports of additional studies that may be useful to the health claim review and as background about the substance/disease relationship. If additional studies are identified, the agency intends to evaluate them individually. Most meta-analyses, because they lack detailed information on the studies summarized, will only be used to identify reports of additional studies that may be useful to the health claim review and as background about the substance-disease relationship.  FDA, however, intends to consider as part of its health claim review process a meta-analysis that reviews all the publicly available studies on the substance/disease relationship. The reviewed studies should be consistent with the critical elements, quality and other factors set out in this guidance and the statistical analyses adequately conducted.”

FDA – Guidance for Industry: Evidence-Based Review System for the Scientific Evaluation of Health Claims – Final at 10 (2009).

The dismissal of review articles as a secondary source is welcome, but meta-analyses are quantitative reviews that can add additional insights and evidence, if methodologically appropriate, by providing a summary estimate of association, sensitivity analyses, meta-regression, etc.  The FDA’s guidance was applied in connection with the agency’s refusal to approve a health claim for vitamin C and lung cancer.  Proponents claimed that a particular meta-analysis supported their health claim, but the FDA disagreed.  The proponents sought injunctive relief in federal district court, which upheld the FDA’s decision on vitamin C and lung cancer.  Alliance for Natural Health US v. Sebelius, 786 F.Supp. 2d 1, 21 (D.D.C. 2011).  The district court found that the FDA’s refusal to approve the health claim was neither arbitrary nor capricious with respect to its evaluation of the cited meta-analysis:

‘‘The FDA discounted the Cho study because it was a ‘meta-analysis’ of studies reflected in a review article. FDA Decision at 2523. As explained in the 2009 Guidance Document, ‘research synthesis studies’, and ‘review articles’, including ‘most meta-analyses’, ‘do not provide sufficient information on the individual studies reviewed’ to determine critical elements of the studies and whether those elements were flawed. 2009 Guidance Document at A.R. 2432. The Guidance Document makes an exception for meta-analyses ‘that review[ ] all the publicly available studies on the substance/disease relationship’. Id. Based on the Court’s review of the Cho article, the FDA’s decision to exclude this article as a meta-analysis was not arbitrary and capricious.’’

Id. at 19.

The FDA’s Guidance was adequate for its task in the vitamin C/lung cancer health claim, but notably absent from the Guidance are any criteria to evaluate competing meta-analyses that do include “all the publicly available studies on the substance/disease relationship.”  The model assumptions of meta-analyses, fixed effect versus random effects, lack of heterogeneity, as well as other considerations will need to be spelled out in advance.  Still not a bad start.  Implementing evidence-based criteria in Rule 702 gatekeeping has the potential to tame the gatekeeper’s discretion.

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