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What is Lasik LASIK Mystery Solved: FDA ‘Declassifies’ Secret Ads Policy 02/01/2011 Direct from FDA’s “egg on our face” department comes the confession of press officer Karen Riley that she mislaid the answer to our request for clarification about the agency’s jurisdiction/no jurisdiction over “restricted” device advertising, thus missing our deadline. Our story, CDRH Disowns Statutory Authority Over LASIK Ads, attempted to reconcile a 20-month-old CDRH letter to eye care professionals asserting FDA jurisdiction over their LASIK ads with a 1/29 statement that FDA has no jurisdiction because the Federal Trade Commission has that jurisdiction. Unstated in either letter was this new information, at the bottom of Riley’s seven-line delayed response to our request for clarification: “If statements in advertising and promotional materials do not relate to any of these restricted devices (or other FDA-regulated product), FDA generally defers oversight of such advertising and promotion to the FTC which has authority over unfair and deceptive business practices, including false advertisements related to products and services.” If injured LASIK patients had known this 20 months ago, they could have sent all their LASIK ad complaints to FTC rather than to CDRH — which apparently ignored them.
CDRH Disowns Statutory Authority Over LASIK Ads 01/31/2011 Twenty months after CDRH’s then director of compliance, Timothy Ulatowski, cautioned the nation’s eye care professionals not to make misleading or unsubstantiated claims in their advertisements about the effectiveness of lasers used in LASIK surgery, the Center has conducted no follow-up and last week announced it has no jurisdiction over LASIK ads. “These lasers,” wrote Ulatowski back then, “are restricted medical devices that have been approved for particular uses and have risks associated with their use. Advertising and promotional materials for FDA-approved lasers used during LASIK procedures must be truthful, properly substantiated and not misleading. “A restricted device is misbranded under the Federal, Food, Drug, and Cosmetic Act (Act) if its advertising is false or misleading (21 USC 352(q)). In determining whether the advertisement is misleading, the FDA takes into account not only representations made or suggested by statement, word, or design, but also the extent to which the advertisement fails to reveal facts material in the light of such representations, or material with respect to consequences which may result from the use of the device to which the advertisement relates under the conditions of use prescribed in the advertisement (21 USC 321(n)).” Fast-forward 20 months to last Friday (1/28), when CDRH ombudsman David S. Buckles told LASIK victim and activist Paula Cofer: “I’ve investigated the matter you raised regarding the advertising practices cited in your message. Because the advertising practices apparently to do not relate to medical products per se, but rather are advertising for the provision of services, we do not have jurisdiction in this matter. My understanding is that these issues are handled as ‘service industry claims’ by the Federal Trade Commission.” Cofer, an FDA advisory panel patient representative, had sent CDRH compliance director Steven Silverman what she called a “blatantly deceptive” Web site link by Florida-based Brandon Eye Associates, and Silverman passed her off to Buckles, who has no enforcement authority. In her request to Silverman, Cofer wrote that the Web site’s front page banner headline, “Kiss Your Contacts and Glasses Goodbye is misleading and deceptive. There is no disclaimer that some patients may need to continue wearing glasses or contact lenses, and there is no mention of risks, side effects, and contraindications. “This is an example of the typical hype and failure to disclose risks that is prevalent in LASIK advertising on the Internet,” Cofer’s email to Silverman went on. “We, the injured LASIK patient community, have complained about this for years, but I have not seen a change in the way LASIK is advertised. Former director of compliance, Timothy Ulatowski, sent a letter on 5/22/2009 to eye care professionals in what appeared to be a crack down on false and misleading LASIK ads. Since that time, it’s only gotten worse. There are thousands of LASIK ad violators on the Internet. “As injured LASIK patients, what should we do when we see this type of illegal ad? Will anything be done by the FDA if we take the time to report them? “I await a response.” Another victim and activist, Dean Kantis, says he has sent CDRH “hundreds” of violative LASIK ads, to no effect. Has FDA investigated any of them, and if so, with what result? Buckles says “we are not in a position to disclose the status or even the existence of compliance and enforcement actions that are being contemplated or are in progress.” Meanwhile, nearly 300 people have signed an online forum supporting a petition filed earlier this month by former CDRH ophthalmic devices director Morris Waxler, seeking an immediate ban on the procedure because of its unacceptable adverse events rate. FDA did not respond to two requests for its input on this report.
'Why LASIK is ‘Too Dangerous to be Allowed' — says BioShape/German Firm As FDA continues to dither in the face of new data challenging the safety of vision-enhancing LASIK eye surgery, a new report to be published next week by the German technology innovator BioShape Holding will support an immediate ban on the procedure. Adding to data in a petition for an immediate ban from former CDRH LASIK review chief Morris Waxler, the company says it has developed a unique device that measures the topography of the eye during refractive laser treatment and its research has shown “that LASIK in general is too dangerous to be allowed,” according to co-founder Daniel Kluting in an email to FDA Webview. “The problem is that the LASIK cut brings problems to the structure of the eyes,” Kluting writes. “Because we have the only measuring device that is able to measure the topometry of the eyes with resolution of a few microns, we can look deeper into microeffects than anybody else. One of the major questions in research is, what the cornea is built of? From our researches it seems to be that it consists of tissue layers with a tensive strain to all sides. Think about cutting in something like that!” The permanence of the never-healing corneal flap cut is a major concern in Waxler’s petition, which last week was still deep in a queue in the Commissioner’s Office, awaiting a decision on whether or not to even accept it for consideration. In less than a year, Waxler has hardened his position from tolerating LASIK’s continuation to petitioning the agency for a complete ban and vowing to seek FDA Office of Criminal Investigations focus on laser makers who allegedly hid LASIK safety issues. It has been 16 silent months since former CDRH compliance director Tim Ulatowski FDA launched a mini-blizzard of Warning Letters to LASIK ambulatory surgical facilities over their failure to file MDR reports and peppered the industry with advice to include risk information in their ads — with no further word from him or his successor, Steve Silverman, about follow-ups. During the ensuing inactivity, injured LASIK victim and activist Dean Kantis says he has sent “hundreds” of violative LASIK ads “that do not list all known risks and side effects … And the FDA continues to do NOTHING to discipline them. Why is it when I turn on the TV, every prescription drug commercial has 30 seconds of warnings yet when it comes to elective LASIK ads on TV or radio, there isn’t one word mentioned of the warnings?” FDA’s ingrained unresponsiveness on the LASIK safety issue is well illustrated by its failure to response to a 9/13/09, heavily documented 14-page letter from LASIK Surgery Watch to CDRH director Jeff Shuren describing the risks of the procedure. Kluting’s email says that “from our point of view we would like to see LASIK stopped immediately. Then the laser manufactures need to do some basic research on eyes is probably come up with a completely new way how to do refractive surgery. During the last 7 years the laser industry knew the problems, but did not want to go through the process of basic researches combined with the stop of LASIK. Right now with LASIK the cornea is damaged, the only good thing is that the cornea excuses a lot and the eye is still able to see. Nearly all risks of LASIK are because the procedure is not safe. It’s not because of the patient or a misfortune. “We have just a measuring device. Our goal was to measure the ablation during refractive surgery to avoid using nomograms and be more precise. We did clinical trials with one of the large players on the market. But we found out that first all surgeons and the industry need to understand the eye better. We have a couple of ideas how refractive surgery can be in the future, but till now … laser manufacturers avoid to talk with us. Even those we made the clinical trials with, 8 years ago. It’s easier to leave the moneymaking machine LASIK turned on than to go through the struggle of development. “So we went into the market of scleral lenses and wait for the refractive market to wake up. All patients who got hurt by LASIK since mid-2005 could have been prevented.” BioShape’s new report next week will update and supersede its 2005 report on the same subject, Complications of Refractive Laser Surgery. In a comment to FDA Webview, former FDA medical device compliance director Larry R. Pilot, who has been deeply involved in the LASIK issue with injured patients, called FDA’s management of its regulatory program for LASIK “a clear dereliction of duty and responsibility to the concept of ‘protection of the public health’. While there may be valid applications for LASIK eye surgery,” Pilot continued, “the vast majority of uses involve risks to the patient/customer that are often unknown until after the fact. The FDA/CDRH has failed incredibly to monitor post market experience through its mandatory MDR program. For just this program alone, the potential for patient protection was there for years, yet the CDRH deliberately ignored the responsibility to inspect or review the performance of any of the possible thousands of user facilities which were in absolute violation of law and regulation. “Current and past FDA/CDRH employees shared this liability and should have been/should be punished for their failures. … I agree that the optimal approach to reporting is to have the FDA/CDRH enforce the MDR requirement applicable to user facilities. From the outset of my involvement with this LASIK issue, I have repeatedly emphasized this fact. It took two years for the FDA to display some movement, but more is needed.”
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