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stem cell mis-regulation

There’s just time for a quick update on the FDA’s Injunction Lawsuit against US Stem Cell Clinic

There’s just time for a quick update on the FDA’s Injunction Lawsuit against US Stem Cell Clinic

Recent fillings and orders which were expected:

  1. Longer papers for summary judgement. The parties jointly moved to allow each to file more pages than is allowed for summary judgment under the local rules. The parties wanted double the amount. The judge gave them less.
  2. Yesterday the parties filed a joint motion to cancel the local rule required mediation. Mediation is a waste of time in a case like this. There’s no money damages sought, and the Government already told US Stem Cell Clinic what it wanted (stop selling stem cells). The offer was declined. Nothing has changed. The judge should grant the motion.

Summary Judgment motions are due on or before March 11, 2019, which is this Monday. Look to both sides moving for summary judgement.

Here are the arguments each side will make:

The Government’s motion:

  1. There are no disputed facts requiring a trial. US Stem Cell Clinic (USSCC) is extracting MSC’s from adipose tissue and processing the material into some kind of (SVF) Stromal Vascular Fraction, which it is using autologously on patients for a wide variety of non homologous uses.
  2. The extraction process and subsequent processing of the HCT/P’s constitute “more than minimal manipulation.” as defined by FDA regulations and guidence documents.
  3. As a result, the products are regulated as 351 (new drugs) not just 361 matieral (same day surgical procedure, homologous use and not more than minimal manipulation).
  4. There is no NDA or IND on file for the new drugs.
  5. The lab producing the product is not cGMP or cGTP compliant per FDA inspection memorialized in a 483 inspection report and a subsequent warning letter.
  6. As a result, USSCC’s prior and continued use of these products is illegal under Federal law, and specifically, introducing into interstate commerce an unapproved new drug. In addition, the drug is misbranded (since there is no approved labeling and instructions for use) and adulterated (because the drug manufacturing facility is not cGMP and cGTP compliant, and other reasons).
  7. The court should give deference to the FDA’s opinion under the Chevron doctrine, and there is direct precedent supporting the FDA’s and rejecting the Defendant’s anticipated argument (practice of medicine) in the Regenerative Sciences case decided by the DC Circuit.

US Stem Cell Clinic’s motion

  1. There are no disputed facts requiring a trial. USSCC is extracting MSC’s from adipose tissue and processing the material into some kind of (SVF) Stromal Vascular Fraction, which it is using autologously on patients, for homologous use.
  2. The SVF is not more than minimally manipulated as the character of the cells are not being altered.
  3. The material is removed and reimplanted during the same surgical procedure making the procedure exempt under 21 CFR 1271.15, under which the FDA has declined jurisdiction to regulate this and other similiar surgical procedures.
  4. USSCC is involved in the practice of medicine which is a matter of state law and not within the FDA’s jurisdiction, like any other surgical procedure that uses the patient’s own blood product for same day reimplantation.
  5. (If they’re clever, they might come-up with something else which hasn’t been talked about much, but we’ll just have to wait and see).

The Decision

Government 1 — US Stem Cells 0,

is my prediction

Will it matter?

Not as much as the Government (and the stem cell institutional players) think and hope.

Why is that?

Once you’re bitten by the stem cell bug, you don’t get out just because of a little set-back like a permanent injunction (even affirmed by the Court of Appeals). You adapt (or metastasize depending on one’s perspective). The public company involved or related to the lawsuit is non essential and expendable. There are other public company shells to be had in the next iteration of the business.

Stem cell therapy is the center of the medical universe right now. It’s intoxicating especially for participants who are not licensed physicians. Just look at all the chiros and naturopaths getting into it. And let’s face it, it’s a growth industry with great financial rewards, like the gold rush or the wild west. Once you’re bitten….

My guess is that Comella and her crew already have their Plan B figured out and ready to go, and it wouldn’t surprise me if Plan B is already up and running in a small way. And since she’s not a licensed health care practitioner, she doesn’t have to worry about a state medical board stopping her.

So I’m betting that regardless of inevitable permanent injunction granted on summary judgement or its affirmance by the Court of Appeals, she’s not leaving the field so fast.

Rick Jaffe, Esq.

rickjaffeesquire@gmail.com

A Injured Stem Cell Patient’s Story

A Injured Stem Cell Patient’s Story

I previously posted about a west coast stem clinic which had injured several dozen patients with its autologous based stem cell product. Here is a link to the prior post:
http://rickjaffeesq.com/2019/01/13/what-should-happen-if-a-stem-cell-clinic-harms-many-patients-revised/

Here is the story on one of the patients, written in her own words, with some deletions and redactions to de-identify the clinic.

The clinic told me I was an excellent candidate for their Lyme SVF stem cell treatment. They promised this treatment would boost my immune system to help my body fight off the infections and heal the damage from the infections. The thought of going somewhere and finally getting taken care of after 7 years of struggling sounded heavenly, but this place was anything but.

Before I signed up, I gave them all of my labs, genetic mutations, scans, you name it, they had it. I was still told I was “perfect for this treatment.” I was told there were “no risks” and it was an “85% success rate.” The only risk would be I might not notice any positive changes.

With this hope I scrambled to come up with the fee [in excess of 20,000]. I refinanced my home and gave them the last bit of money we had to invest into my health. It was scary, but I was reassured this would be what my body needed to heal from all of the neuro damage Lyme had caused. I was promised by several staff members and the doctors that I would heal from all of my damage. I have vision loss, hearing loss, loss of taste and smell, and neuropathy all over, just to name a few.

When I arrived my first day, I was greeted by friendly staff, but the person I expected to be introduced to, I never actually met, which was odd since that person was the face of the clinic and it was my impression that it was the person who designed the treatment plan for the patients.

They never ran any labs for me, just a body scan which I was told later that wasn’t as accurate as they made it out to be when I was there. I did ok with most of the IVs, but I did have a really bad reaction to two of the them. I did notice a bit of an improvement from the detoxing and felt hopeful. I woke up every night after the IVs gasping for air and being in a hotel alone like that was terrifying. I had never experienced that before and believed it was a good thing.

The day of my stems the procedure went ok, but I was bruised up pretty bad and ended up with a dent on both sides of my hips that are still there two years later. The night after the procedure I noticed my tinnitus got louder and everything sounded like I was in a fish tank. I was hoping this was a good sign of healing.

I went home and was told not to take any supplements, do not detox, don’t do any other treatments, and “just let the stems do the work!” This sounded really great after being on so many treatments and supplements for so many years. I was so hopeful!!!

I noticed a lot of ups and downs. Weird blood pressure dips, constant tingling all over my body and for the first time I was having a hard time sleeping. I took the tingling to be the stems working. I continued to believe I was healing.

Five months after stems, I developed mast cell activation syndrome after trying to work out. I took one small sip of white wine and five minutes later started having an anaphylactic reaction. I had never even heard of it before or had any allergies to foods or medications. I was so scared to be allergic to all foods, my environment, and anything I put on my skin.

I saw a local allergist first who was so worried for me and had never seen someone so overreactive. She was really angry and told me to contact the FDA. They wouldn’t explain what they gave me or the procedure. She didn’t know what to do for me so I was left to figure it out on my own. I researched it and found a mast cell specialist who put me on a mast cell stabilizer, Zantac and Claritin around the clock. It didn’t make all of my symptoms go away, but it made me not die!! I reached out to the clinic and they told me this was “normal and part of neuro healing.” I had a hard time believing this was normal, but stayed hopeful and waited for this to pass. They agreed antihistamines and a mast cell stabilizer were necessary. I was told there was no problem with adding these meds.

Months passed and I continued to get worse. I could not sleep or eat for two months straight. I don’t even know how I made it through it. I was so desperate and thought I was dying. The clinic doctors called it “neuro healing” for a long time. They said MCAS was a normal, temporary part of healing and I was to remain calm and hopeful. I was told to wait a year to 18 months for the neuro healing to be complete.

Somehow, I managed to change my meds and calm it down, but with every flare, my body would never be the same. It was even more confused as the month before. During this time, I started hearing the stem cell clinic changing its tune. Now genetics mattered, mast cell was not a good thing and we should never be on any antihistamines or mast cell stabilizers or it could make the stems continue to push out mast cells. They blamed all of my issues on my genetics when they damn well knew my genetics before I went! I was sent a ton of supplements hoping to help my body calm down, but I reacted to all of them. My throat turned red, I would get panicky and my throat would close up.

I believe the stem cell clinic doctor knew that they messed me up and offered free treatment and offered to pay for my flight. The doctor wanted to give me steroids and wouldn’t tell me what else. Steroids are extremely dangerous for someone with Lyme Disease and Mast Cell. I could not fly safely. It was risky to even go to the store. I was allergic to everything around me. I realized at this point I was on my own. So I was left to fend for myself closer to home. I begged for a refund since I spent everything for this treatment, but they wouldn’t offer one. It was devastating.

A year after mast cell started, I developed POTS and dysautonomia. Just when I didn’t think things could get any worse, this was way worse than I ever imagined. I faint all the time, I have vertigo when I fall asleep, and I cannot work alone anymore because it’s too risky. Traveling is impossible. I don’t go out to eat anymore. I’ve lost my taste completely. I have weird rashes and itch all over. I have SEVERE INSOMNIA and I cannot sleep without taking Xanax or my throat closes up. I have zero social life. I’ve lost half my hair and have bald spots. My skin is aging like crazy and I had great skin before this. I eat 10 foods and I react to almost everything. I have major digestive problems that I never had before this. My throat closes up and I have difficulty swallowing. Needless to say, I have been through HELL and I wish I could go back and not do this treatment!!

A full refund would be nice. I’ve asked them three times very nicely and they said no. I now have to raise money for all of my expensive medications and treatments needed to survive this. I cannot bind, detox or treat which makes me a ticking time bomb for death.

The stem cell clinic has people in all the Facebook groups trying to shut the sick patients up. They are all about marketing and control. They have threatened to sue two of my friends for sharing their experience in other Facebook groups. This is extremely stressful as you can imagine for a sick person to deal with. This is why I’ve chosen to stay quiet until now.

I messaged the clinic and asked them to take my positive posts down on all social media. I told them I was doing horribly and they responded with the option of exosomes. I would never trust them ever again or recommend anyone to this clinic. What a nightmare.

I am told that there are several dozen other patients with similiar stories of harm from this clinic. Although I support private stem cell clinics using autologous products, clearly there are risks involved and patients should be made aware of them. I doubt this paticular clinic is advising patients of all the horrible adverse events suffered by this an other patients, and that’s a shame, license sanctionable for sure, and possibly even criminal.

I’m hoping the folks operating this clinic get what’s coming to them. Even though I am a private stem cell clinic supporter, I’m going to do what I can to make that happen.

Stay tuned!

Rick Jaffe, Esq.
www.rickjaffeesquire@gmail.com
rickjaffeesquire@gmail.com

Is cord blood/umbilical cord stem cell treatment legal?

Is cord blood/umbilical cord stem cell treatment legal?

Virtually all the attention I’ve given to stem cells in my prior posts has been on autologous stem cell transplants. But the private stem cell clinic industry actually started with cord blood back in the early part of this century. I have written about the start of this field and the FDA’s first two cord blood clinic criminal investigations in Galileo’s Lawyer. The short of it is that even back then, the FDA didn’t think a private clinic’s use of cord blood was legal (though in my first case, the feds decided not to indict my client, out of the goodness of their hearts. I got involved in the second case after the clinic owners were indicted. One of them is living abroad as a fleeing felon, as the government has been unsuccessful in extraditing him).

And despite the misinformation spread by the most of the cord blood manufacturers selling cord blood or Umbilical Cord Stem Cells (“UCSCs”) to the private medical clinics, the FDA hasn’t changed its position:

Allogeneic cord blood use is still considered illegal by the FDA except for blood transfusions/FDA approved uses manufactured by companies which have NDA drug approval or an FDA biological license.

To restate the point in the affirmative, there are in fact a handful of cord blood-based products which are FDA legal, either by an NDA or a biological license.

Here is one such example approved via a biological license.

https://dailymed.nlm.nih.gov/dailymed/index.cfm

Of course, the company manufacturing this product has an FDA approved label, which is something that none of the products being sold to the private stem cell clinics have.

But beyond these handful of FDA approved or BLA licensed products, every other cord blood product on the market is considered illegal by the FDA, as they violate the FDA trifecta of misbranding, adulteration and introducing into interstate commerce an unapproved new drug.

So, what are the approved uses of cord blood?

Here is some language from the FDA’s web-site explaining the law from its page on cord blood.

“Approved Uses
Cord blood is approved only for use in “hematopoietic stem cell transplantation” procedures, which are done in patients with disorders affecting the hematopoietic (blood forming) system. Cord blood contains blood-forming stem cells that can be used in the treatment of patients with blood cancers such as leukemias and lymphomas, as well as certain disorders of the blood and immune systems, such as sickle cell disease and Wiskott-Aldrich syndrome.

* * * *
“Cord blood stored for use by a patient unrelated to the donor meets the legal definitions of both a “drug” and a “biological product.” Cord blood in this category must meet additional requirements and be licensed under a biologics license application, or be the subject of an investigational new drug application before use. The FDA requirements help to ensure that these products are safe and effective for their intended use.”

Here is the link to the FDA page:
https://www.fda.gov/ForConsumers/ConsumerUpdates/ucm405558.htm

How do the manufacturers of cord blood and UCSC’s try to get around the law? Or how do they try to convince their customers that what they’re selling is legal?

Sellers of cord blood and UCSC products argue the legality of their products by reference to the tissue regulations and specifically 21 CFR 1271.10 (a) (1)-(3). But that doesn’t work because they cannot meet the (4)(i) requirement of no systemic effect or metabolic activity. With a few notable exceptions, all stem cells work via a systemic effect or is dependent on metabolic activity (exceptions would include HCT/P’s for wound covering, fat transfer, or blood transplants for medical procedures, or to treat the above listed blood related diseases).

Here is a link to 21 CFE 1271.10

https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfCFR/CFRSearch.cfm?fr=1271.10

An FDA’s guidance document makes this clear, albeit indirectly. This is an excerpt from the FDA’s HCT/P guidance document for small firms:

“3. What are examples of some 361 HCT/Ps that meet the criteria in 21 CFR 1271.10(a)?
[meaning the facility only has to register and its products are not new drugs]
• Amniotic membrane when used alone or without added cells • Bone • Cartilage • Cornea • Fascia • Ligament • Pericardium • Peripheral or umbilical cord blood stem cells (for autologous use or use in a first or second degree blood relative) • Sclera • Skin • Tendon • Vascular graft • Heart valves • Dura mater • Reproductive cells and tissues (e.g., semen, oocytes, embryos)
All of the above are minimally manipulated, intended for homologous use only, and not combined with another article, with some exceptions.”

In other words, UCSC’s for autologous or first or second degree blood relatives are not considered drugs and are just regulated under tissue registry rules (part 361 referenced above). Otherwise, and that means all allogenic uses, are regulated as a drug and requires an IND, NDA or a biological license.

The clearest and most recent statement from the FDA (or maybe I’ve just buried the lead)

The most definitive FDA statement showing the illegality of allogeneic, non-FDA approved cord blood or UCSCs comes from its November 28, 2018 warning letter to Genetech concerning the cord blood product it manufactured for Liveyon, which product caused infections in at least 12 people. Here is an article about the recall of the product:

https://www.biospace.com/article/cdc-and-fda-conduct-investigations-into-umbilical-cord-stem-cell-products-that-infected-12-people-so-far-/

Here is the heart of the FDA’s warning letter:

“Specifically, the umbilical cord blood products fail to meet the criterion established by 21 CFR 1271.10(a)(2), that “The HCT/P is intended for homologous use only, as reflected by the labeling, advertising, or other indications of the manufacturer’s objective intent.” As noted above, the umbilical cord blood products are intended to treat a variety of orthopedic conditions. Because the umbilical cord blood products are not intended to perform the same basic function or functions of umbilical cord blood in the recipient as in the donor, such as forming and replenishing the lymphohematopoietic system, using the umbilical cord blood products to treat orthopedic conditions is not homologous use as defined in 21 CFR 1271.3(c).

In addition, the umbilical cord blood products fail to meet the criterion set forth in 21 CFR 1271.10(a)(4). Specifically, the products, manufactured from donated umbilical cord blood, are dependent on the metabolic activity of living cells for their primary function and are not for autologous use, allogeneic use in a first-degree or second-decree blood relative, or reproductive use. (emphasis added)

As stated above, because your products do not meet all the criteria in 21 CFR 1271.10(a), and Genetech does not qualify for any exception in 21 CFR 1271.15, the products are regulated as drugs under section 201(g) of the FD&C Act [21 U.S.C. 321(g)] and biological products as defined in section 351(i) of the PHS Act [42 U.S.C. 262(i)]. Please be advised that to lawfully market a drug that is a biological product, a valid biologics license must be in effect [42 U.S.C. 262(a)]. Such licenses are issued only after showing that the product is safe, pure, and potent. While in the development stage, such products may be distributed for clinical use in humans only if the sponsor has an investigational new drug application (IND) in effect as specified by FDA regulations [21 U.S.C. 355(i); 42 U.S.C. 262(a)(3); 21 CFR Part 312]. The umbilical cord blood products are not the subject of an approved biologics license application (BLA) nor is there an IND in effect. Based on this information, we have determined that your actions have violated the FD&C Act and the PHS Act.”

It’s a mouthful, but in short, Genetech’s cord blood product is an unapproved new drug and there was no biological license for it, making it illegal under federal law. There’s more in the warning letter about why the product is illegal, like the fact that the products are being produced in a facility which is NOT complaint with current good manufacturing or tissue practices (CGMP and CGTP), which makes the products adulterated, but that’s just shooting a dead horse.

Here is a pdf of the FDA’s warning letter to Genetech:

genetechwarningltr

So, what does this all mean practically for the patients receiving these treatments?

FYI: I’ve worked on the defense side of FDA criminal investigations of unapproved new drugs for upwards of thirty years.

I have never heard an OCI investigator (FDA office of criminal investigations) even suggest that a patient could be a target. The patients are the victims of the crime, duped by the scum-sucking purveyors of false hope, such is the mindset of the FDA OCI. So, there is zero chance you will get into trouble with the feds if you fall prey to these possible future federal prisoners.

Of course, you’ll be using a treatment which is not FDA approved or biologically licensed. More importantly, the product you’re taking has been produced in a facility which has not met the rigorous requirements of a drug approved or biological licensed manufacturing facility. Don’t be fooled by claims that the facility has an FDA tissue or bank facility registration (the above described part 361). That’s different and a lesser standard.

So, if you’re someone who would only take legal FDA products, then taking cord blood or UCSCs for the treatment of a disease where the product does not have FDA approval and was not produced in an FDA biologically licensed facility is not for you.

If, on the other hand, you don’t mind taking a treatment which the FDA hasn’t blessed, then you need to do a risk/benefit analysis after being properly informed. The point of this post is to advise you that despite what the clinic owner is telling you, or what the manufacturer is telling the clinic owner, the product you’re receiving is not FDA approved or biologically licensed and has not been manufactured in a facility which has met the FDA drug approval or biological license standards. With this information, you are better able to make an informed decision.

What does this mean for the UCSC clinics and the cord blood product manufacturers of non-FDA approved non-biologically licensed products?

The above is how the FDA views what you’re doing. Most of the time, the FDA gets it way when it decides to take on people who sell drugs which violate the FDA’s trifecta, but not always. (See e.g. chapters 2, 4 and 9 of the aforementioned Galileo’s Lawyer.)

Still, to relate one of my favorite quotes from Damon Runyon: “The race isn’t always to the swift, or the fight to the strong, but that’s the way to bet.” So, be careful (and lucky).

Rick Jaffe, Esq.
www.rickjaffeesquire.com
rickjaffeesquire@gmail.com

THE BEGINNING OF THE END OF THE FDA’S REGULATION OF AUTOLOGOUS STEM CELL TREATMENTS FOR ORTHOPEDIC USE

THE BEGINNING OF THE END OF THE FDA’S REGULATION OF AUTOLOGOUS STEM CELL TREATMENTS FOR ORTHOPEDIC USE

A little over a year ago, the FDA made public its final guidance documents in the stem cell field (HCT/P’s in FDA parlance). The documents were highly restrictive and all but eliminated the use of autologous stem cells outside of clinical trials. (I have written about this many, many times. Just scroll through some of my prior posts in the stem cell category on my home page). Apart from being wrong, my view has been that the FDA does not have the resources to eliminate private stem cell clinics.

More importantly, I predict that the standard of care is going to incorporate same day, autologous stem cell transplant way before there are completed clinical trials which shows drug level efficacy, irrespective of the FDA’s and the stem cell institutional opposition to so-called “unproven” stem cell treatment. I’ve been saying that HCT/P’s treatments for various orthopedic conditions will probably be the first such accepted use. Proof is now here!

A recent blog on the Niche laments the fact that the highly regarded and exceptional Swedish Medical Center (“SMC”) was now promoting autologous stem cell and PRP (Platelet-rich plasma) treatments for orthopedic conditions. https://ipscell.com/2019/02/swedish-medical-center/

Needless to say, these advertised uses fall on the wrong side of the FDA guidance documents. The post further laments the fact that this “is part of a bigger trend where more legit medical centers have begun selling regenerative medicine “treatments” that are still being developed.”

GAME, SET AND MATCH!

Now that SMC and a few other big players are doing it, the pressure will dramatically increase on other “legit” institutional players to offer similar treatments and do so in a more public way, via their web sites and promotional materials.

The six or seven hundred private stem cell clinics have no doubt been taking market share from the major orthopedic entities. The big places self-promote as providing cutting-edge, state-of-the-art, except that they haven’t been since the many of the major players have been slow to introduce HCT/P’s into their institutional practices. Market/competitive forces are not and will not allow that to continue. All the players are going to have to go all-in, or they will lose their competitive edge and be viewed as practicing last century’s medicine.

Right now the FDA’s blind eye to these big players can be justified by its statement in the guidance documents that it would give everyone three years to come into compliance except for the entities which create the greatest risk of harm (like the defendants in the two current FDA injunction lawsuits and the few others who have received warning letters in the last year).

There are two years left in the FDA’s grace period, but I predict that in that remaining time, “unproven” HCT/P use will increase in all areas, and will dramatically increase in the orthopedic area. Even now, but more so in two years, it will be too late for the FDA to try to reign in the orthopedists from providing HCT/P treatments to patients. The patient demand will be too great.

So what’s going to happen?

For sure: after the end of the three-year grace period, the orthopedists will continue to use HCT/P’s whether or not the use for any particular orthopedic condition has NDA drug approval.

The FDA will be forced to revisit its position, perhaps by a select committee of major hospital practitioners (not the lettered stem cell institutionalist organizations), perhaps via a revision to the draft guidance documents of what constitutes homologous use and more than minimal manipulation.

But here is the most likely scenario:

The FDA will simply post a notice that it will continue to exercise its enforcement discretion and not stop HCT/P use for all or most orthopedic conditions. I’d look for that to happen in at least one other HCT/P use as well. This way, the FDA can save face and still maintain its jurisdiction over these folks and their procedures.

In short, the fact that entities like the Swedish Medical Center and a few others are now advertising HCT/P treatments for orthopedic use means that such use will quickly become the standard of care and the practice of medicine, which will make these procedures untouchable by the FDA, notwithstanding the agency’s flawed guidance documents.

That’s my prediction anyway.

Rick Jaffe, Esq.
www.rickjaffeesquire.com
rickjaffeesquire@gmail.com

What Should Happen if a Stem Cell Clinic Harms Many Patients?

What Should Happen if a Stem Cell Clinic Harms Many Patients?

Here’s my core position: I support a patient’s access to his/her own stem cells for any use agreed to by the patient after proper informed consent which is not tainted by false or misleading advertising claims by the stem cell clinic.

My philosophical/public policy/constitutional thinking is that people do/should have a right to determine what happens to their own bodies, so long as that right doesn’t endanger public health or safety, or impinge on another’s protected rights. I don’t see why someone else or some government agency should be able to stop me from using my body parts as I and a licensed physician see fit. If I want to waste my money or endanger myself with unproven and even potentially harmful treatments, I think I should be able to do so. People make foolish decisions which are actually harmful, like smoking and drinking to excess. It’s their right, self-destructive as it may be.

Further, my experience of being involved with stem cell clinics and keeping my ear to the ground in the field tells me that autologous stem cell transplants almost never causes serious problems, if the treatment is administered by a competent physicians.

I think the few highly publicized stem cell blindness cases at the Florida stem cell operation was an outlier based on some incredibly poor judgement on the part of the clinic operators. The other infamous clinic/defendant in the FDA’s injunction actions, the California stem cell treatment group was accused of using a deadly vaccine toxin which could cause harm. I don’t know much about that their use of toxins, but I know is was part of a protocol for stage 4 cancer patients. And what I haven’t heard or read about was any actual harm to patients receiving that treatment. In fact, third or fourth hand and I’ve heard that the results are good. If so, too bad they’re not making more of that. That’s what I’d be advising them to do, if that’s really the case. (And as some of you might recall, I’ve got some experience with this. See chapters 1, 2 and 4 of Galileo’s Lawyer. http://rickjaffeesq.com/galileos-lawyer/

My sense of the relative safety of these procedures was confirmed by a recent published report which did a google search of all reported stem cell adverse events. I wrote about that study. Here is the link:
https://wp.me/p7pwQD-fd

Bottom line less that 40 reported serious adverse events, 11 or so deaths worldwide associated with stem cell treatment, one of which occurred in the U.S.

Of course, there could be and most likely have been serious adverse events not reported in the media, but still, the numbers of reported events seem to me incredible small based on the Knoefpler et al reported 700 plus stem cell clinics in the US alone.

All that being said,

recently I’ve been in contact with a couple of patients complaining they have been seriously harmed by a stem cell clinic.

I’m told that there are forty or more patients who experienced the same kind of injury resulting from stem cell treatments for Lyme disease. I’m not a doctor, but I have worked on a few Lyme cases for doctors, and it’s not obvious to this layman why stem cells alone would do any good for Lyme disease. And it’s possible that the harm is resulting may not be from negligent administration, but from the treatment itself causing MAST cell issues, exacerbating autoimmunity problems, and that would be a very bad thing for a Lyme patient.

The patients are starting to talk about a class action against the clinic (and hence the call to me). Supposedly, the FDA is looking into the clinic, and perhaps the state medical board. I think the FDA is too blunt of an instrument if there is demonstrable continuing actual harm. Rather, this should be initially and primarily a state board issue. I hear an investigation is underway, but if there are really several dozen patients who have been harmed, what the state board should do is start a summary suspension proceeding which stops the doctor administering the treatment immediately, pending a full board case.

The other disturbing aspect to this is that it could be that the physician isn’t even making the decisions in this case. The board needs to investigate that as well.

So even though I’m an advocate for private stem cell clinics, if you’re a Lyme patient contemplating any kind of stem cell treatment by a private stem cell clinic, here is my three-word advice: Don’t do it!

If you’ve taken the treatment and think you’ve been harmed, at least complain to your state board.

Rick Jaffe, Esq.
www.rickjaffe.com
rickjaffeesquire@gmail.com

Brief Memo on Advertising to Private Stem Cell Clinics (Especially the “Affiliates” of the two Defendant Organizations)

Brief Memo on Advertising to Private Stem Cell Clinics (Especially the “Affiliates” of the two Defendant Organizations)

The free pass given by the federal and state authorities on private stem cell clinic’s publicly professed exuberance (aka web site advertising) is coming to an end.

By early 2019, I expect both federal and some state regulators to bring lawsuits and/or announce settlements with more than a few private stem cell clinics, many of which are affiliates of the two stem cell networks which are currently defendants in the FDA injunction lawsuits in California and Florida.

Having looked over a web site or two, it might be time for you folks to rethink your marketing strategy. The authorities have a different and quite technical view of what constitutes false advertising and what constitutes substantiation of actual and implied claims. And don’t even get me started on their view on implied claims. It’s not to be believed.

It’s the end of the year and now would be a good time to implement a correction plan for advertising which is likely to be viewed by the authorities as deceptive trade practices, for a couple reasons. First, of course it’s always to better to comply with what the authorities think is the law, which is better than having to duke-it-out with the authorities in an injunction action brought by the FDA/FTC or the state’s attorney general office, because it’s not really a fair fight. There might be arguments to be made in defense of some commonly made stem cell claims. However, per the above, the best choice is not to have to make them.

Second, there could be medical board implications for physicians who consent to or have a judicial finding of false advertising. That opens-up a whole other front, and who needs that!

In short, now is a good time.

Rick Jaffe, Esq.
www.rickjaffeesquire.com
rickjaffeesquire@gmail.com

Some Perspective on the California Medical Board’s “task force” on Stem Cell Clinics

Some Perspective on the California Medical Board’s “task force” on Stem Cell Clinics

A few days ago, the big dog blogged that a San Diego TV station was reporting that the Medical Board of California (MBC) has announced its intention to form a task force to “investigate” private stem cell clinics, presumably following the Federation of State Medical Board’s (Federation) report on the subject.

Here is the post:
https://ipscell.com/2018/11/medical-board-of-california-task-force-to-investigate-stem-cell-clinics/

The intended or unintended implication is that all these clinics are about to be shut down by the MBC. But let’s take a breath.

What effect does this MBC proposed action actually have?

Short term: None. Task forces take time, even non-government task forces like the Federation’s stem cell task force took a year, and all it did was produce a relatively benign report.

It’s way more complicated when a state agency wants to study something, because the end result could change the law, create a new regulation or prompt agency action. Implementing a state agency’s task force’s recommendations requires either a new statute passed by the legislature, or an agency approved regulation, policy statement or guideline (like the compassionate use medical marijuana guideline). Anything substantively new by a state agency requires a lengthy administrative process involving input from the stakeholders and the public at large, through public comment and/or hearings. And that takes a lot of time and effort.

So, like I said, in the short term – say a year or eighteen months (at the very least) – I don’t see any change in the MBC’s practices resulting from its announcement that it will be setting up a task force to study/deal with the issue.

What could the MBC do after studying the issue?

A possible answer might come from the Federation’s 11 recommendations contained its task force report.

(Here is a pdf of the entire task force report. The recommendations start on page 10)

fsmb-stem-cell-workgroup-report[1]

The Federation’s first and main recommendation

The Federation’s first and central recommendation relates to the core issue in the private stem cell clinic model, namely the lack of clinical trial evidence supporting the efficacy of stem cell intervention for the conditions promoted/treated.

The Federation’s recommendation relating to this core issue is that there be a “appropriate rationale” or a “basis in theory” to use the “unproven” therapy and that unproven stem cell therapy should only be given when “proven treatment modalities have been exhausted.”

There are many facets and complexities to this recommendation. For example, the notion of “proven” modalities is a vast oversimplification of the state of medical knowledge in many serious diseases. Many “proven modalities” are not curative. For example, many cancer chemotherapeutic agents are only “proven” to extend median survival by a clinically insignificant period of time (like six to eight weeks), or provide no increased survival, but only have a proven palliative benefit. (Don’t even get me started about how cytotoxic chemotherapy gets approved based on evidence of palliative benefit.) Risperdal may be a standard of care treatment for autism, but it’s not a cure, it just suppresses some of the symptoms (and usually causes side effects as bad or worse than the behavior it’s meant to supress).

Nonetheless, in some sense, the Federation’s recommendation that “unproven” stem cell therapy only be used after proven modalities have been exhausted will be easy to satisfy by the private stem cell industry. Most of the patients who go to private stem cell clinics have incurable chronic conditions or fatal diseases which are refractory to other forms of treatment. There is no cure for MS or autism, and many MS patients and some autistic kids receive stem cell treatments for their conditions. Anecdotal evidence and solid theory supported by pre-clinical studies about how stem cells can affect some of these serious and terminal conditions likely supply the rationale for treatment under the Federation’s recommendation.

Many of the Federation’s other recommendations are innocuous, like raising awareness among physicians about the state of the law on stem cells, making sure physicians and patients engage in “shared decision-making,” making sure physicians don’t charge excessive fees (good luck with that, since boards don’t normally get involved in the cost of medical services).

There is a recommendation that medical boards review stem cell advertising claims and pursue false advertising physicians. That might be a good idea, but probably not practical since most boards are underfunded and investigations are complaint driven. There are not yet board investigative departments which search out false advertising by physicians. Maybe there should be, but I just don’t think that’s going to happen. So I think anti-private stem cell clinic forces are going to have to find another way to have the boards go after the stem cell advertising doctors.

An obvious recommendation was that the medical boards monitor FDA warning letters and investigate those involving “unscrupulous and unprofessional practices” relating to providing stem cells. The problem, as I’ve oft stated in prior posts, is that the the FDA doesn’t have the resources to do more than a couple of warning letters in the stem cell field in a given year. So, if the anti-private stem cell folks were looking to this recommendation to dramatically curtail private stem cell clinics, they will likely be disappointed and will have to figure out a work-around.

In short, my opinion is that the Federation’s recommendations, even if implemented in toto by the MBC, are not likely to slow down the proliferation of the private stem cell clinics. While there might be some things which the MBC could do to stop or slow them down in California, it’s going to have to do more than just adopt the Federation’s recommendations to get the job done.

Like what you ask?

Well, that’s not my job, so I’ll let the smart and competent people working at the Medical Board and the Attorney General’s office figure out what they can and should do to implement its task force’s recommendations. However, that will be many moons from now, and that is a long time in the stem cell world. By that time, I think other things are going to happen, both to the good and bad in terms of regulatory enforcement and developments in standard of care.

Rick Jaffe, Esq.
www.rickjaffe.com
rickjaffesquire@gmail.com

Private stem cell clinics should start worrying about some new regulatory players

Private stem cell clinics should start worrying about some new regulatory players

Up until very recently, the FDA has basically been the sole regulatory threat to the private/for-profit stem cell clinics, via published guidance documents, site inspections, warning letters and the recent federal civil injunction cases against the two biggest stem cell operations.

See my posts about the status of these cases at:
http://rickjaffeesq.com/2018/09/26/update-on-fda-injunction-cases/

As an aside

It’s no coincidence that the defendants in both of these injunction cases have many dozens of so-called “affiliate” stem cell clinics throughout the country. Both operations offer training, start-up expertise, as well as sell supplies and equipment to the affiliates. Creating an almost McDonald’s-like business model for the delivery of what the FDA contends is illegal stem cells has to make the FDA very unhappy. It’s going to be interesting to see what happens to these affiliates after the conclusion of these two cases, (but more about that later).

Apart from the FDA, some new regulator/players have recently surfaced. The FTC recently hit one stem cell clinic with a huge fine. The FTC regulates commercial advertising, and I would expect it to get more involved in the stem cell field for two reasons: First the FDA doesn’t have the resources to control/eliminate the private stem cell field. It takes too long and it’s too manpower intensive to go through the process of site inspection, warning letter and injunction lawsuits. They are just too many clinics out there. In contrast, all the FTC has to do is review web sites from the comfort of its local offices, send out letters requesting adequate substaniation for the claims and implied claims, and when it doesn’t show up, swing its big regulatory stick.

Second, to my mind, the real problem in the private stem cell field is not actual danger/harm of the procedure. As I explained in another post, there are surprisingly few serious adverse events from stem cell transplants.

See: http://rickjaffeesq.com/2018/08/09/some-perspective-on-private-stem-cell-clinics-and-the-fdas-response/

The real problem is the unsupported advertising claims made by some of the clinics. But commercial advertising is not really the FDA’s bailiwick. Furthermore, I think the FDA’s regulatory jurisdiction over any autologous, same day surgical procedure is questionable under the existing regulations and for public policy reasons, and its interpretation of the regulations are unclear, and not in accordance with scientific and medical practice realities. Under the right set of circumstances, I think the courts would give the FDA some pushback on its assertion of jurisdiction over these procedures and its interpretation of the regulations, but unfortunately, the two existing lawsuits are not the right vehicles to make the case.

Be that as it may, the FDA is still fundamentally ill-suited to be the sole or even the primary regulatory authority reigning in the stem cell wild west, (which as I continue to argue, is or should be primarily a state law medical practice issue). I predict that some new players will publicly surface soon, and that would be state agencies, particularly in the big stem cell states like California and New York (and probably Florida as well). It’s already quietly happening now in California and New York. I can’t say much publicly about either state because of ongoing matters, but clinics in those two states should watch out! What I can say is that I expect some states to scrutinize the claims made by the private stem cell clinics, and see how they line-up with state law, and if they don’t, then I would expect to see some state agency press releases about settlements or filed lawsuits. Some of these settlements or lawsuits may impact the clinic owners beyond the four corners of the state action.

Circling back to the FDA’s two pending injunction cases and the “affiliates” of the defendants, has anyone noticed that in the complaints, the FDA seems to be lumping the affiliates together with the named defendants? What’s that about? I’ve got my suspicions, but we’ll have to wait to see what happens after after the district court judges issue the injunctions.

So here is my prediction about the stem cell field in 2019

Between the two federal injunction cases which I expect to be resolved mid-2019, the regulatory responses resulting therefrom, and the new regulatory players who will surface in the next few months, the stem cell regulatory and enforcement landscape this time next year is going to look very different and more challenging to these clinics than it is right now.

Rick Jaffe, Esq.
www.rickjaffe.com
rickjaffeesquire@gmail.com

The grass is still growing ever so slowly in the FDA’s injunction cases against U.S. and California Stem Cell Clinics

The grass is still growing ever so slowly in the FDA’s injunction cases against U.S. and California Stem Cell Clinics

Since my last update about these cases in early August, not much has happened, which is to be expected in federal civil litigation. Nonetheless, here is an update.

Let’s start with what hasn’t happened

1. There has been no announced agreement in either case that the defendants have stopped treating patients with their SVF, stem cell therapy which the FDA claims are unapproved new drugs, adulterated and misbranded, pending the final decision by the judges in these injunction actions.

2 The FDA hasn’t filed a motion for a preliminary injunction against either company to stop them from treating patients until the judges’ final rulings.

The FDA sure isn’t litigating these cases like these clinics are a big public threat. There are a few well-publicized cases of harm from U.S. Stem Cells patients, and there is much made of the fact that California group was using a dangerous toxic substance in processing their “drug” product. But as I’ve said in some previous posts, the FDA has bigger fish to fry.

See my post at:

http://www.rickjaffeesq.com/2018/08/01/update-on-the-fdas-stem-cell-injunction-cases”>http://www.rickjaffeesq.com/2018/08/01/update-on-the-fdas-stem-cell-injunction-cases”>http://www.rickjaffeesq.com/2018/08/01/update-on-the-fdas-stem-cell-injunction-cases

Of course, it’s a complicated subject for a federal judge, and maybe the FDA is worried about losing in the abbreviated hearing process of a preliminary injunction motion. Maybe the thinking is “do it right and take your time.” If so, I can’t argue with it.

Here is what has happened

U.S. Stem Cell

The defendants filed an answer in August. It largely parallel’s the answer in the California case, which isn’t surprising since the same big firm is lead counsel in both cases. Here is the Answer:

09261800

There is one big difference: U.S. Stem Cell’s answer contains a demand for “a jury trial as permitted by law.”

No such request was contained in the California Stem Cell Treatment answer. Getting the case away from a judge and into a jury’s hands would be a good thing for a defendant in this type of case, so did the California lawyers miss an opportunity?

I don’t think so. Injunction cases aren’t decided by juries; they are decided by judges. I think the Florida lawyers just tossed out a jury request and the docket just mechanically picked it up and the mechanical/automated software spit out the jury trial forms deadline. My guess and prediction is that down the road the jury trial issue will be addressed and rejected by the judge, even if the case gets that far.

The case is set for trial during a two week period starting June 10, 2019.

The more relevant deadline is March 11, 2019, which is the summary judgment motion deadline. Seems a safe bet that the FDA will file a summary judgement motion for a final judgment. (FYI: That’s how the Regenerative Sciences case was resolved). The feds will do some discovery, nail down via admissions and depositions what the company does and doesn’t do – most notably, being cGMP compliant – which establishes adulteration. The feds will get in admissible form the label instructions for use, which establishes misbranding, and obtain admissions and deposition testimony of the facts of how the product is processed, and how/for what indications it’s being used, which should establish non-compliance with the main regulatory requirements for drug status, i.e., more than minimal manipulation and non-homologous use, (at least under the FDA guidance documents.)

With those facts established in admissible form in discovery, there probably won’t be any factual issues to be tried by the judge (or jury). That makes the case amenable to resolution via summary judgement.

The defenses challenge is to find a disputed issue of fact on which the judge has to hear factual testimony from the parties at a trial. In this case, it will be a challenge, but there are some possibilities. The defense has smart lawyers and will figure it out, if there’s something to be figured out. And who knows, they might even come up with a legal basis to move the case sideways.

I’d look to have the defense seek a delay to filing papers in opposition to the summary judgment motion, figure a month. (Anything beyond that would probably interfere with the early June trial setting.) That would make a decision on the summary judgement motion in May. That’s how and when I’d see this case wrapping-up unless defense counsel figures out a way to derail or slow down the proceedings. Speaking as a defense lawyer, sometimes delay is the best you can hope for, because who knows what the future will bring. This point is aptly made in a fable I related at the beginning of my chapter on cancer doctor Stanislaw Burzynski’s several decades war with the FDA and the Texas medical board in Galileo’s Lawyer. It’s a good story. Here it is for those who have an immediate need for a smile.

mendal

Sometimes horses learn to fly, and a year or two could present an entirely new regulatory reality.

California Stem Cell

The parties filed a joint preliminary statement, which sets forth the claims and defenses, lists the witnesses, and the documents (and of course it can be amended as more information becomes available through discovery), and sets forth a proposed case schedule. The parties are looking at a trial in late July to early August, subject to the Court’s availability. They are proposing a motion deadline of late May. Here is the joint statement. castemcelljtdiscovery

There is a scheduling conference with the judge on Tuesday, October 1, 2018, at which point proposed deadlines will be adopted or changed.

The legal issues related in the joint statement are as expected and as discussed in prior posts, namely whether the defendants’ procedure is an unapproved new drug or not regulated by the FDA because it’s a same day surgical procedure, with not more than minimally manipulated autologous cells, given for a homologous use and all the practice of medicine and lack of jurisdiction stuff thrown in. The relevant trial documents are the 483 inspectional observations, communications between the parties and the final guidance documents pertaining to these issues, as well as patient complaints. Predictably, the defense seems to want to have some patients testify, and I’m always in favor of that. Look to the government to seek to stop that, because hey, that’s how they roll.

Yawn. I warned you it’s like watching grass grow.

Since the discovery process does not normally result in the publishing or making public, documents or other information revealed in discovery, I think nothing exciting is going to happen in these two cases (or nothing we will hear about) until summary judgement papers are filed (unless the lawyers come up with an interesting delay strategy). The Florida judge did refer the case out to mediation, but that’s a non-starter. U.S. Stem Cell isn’t stopping, and the FDA isn’t going away until it stops the Florida operation.

So any more news from the FDA in the stem cell field will be about other lawsuits or collateral things, like its cracking down on private stem cell clinics using clinicaltrials.gov to promote their clinics via patient funded clinical trials, per a recent post by the big dawg. https://ipscell.com/2018/09/fda-outlines-potential-crackdown-on-clinicaltrials-gov-offenders/

(And for the record, I don’t have a problem with the feds restricting clinicaltrials.gov to IND clinical trials, or at the very least, requiring disclosure that the trials are not FDA approved and that the “participants” pay for the treatment. That seems fair and reasonable.

I’m also very much in favor of the private stem cell clinics providing accurate and complete information about their operations, including that their treatments are not FDA approved, are not considered to be safe and effective by institutional authority, and that anecdotal evidence is not considered scientifically reliable, or even disclosing that there is no government review or verification that the statements made by the clinics on their web sites are true (like what the supplement manufacturers have to state). And I also don’t have a problem with the FDA or the FTC going after any health care facility which puts out materially false information to fraudulently induce patients to undergo the treatment. I’m all about providing the patients with accurate and complete information and let them make an informed choice, because it’s their bodies and their body parts we’re talking about).

So in sum about the status of the FDA’s two pending injunction cases: the millstones (wheels) of justice grind exceeding slow . . . . (you know the rest).

Rick Jaffe, Esq.
www.rickjaffe.com
rickjaffeesquire@gmail.com

For those who don’t: “The wheels of justice grind exceeding slow, but they grind exceedingly fine.” The odds favor the millstone over Mendal in these cases, so per Damon Runyon, “The fight isn’t always to the strong, or the race to the swift, but that’s the way to bet.”

RAJ

King Canute and why the FDA will never stop the private stem cell clinics

King Canute and why the FDA will never stop the private stem cell clinics

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But first, two predictions:

Prediction 1

The FDA will win its injunction cases against US Stem Cell, and the California Stem Cell Treatment Centers, and obviously these injunction decisions will be bad precedent for the private stem cell industry.

Prediction 2 (and the big one)

The injunction decisions, even after the Court of Appeals affirms both injunctions -which will happen – will not stop or even slow down the explosive growth of the private clinic stem cell industry.

And the lesson of King Canute tells us why

Seeing the FDA’s relatively timid efforts to date reminds me of King Canute putting his throne at the sea’s edge and commanding the incoming tide to stop. (It didn’t.)

The FDA will have about as much success as King Canute had. (Of course, if the king sat by the beach for 24 hours, tides being what they are, it might have appeared that the sea was listening to him for some portion of the day. Maybe that’s taking the analogy too far, or maybe not.)

For sure, the FDA is going to win its current injunction actions in a relatively short period of time, (a year or eighteen months ish) in part because these cases are being defended by the same big firm, and big firms are masters of linear defense thinking. In cases like this, linear thinking will lead to permanent injunctions.

But these two cases aside, the FDA’s problem is that even now there are just too many clinics for too few FDA resources. It is estimated that there are around six to seven hundred clinics providing some kind of stem cell treatment. I think there are more, because some are flying under the radar screen, and the counting methodology is based on Internet searches.

To understand why the FDA’s task is impossible, consider what’s involved in getting to the place the FDA is in these two injunction cases.

Each FDA case starts with a site visit by multiple (usually three) FDA inspectors (usually called “consumer safety officers”). They spend anywhere from one to three weeks at the clinic. At the end of the visit, the facility receives a 483 inspectional observations report. Then there is a lengthy administrative process: a response by the clinic, consideration of the response by the FDA. If the response is inadequate, (and it always is), a warning letter is sent, but that will be many, many months after the site visit, because a warning letter involves much internal review from a couple different levels of employees and divisions.

Then the clinic has an opportunity to respond to the warning letter. Then there is a further administrative/bureaucratic process for reviewing the clinic’s response to the warning letter. Assuming, (as is always the case), the clinic’s response is inadequate, the FDA has to decide what to do about it, and that’s a further administrative review process.

If the FDA decides to proceed with litigation, it involves its counsel’s office and then the civil division of the US Attorney’s Office in the district in which the stem cell clinic operates.

The US Attorneys’ Office acts as the lawyer for the FDA which is the client. This involves another layer of bureaucracy. US Attorneys’ Offices are usually very busy places, and the lawyers in the civil division usually have big case dockets involving a wide variety of federal matters. They are a very smart and experienced bunch of people, but they are overworked, have to deal with many demanding federal judges and demanding clients who think their agency’s business and the agent’s case is the most important thing in the world.

The FDA’s practical problem here is that most US Attorneys’ Offices throughout the country have not dealt with stem cell cases, so there is some learning curve, which eats up more time. For sure, the US Attorneys’ Offices are aided by the FDA’s counsel’s office, and the FDA investigators, but still, it’s more inefficient than say federal administrative agency cases which are filed in the District of Columbia District Court, which handles many federal administrative cases and the DC US Attorneys’ Office which works on many cases in the same fields involving the same legal issues.

Consider that the two clinics/networks facing injunctions are notorious and have been known by the FDA for years. And yes, the FDA has also sent a few other warning letters to stem cell clinics over the past few years, but it’s not a big number relative to the number of clinics out there. Even if the feds up their game, and file more cases which are in the pipeline, what’s that number going to be? Five, seven? It’s not going to be 50 or even 20, given all of the above and the fact that CBER only has around 1100 total employees. (By comparison CDER (the drug division) has over 4,000 employees.)

Of course, the FDA has graciously said that it’s going to give these clinics three years to come in compliance, and is only now going after the most egregious violators who pose the greatest risk to patients.

That’s a very laudable position, but it reminds me of Siddhartha’s statement “when you have nothing to eat, the best thing to do is to fast.”

Apart from the sheer number of clinics, here are some other reasons why the FDA won’t be able to stop the tide of stem cell clinics:

2. The stuff works, and too many people are being helped

Not in all conditions or in all people, but basically I think the market has spoken and continues to speak by virtue of the fact that there are so many clinics out there and so many more coming online. You can’t fool all the people all the time.

The alternative is that everyone who gets stem cells is a moron, especially those who keep going back for retreatment, like MS patients. The MS stem cell patients are obviously delusional because they don’t understand that the clinical benefit they supposedly achieved every time they do their stem cell treatments is happenstantial/just a temporal correlation with their treatments and not caused by it, or is a placebo effect.

But here’s the thing, most of the MS stem cell patients have tried and failed multiple prior conventional therapies. So obviously these stem cell clinics have just happened to discover a better acting placebo. Ultimately, the bed rock mantra from the stem cell scientific community is, wait for it, “It’s just anecdotal evidence and not science.”

But I digress.

I think stem cells treatment is like medical marijuana. Regardless of all the studies showing that drug abusers suffer side effects and brain damage, there are so many people who have benefited from medical marijuana that the feds have been unable to stop the explosive growth of the use of medical marijuana, and many states have passed laws allowing it, despite its continued illegality under federal law.

I think we are seeing the same thing in stem cells, but to a lesser degree and we’re earlier in the cycle because 1. It’s a much more recently developed therapy than cannabis, 2. You have to go to a medical clinic to get stem cells, where it’s possible to get cannabis without a physician’s recommendation. 3. Stem cells are of course a quantum level more expensive than medical marijuana.

But it is the same societal forces at work. Ultimately, over time people know when something can benefit them. I think that’s one of the benefits of the internet; it’s all out there, the good and the bad. Obviously, this is a heresy for scientists but, respectfully, the scientist and the scientist policymakers on this issue are like King Canute thinking that they can affect the stem cell tide with all their unproven and harm talk. And speaking of harm:

3. There’s not enough harm from stem cell treatments

In all the years that stem cells have been given outside of clinical trials, there just isn’t enough harm to create the necessary groundswell of support to stop it.
In my last post, I discussed the publicly reported serious adverse events around the world from stem cell treatments.

Here is that post:

rickjaffeesq.com/2018/08/09/some-perspective-on-private-stem-cell-clinics-and-the-fdas-response/

Here are the numbers: one US death, 10 or 11 other deaths throughout the world, and a total of less than 40 serious adverse events, in the world from the presumed tens of thousands of people who have received stem cell treatments. Those are extremely low numbers for a medical intervention.

Contrast that to over 42,000 deaths from opioid abuse in 2016. After I did that post, the 2017 numbers came out and they are even worse, over 70,000 deaths, the large majority of which were from FDA opioids.

Yes, the institutional stem cell industry and its spokesmen are decrying the venality, villainy and danger of these stem cells clinics, but their own numbers show that it’s not all that dangerous, at least compared to real societal drug problems like the opioid crises.

4. There’s too much money to be made in the field, and it’s quite easy for physicians (and others) to get into the field

Stem cell establishment folk will argue that money/greed is the primary reason why the FDA might have trouble eliminating the private stem cell clinics. No doubt there is a great deal of money to be made in the field. And greed often is a factor in big bucks enterprises. The treatments are expensive ($6,000 to $18,000). It’s a high margin business. Best of all, it’s a strictly cash business, meaning no insurance, and that’s as good as it gets for a health care practitioner, just ask the cosmetic surgeons. So for sure, the money is an important reason why many clinics won’t be scared off by two injunction cases, even when they result in permanent injunction orders.

In addition, there are models out there which are not physician driven, witness the new chiropractor based stem cell model. That is only one of several models which has opened the field up to non-physicians. Good luck trying to stop it King Canute. I’m not making a judgment here, just an observation and a prediction.

Reason Number 5: The FDA does wholesale well, but this is retail and that’s a whole different ballgame

The FDA primarily regulates pharmaceutical companies making drugs and vaccines, device manufacturers, and it also regulates the nation’s blood supply. It does a reasonable job of that given its limited resources. (And by the way, regulating the nation’s blood supply is a really, really important job for CBER, which is the FDA division which also regulates tissue based products and entities like stem cell clinics. Does anyone think it would be a good idea to transfer a bunch of FDA personal from protecting our blood supply, which affects everyone in the country going under the knife or who gets a transfusion, to shut down a few more stem cell clinics?)

The thing about trying to regulate retail clinics as drug manufactures is that the drug source is different; it walks in with the patients. The technology necessary to process the “drug” is relatively simple and cheap. Moreover, the training necessary to administer the drug/biologic is easily obtained, relatively cheap and quick (many would say much too quick, but that’s another topic and another one of my stories).

In market and economic terms, this is a low barriers to entry business model, and especially, to reiterate, because the patient comes in with his/her own drug supply and the clinic just processes it. This is just another part of the tidal forces facing the FDA.

And the last reason why the FDA will never stop the private stem cell clinics:

They are a moving target, and the target is starting to move on from fat

Readers of my book will know that I was involved in the original iteration of private stem cells business model, namely umbilical cord blood from blood banks. (See chapter 9 of Galileo’s Lawyer about the first stem cell criminal investigation https://www.amazon.com/Galileos-Lawyer-Alternative-Complementary-Experimental/dp/0980118301/ )

Autologous from fat is the second, much more popular model, and as readers of my posts know, I was involved in the beginning of that too.

But the field has been reading the tea leaves, meaning the warning letters and the guidance documents administrative process, and it is starting to move on. The new iteration is autologous bone marrow based products, which are claimed to be exempt under 21 CFR 1271.15. (I haven’t looked hard at the issue yet, but I expect to in the future, for one reason or another.)

It took the FDA 12 years to publish final autologous fat guidance documents. It will likely take the FDA less time to work through the bone marrow model, but some of these clinics are going to slip through the cracks, either because of limited FDA resources, low risk of harm, or because they actually do meet the 1271.15 exemption criteria (essentially, homologous use, not more than minimally manipulated, and provided in the same surgical procedure).

My prediction is that the better, smarter, more informed clinics will end up being in compliance, others will not.

But one way or the other, we’re going to go through the same process as what happened with autologous fat derived stem cells, and that’s going to take a significant amount of time.
And so we start again.

Rick Jaffe, Esq.
www.rickjaffe.com
rickjaffeesquire@gmail.com

Post Script
In case some of you never heard of King Canute, he was King of Denmark, England and Norway in the early 11th century. There is an apocryphal story about him putting his throne at the edge of the sea, ordering the incoming tide to stop before the water got to the throne. A common misunderstanding was that his hubris led him to think that he was so powerful that he could stop the tide from coming in. Admittedly, I was one of those so misinformed until I did some deep research (ok, Wikipedia).

Turns out the actual version of the apocryphal story (assuming that such a thing matters in apocryphal stories) is that he knew he couldn’t affect the tides, and that only God could, but he did it to shut-up his retinue who thought he was all powerful.

If so, then maybe the whole FDA analogy/metaphor to King Canute doesn’t even apply (or maybe it still does).
RAJ