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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