INSIGHT REPORT
Vol 8 #2

2005

  mdi Consultants’

INSIGHT REPORT


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Insight Report Vol.8  No.2   

FDA Affidavits
“To sign or not to sign” has only one answer -
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YOU NEVER SIGN ! ! !

An Affidavit is defined as 'a sworn statement, and/or an official declaration.'

 Would you make a sworn statement or an official declaration concerning a possible criminal action that you may have been involved in without having your lawyer read it?

Then why is it so hard for company officials to just say, “NO” when the FDA asks them to read and sign an affidavit concerning a possible violation found at their company?

Whether it is a simple “sample collection” or part of a GMP audit and the FDA is picking up records, the FDA will try to get a company official (the highest level official at the company at the time is the most appropriate), to sign an official declaration or a sworn statement or as the FDA calls it an “Affidavit” to document that the records that the FDA investigator is collecting are from that firm and how they relate to the documents.

Over and over again, we try to make company officials understand that signing an FDA affidavit is a major mistake. Yes, we know that when you read the affidavit (that is actually prepared by the investigator) it often appears as information that the investigator already had and it usually only reiterates what was already discussed. But, signing an affidavit only provides benefit to one party and that is the Agency. It can only cause you potential problems. There are no benefits for the person or company who signs this document.

Let’s take a look at how the FDA views investigational affidavits and how they train the investigators on getting companies to sign these very incriminating documents.

FDA’s guidance to the investigator on getting a signed affidavit

The FDA provides a guidance document to the investigators on how to prepare an Affidavit and how they are supposed to get (or trick) the company official to sign it and/or confirm that it was read and understood. Yes, the FDA has taken the time and effort to train their investigators in how to prepare and get the companies to sign these official documents. This training and explanation for Affidavits is in the FDA IOM (Inspector’s Operations Manual). As you will see the FDA takes the affidavit preparation and signing to be a very important part of any investigation or inspection.

The IOM states the following:

“Statements on various affidavit forms may be obtained from persons who have dealt somehow with the goods sampled, know material facts relating to the movement of the goods, and/or to events affecting their condition. Such facts, recorded in writing and signed by the person who can testify in court to those facts, can be used either to establish federal jurisdiction or fix the responsibility for a violation. The statement may identify documents proving I.S. movement of goods sampled; it may name the person who could testify to the identity of the goods sampled, and it may certify the sample collected is from the lot of goods covered by the records.

The IOM goes on to state:

General considerations for all affidavits
"You should have the affiant read the statement and make necessary corrections before signing the affidavit. Mistakes, corrected, initialed and numbered by the affiant are an indication he/she has read and understood the statement. A handwritten statement by the affiant, declaring he/she read and understood the statement is a valuable tool to counter the possibility the affiant might later claim ignorance of what was signed.”

Let’s stop here. Did you read what the FDA’s IOM states concerning why they want the affiant to sign the affidavit and declare that it was read and understood -

“it is a valuable tool to counter the possibility the affiant might later claim ignorance of what was signed.”

In my opinion, this statement appears to be ominous.
Additionally the IOM goes on to state:

“Before the individual signs the statement, ask him/her to affirm the affidavit is true and accurate. A statement to that effect can also be added at the conclusion of the affidavit.

You should only sign the affidavit AFTER the affiant has signed it. The wording above your signature is, "Subscribed and sworn to before me at ***" Subscribed , in this context means to attest by signing. Thus, your signature is attesting to the fact that the affiant has read and understood the statement and has confirmed that the statement is the truth. You MUST NOT sign an affidavit until after the affiant swears (affirms) to you the written statement he/she has signed is true. If you provide a copy of the affidavit to the affiant, you should keep the original affidavit since the original is an official FDA document.

As you can see, that the FDA is possibly planning to use this document for more than just a statement of fact by you concerning something that the FDA collected or found in your documents during an inspection.’

Now we get to the section explaining to the investigator what to do in the event that the affiant refuses to sign the affidavit. You will find this very interesting.

Refusal to Sign the Affidavit - Even if it is apparent the affiant will refuse to sign a statement setting forth the facts he/she has revealed, the statement should be prepared as described above. Either read the statement to the affiant or have him/her read it. Request the affiant to correct and initial any errors in his/her own handwriting. Elicit from him/her an acknowledgement the statement is true and correct. Ask him/her to write at bottom of the statement "I have read this statement and it is true, but I am not signing it because..." in his/her own handwriting.

The preceding statement shows that this affidavit must be considered a very important document if the FDA has such detailed instructions on how to deal with company officials who refuses to sign this document. It is incredible that the FDA would try to trick someone to sign or attest to something that you may think is very innocent. But it seems apparent that the FDA believes that this is a critical and official document and they have worked hard to figure out ways to get you to attest to the validity of its content. Maybe you should give serious thought before deciding to sign such a document in the future.

The IOM continues to instruct the investigator in what to do in the event they are faced with a refusal for acknowledging the affidavit:

Failing that, declare at the bottom of the affidavit that you recorded the facts above as the affiant revealed them, that the affiant read the statement, and avowed the statement to be true. Sign and date the statement in the body of the document; only sign in the signature block if the affiant signs the affidavit.

The IOM then explains how to deal with informants and affidavits:

Confidential Informants - You should take special precautions when obtaining an affidavit from a confidential informant, the affiant may be reluctant to sign a statement, which reveals his or her identity.

So, getting back to the original questions, “Should you sign or not sign an FDA affidavit when it is presented to you by the investigator?” There is only one answer, “Do not sign!” Affidavits do not provide the signer any benefits and could be very detrimental in the long run.

If you have any questions on FDA Affidavits or any stories on what the tactics that the FDA investigators tried to use to get you to sign the Affidavit, please email us at info@mdiconsultants.com .


Next Insight Report - The next Insight Report - “Warning Letters review - FDA’s Present Policies”


If you have any comments on these INSIGHTS we hope that you let us hear them. If you have any of your own INSIGHTS that you feel would be of value to other companies, we would be pleased to hear from you and to discuss them with you and if you allow, we would even put them up on this site for others to learn from.
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    Copyright 2005 mdi Consultants, Inc.

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