FDA Law Alert – November 2019

November 6, 2019

Hyman, Phelps & McNamara, P.C. is pleased to publish the third installment of the FDA Law Alert, a quarterly newsletter highlighting key postings from our nationally acclaimed FDA Law Blog.  Please subscribe to the FDA Law Blog to receive contemporaneous posts on government regulatory and enforcement activities affecting the broad cross-section of FDA-regulated industry.   As the largest dedicated FDA law firm, we are happy to help you or your clients navigate the nuances of the laws and regulations affecting them.


Patient Engagement

  • Patient-Focused Drug Development: James E. Valentine highlights FDA’s guidance on Patient-Focused Drug Development, the second in a series of four guidance documents, which provides approaches to identifying what is most important to patients with respect to their experience as it relates to burden of disease and burden of treatment. Valentine’s post outlines FDA’s new recommendations for quantitative and qualitative research, considerations for specific populations, and the use of social media to elicit patient information.
  • Patient Engagement in Clinical Trials: Véronique Li, Larry J. Bauer and Sarah Wicks write about FDA’s Draft Guidance on Patient Engagement in the Design and Conduct of Medical Device Clinical Investigations. The guidance delineates between patients, study/research participants and patient advisors, noting that early input from patient advisors could lead to quicker study/research participant recruitment, enrollment and study completion, streamlined data collection and more relevant data outcomes that are important to patients.

Medical Devices

  • Government Investigations: The District of Minnesota required a defendant in a False Claims Act case to turn over to a qui tam relator the presentations the company had made to the government prior to the government’s decision to decline the matter. This post by Rachael E. Hunt, Serra J. Schlanger and Anne K. Walsh discusses the arguments made by Boston Scientific Corporation to protect the materials from disclosure (which ultimately were rejected) and the effect this holding may have on other proceedings to obtain defendants’ presentations.
  • Medical Software Policies and Guidance: FDA issued a series of guidance documents relating to medical software this quarter. Véronique Li describes changes to existing medical software policies resulting from the 21st Century Cures Act, Adrienne R. Lenz details FDA’s second draft guidance for clinical decision support software, and Allyson B. Mullen writes about CDRH’s draft guidance on the Safer Technologies Program.

Human Cell, Tissue, and Cellular and Tissue-Based Products (HCT/Ps)

  • Jeffrey K. Shapiro writes about the unique regulatory regime for HCT/Ps, outlines the regulatory definitions of “clinical effect” and “homologous use” and discusses whether advertising the clinical effects/performance characteristics of an HCT/P meets the homologous use regulatory requirement.


  • Patents and Drug Innovation: Kurt R. Karst discusses how the legal system may be steering researchers away from drugs that take a long time to develop. In this post, Karst summarizes a recent research paper that focuses empirically on the relationship between the patent incentive and drug innovation.
  • Compounding: Karla L. Palmer discusses several updates to the bulks list prompted by an August decision from the District Court for the District of Columbia that upheld FDA’s strict interpretation of “clinical need” for use of a bulk substance and removal of vasopressin from the Section 503B bulks list discussed here. Shortly after, FDA released a preliminary determination to remove nine other substances from the bulks list while adding five additional substances that Palmer discusses here and here.


  • Fraud and Abuse: CMS and OIG proposed substantial amendments to the regulations implementing the Medicare physician self-referral law (i.e., Stark Law) and the safe harbor regulations under the Federal Anti-Kickback Statute in October. Serra J. Schlanger, McKenzie E. Cato and Alan M. Kirschenbaum highlight the proposed changes in this post.

Food & Dietary Supplements

  • Importation: Riёtte van Laack discusses FDA’s first Warning Letter for a violation of the FSMA’s requirements for a Foreign Supplier Verification Program (FSVP). Her post describes the FSVP requirements, including the new responsibility of importers to ensure that products are held to the same safety standards as domestically produced food.
  • DMHA Regulation: Douglas B. Farquhar and Ricardo Carvajal discuss the 11th Circuit Court of Appeals concurrence with FDA that DMAA (1,3-dimethylamylamine) is not a “botanical” or a “constituent” of botanicals and that Hi-Tech Pharmaceuticals, Inc. should not have sold DMAA as a dietary supplement. See their post for details about FDA’s and Hi-Tech’s arguments and stay tuned for further developments in other Hi-Tech litigation previously blogged about here.

DEA & Cannabis

  • Medical Cannabis: John A. Gilbert and Larry K. Houck continue the discussion of DEA’s planned doubling of the 2019 aggregate production quota for marijuana (prior posts here and here), which would require DEA to act on pending marijuana manufacturer registrations. Their post describes DEA’s announcement to propose additional regulations to address the process and the many questions that remain unanswered.


Hyman, Phelps & McNamara has its finger on the pulse of FDA. Our technical expertise and industry knowledge are exceptionally wide and deep. Our professional team possesses extensive experience with the universe of issues faced by companies regulated by FDA.  Please contact us for any questions on the issues described here or others affecting the FDA-regulated industry.