The 6-Year Saga Finally Ends: FDA Issues Final Rule Modifying The Intended Use RegulationAugust 16, 2021
A determination of “intended use” is fundamental to FDA’s regulation of drugs and medical devices. It is a primary basis for determining if an article is regulated by FDA at all, and if so, what regulatory requirements apply. It is embodied in parallel drug and device regulatory definitions of intended use (21 C.F.R. §§ 201.128 (drugs), 801.4 (devices)).
FDA has now issued a final rule governing how intended use of a distributed product is to be determined. Thus ends a saga that began with a proposal in 2015 to amend the “intended use” regulation. The proposal was to remove the “knowledge provision,” which had always seemed to problematically suggest that a manufacturer could be held responsible for off‑label use if the manufacturer knew about it.
This provision stated (as of April 2021):
But if a manufacturer knows, or has knowledge of facts that would give him notice that a device introduced into interstate commerce by him is to be used for conditions, purposes, or uses other than the ones for which he offers it, he is required to provide adequate labeling for such a device which accords with such other uses to which the article is to be put.
The proposal to delete this provision made sense, because the off‑label uses under consideration are entirely lawful. It is contrary to the statutory scheme to require a manufacturer to obtain cleared or approved labeling for an off-label label use simply based on knowledge that physicians were choosing to use the device off‑label. It is especially problematic to criminalize these otherwise lawful sales until such clearance or approval can be obtained.
In 2017, however, FDA shockingly finalized this proposed rule without deleting the knowledge provision. Indeed, FDA arguably strengthened it. This set off a firestorm, eventually leading to a new proposed rule in 2020, which was much closer to the one in 2015. We were generally in favor of it, although not without some criticisms.
FDA has now finalized the rule roughly as proposed last year. On the whole, the amended intended use regulation is a modest improvement over the one in place for many decades. (It could have been made much better; our more comprehensive proposal is here.)
The entire modified rule (device version) can be found here. It states:
The words intended uses or words of similar import in §§ 801.5, 801.119, 801.122, and 1100.5 of this chapter refer to the objective intent of the persons legally responsible for the labeling of an article (or their representatives). The intent may be shown by such persons’ expressions, the design or composition of the article, or by the circumstances surrounding the distribution of the article. This objective intent may, for example, be shown by labeling claims, advertising matter, or oral or written statements by such persons or their representatives. Objective intent may be shown, for example, by circumstances in which the article is, with the knowledge of such persons or their representatives, offered or used for a purpose for which it is neither labeled nor advertised; provided, however, that a firm would not be regarded as intending an unapproved new use for a device approved, cleared, granted marketing authorization, or exempted from premarket notification based solely on that firm’s knowledge that such device was being prescribed or used by health care providers for such use. The intended uses of an article may change after it has been introduced into interstate commerce by its manufacturer. If, for example, a packer, distributor, or seller intends an article for different uses than those intended by the person from whom he or she received the article, such packer, distributor, or seller is required to supply adequate labeling in accordance with the new intended uses. (Italics supplied.)
We have three quick comments on the revised regulation:
First, the removal of the problematic knowledge provision is a significant victory for regulatory clarity and brings the regulation more in line with the statutory scheme. This was the core of the 2015 proposal and it is amazing that it took six years to get back to that proposal. Still, it is a welcome outcome.
Second, the new italicized proviso introduced in this rulemaking is important. It further prevents FDA from inferring off-label intent based merely on knowledge that an otherwise lawfully marketed device is being used off-label. We had suggested striking the word “solely” to clarify further that a manufacturer’s knowledge of off-label use should never enter into a FDA’s determination of intended use. Nonetheless, although FDA did retain “solely,” it seems unlikely that mere knowledge of lawful off-label use could be used to bring a case against a manufacturer without significant unlawful promotion being involved as well.
Finally, as discussed here, this revised provision gives FDA the right to consider “design and composition” in determining intended use. To the extent that FDA infers an unapproved new intended use based upon the design and composition of a device as it has been cleared or approved, then it may conflict with Section 513(i)(1)(E) of the FDCA.
That provision requires FDA limit the determination of intended use in premarket review to the proposed labeling. If FDA believes based upon a device’s design (which includes composition) that an off-label use is possible and could cause harm, it may do no more than require certain cautionary labeling statements. The agency may not require that the manufacturer obtain clearance or approval of the off‑label use implied by the design or composition.
It would contradict this statutory scheme for FDA to clear or approve a device with a particular design or composition and then turn around and seek to hold the manufacturer liable for an off-label intended use based upon the same design or composition. That would be an inappropriate end run around Section 513(i)(1)(E).