Facing a lawsuit from the food industry and pressure from FDA, the City of New York agreed on Friday to not enforce menu labeling requirements against many restaurants, convenience stores, and other retail food establishments until May 7, 2018. The move aligns the City’s enforcement timeline with FDA’s nationwide compliance date and marks a reversal for the City, which previously announced that it would issue fines and notices of violation beginning on August 21, 2017.

The policy change was the result of a legal challenge brought by food industry trade groups who argued that the City’s early enforcement of its own regulations was unlawful. As we previously reported here, the Federal Food, Drug, and Cosmetic Act, which establishes national menu labeling requirements, permits local menu labeling rules that are identical to the federal requirements. The City has said that its menu labeling rules are substantively identical to the federal statutory and regulatory requirements. But in a motion for preliminary injunction against the City, the plaintiffs (National Association of Convenience Stores, New York Association of Convenience Stores, Food Marketing Institute, and National Restaurant Association) argued that the City’s imposition of an earlier compliance date would be an additional, non-identical obligation. Therefore, plaintiffs argued, the City was preempted from early enforcement.

Though not a party to the lawsuit, the FDA weighed in and agreed with the plaintiffs in a Statement of Interest filed with the court on August 14: “Acknowledging that the federal requirements have come into effect, the City asserts that it is not bound by the terms of one of those requirements, the date of compliance. Because the governing statutory and regulatory framework established by the Act expressly preempts the City from making such a unilateral determination, the City should not be allowed to begin enforcement of [its menu labeling requirements] in advance of the FDA’s national compliance date.”

Before oral arguments could be heard, the City and the trade groups reached an agreement, which was filed with the Court on Friday August 25. The City agreed that it will not take enforcement action against noncompliant establishments that are members of the plaintiff trade groups, until the federal compliance date. In exchange, the trade groups agreed to “continue to educate and encourage their members to continue the process of coming into compliance . . . as soon as practicable” and to encourage those members who are already complying to stay in compliance. The agreement does not prevent the City from “continuing to educate” establishments about its menu labeling requirements.

Earlier on Friday, FDA Commissioner Scott Gottlieb issued a statement that highlighted the preemptive effect of the federal menu labeling requirements. “Americans should not have to navigate variable information about the foods they eat when traveling from state to state — or city to city,” Gottlieb said. “Inconsistent state and local requirements may also drive up the cost of food, and sow confusion, by requiring restaurants and other covered establishments to post different information based on location.” The Commissioner’s statement also announced that the Agency would issue “additional, practical guidance on the menu labeling requirements by the end of this year.”

The statement did not address whether FDA planned to revise its final menu labeling regulations. Earlier this year, the Agency said it was reconsidering certain aspects of the final rule and invited comments about how FDA “might further reduce the regulatory burden or increase flexibility.” To date, FDA has received over 69,000 public comments. The Commissioner gave no indication that the reconsideration would result in an extension of the compliance date beyond May 7, 2018. The forthcoming guidance, he said, “should allow covered establishments to implement the requirements by next year’s compliance date.”

On Monday, August 28th, FDA announced the outlines of a long overdue policy change on stem cells. Based on Dr. Gottlieb’s statements in the FDA press release, it appears to have two prongs. First, the agency announced a crackdown on stem cell clinics that claim “…that their unproven and unsafe products will address a serious disease, but instead put patients at significant risk.”

To this end, on Friday, August 25th, the U.S. Marshals Service, on behalf of FDA, seized vials of Vaccinia Virus Vaccine (Live) from StemImmune Inc. in San Diego, California. These vaccines were purportedly being administered to cancer patients at the California Stem Cell Treatment Centers in Rancho Mirage and Beverly Hills, California.

According to the FDA press release on the seizure: “…the vaccine was used to create an unapproved stem cell product (a combination of excess amounts of vaccine and stromal vascular fraction – stem cells derived from body fat), which was then administered to cancer patients with potentially compromised immune systems and for whom the vaccine posed a potential for harm, including myocarditis and pericarditis (inflammation and swelling of the heart and surrounding tissues). The unproven and potentially dangerous treatment was being injected intravenously and directly into patients’ tumors.”

In a separate action, on August 24th, the agency issued a Warning Letter to U.S. Stem Cell Clinic Inc., LLC, alleging that the autologous stem cells manufactured from adipose tissue at this clinic were more than minimally manipulated and not intended for a homologous use, thereby rendering the products unapproved new drugs, and biologics requiring licensure under 351 of the Public Health Service Act (PHSA).

According to the Warning Letter, the company’s promotional materials stated that the stem cell product: “…is intended to treat a variety of diseases and conditions, including, but not limited to, Parkinson’s disease, amyotrophic lateral sclerosis (ALS), chronic obstructive pulmonary disease (COPD), heart disease, and pulmonary fibrosis…” among other ailments.

In fact, the Washington Post reports that, in March of 2017, the clinic was the subject of a New England Journal of Medicine article that stated that three women with age-related macular degeneration were blinded, or had their vision badly impaired, after undergoing procedures at the U.S. Stem Cell Clinic which involved injecting stem cells into their eyes.

The issuance of a Warning Letter in these circumstances is not new. The agency has issued several regulatory letters to such facilities over the past several years, though it has rarely taken the subsequent step of initiating litigation, or seizing product, when the facility in question didn’t stop selling the stem cell products after an FDA admonition to do so. It will be interesting to see what further steps, if any, FDA takes in this direction with other such stem cell facilities.

Second, Dr. Gottlieb stated that the agency is developing a “comprehensive and efficient,” science-based policy with the aim of accelerating the proper development of stem cell products. According to the Commissioner, FDA will put forward a new framework on this subject this fall.

This comprehensive policy will establish clearer lines around when these regenerative medicine products have sufficient complexity to fall under the agency’s current authority, and then define an efficient process for how these products should be evaluated for safety and effectiveness. The policies will be set forth in a series of guidance documents that are the result of a public process we have held in recent years. The new policy will build upon the agency’s current risk-based, flexible regulatory framework. It will also serve to implement provisions of the 21st Century Cures Act related to regenerative medicine. The FDA has already held public meetings to inform its thinking in these areas, so much of the agency’s approach is already part of the public record. We’ll continue to work with industry and the scientific community to perfect the process for bringing safe and effective treatments to patients.

At the same time that this regenerative medicine policy will be put forward, FDA will apparently also issue a compliance policy that will give current product developers “…a very reasonable period of time…” to interact with the FDA in order to determine if they need to submit an application for marketing authorization and to come into the agency and work on a path towards approval.

As CBER’s former Deputy Director for Compliance and Biologics Quality (2012-2015), I’m thrilled to see that Dr. Gottlieb is proposing changes to CBER’s thus far unworkable approach to stem cells. The 351 PHSA pathway used for vaccines and related biological products has not shown itself to be an effective regulatory tool for facilities that manufacture cells and tissues on a small scale (often personalized to a patient’s needs), as these firms usually do not have the resources to conduct large-scale trials, and pay significant user fees. This is evidenced by the dearth of approvals of these products and the commensurate dearth of sponsors that appear to be actively conducting clinical trials in this area. In addition, the lack of clarity in the Part 1271 regulations (21 CFR Part 1271 and following), and the draft guidance documents that, at times, appear unhinged from their authorizing regulatory texts, have significantly hindered capital investment and product development in this area.

From the enforcement perspective, the outlines of Dr. Gottlieb’s approach are also salutary, as FDA appears to have taken on paper tiger status because the agency has issued several Warning Letters (as well as numerous untitled letters) in the area of Human Cells, Tissues, and Cellular and Tissue-based Products (HCT/Ps) over many years, and has almost never taken enforcement action against recalcitrant firms that the agency claims continue to violate the law and put the public health at risk (the sole exception to this statement being the case of Regenerative Sciences – see here).

In addition, the Commissioner’s statements regarding enforcement appear to focus on those firms that market unsubstantiated therapies, where those therapies also pose significant risks to the health and safety of patients.  That would appear to exclude amniotic tissue products and the like that have been the subject of the agency’s ire over the past few years (see, for example, the untitled letter to Surgical Biologics from 2013). This would seem to be an equitable resolution to the standoff between CBER and this segment of the HCT/P industry.

Finally, it is also noteworthy that Dr. Gottlieb’s statement, in referencing the criteria under 21 CFR 1271.10(a), never explicitly calls out the fourth criteria, namely, that HCT/Ps should not have a systemic effect and should not be dependent on the metabolic activity of living cells for their primary function. This fourth prong has received much criticism from industry because, read literally, it would preclude most products with viable cells from regulation exclusively under Part 1271.

Indeed, in the proposed rule promulgating the HCT/P regulations (63 FR 26749, May 14, 1998), FDA stated that: “[t]he agency would consider the insertion of pancreatic islet cells, or stem cells into an individual to have a mainly systemic effect…FDA recognizes that some products may have both systemic and structural effects but intends that a product’s primary effect be determinative.” [Emphasis added]

We can only hope that Commissioner Gottlieb’s announcement leads to much needed reforms in the HCT/P arena, particularly in the areas summarized above. Patients and industry participants deserve nothing less. We will, of course, update our readers regarding all FDA developments in this area.

In an advisory opinion posted on August 25, 2017, the Office of the Inspector General of the Department of Health and Human Services (“OIG”) determined that enforcement action would not be taken against a drug manufacturer’s proposal to replace products that require specialized handling that could not be administered to patients for certain reasons, at no additional charge to the purchaser.

Advisory Opinion 17-3 was requested by a company that manufactures and sells biologics and other products that may be sensitive to temperature changes, direct sunlight or movement, or may require reconstitution in a controlled environment. The labeling for the company’s products includes specific storage and handling requirements, and, if applicable, limits on the amount of time that may pass between when a product is reconstituted and when it is administered to a patient. Failure to meet these requirements results in product spoilage.

Under the proposed program, the manufacturer would replace, without charge, products purchased by physicians, clinics, and hospitals if the products became spoiled or otherwise unusable after purchase. Under the program, products could only qualify for replacement if it was not administered to a patient after having been rendered unusable due to:

• Being mishandled, dropped, or broken;
• Being inappropriately stored or refrigerated, or frozen;
• An admixture error; or
• Being reconstituted but not administered due to an unforeseen patient condition or missed appointment.

Purchasers would be informed about the program and policies for replacement before purchase. The program would only allow for the replacement of spoiled products and would not provide purchasers with credit for any spoiled product or replacements for free samples. In addition, a purchaser could not receive replacement product if the spoiled product had been administered or billed to an insurer or patient. The program was designed to replace single spoilage claims; however, in the event of a multi-unit loss (e.g., a refrigeration failure), the purchaser could claim a loss of up to five products. In order to receive the replacement product, the purchaser would be required to submit documentation describing how the spoilage occurred and return the spoiled product. In the event that the product could not be returned (e.g., a broken vial), the purchaser must attest to how it became unusable and provide a photograph of the spoiled product, if available. The purchaser would also be required to sign an acknowledgement that neither a patient nor insurer was billed for the spoiled product.

In analyzing this program under the Federal anti-kickback statute (“AKS”, 42 U.S. C. § 1320a-7b(b)), the OIG recognized that, although potentially applicable, the safe harbor for warranties (42 C.F.R. § 1001.952(g)) would not protect the proposed replacement product program because the safe harbor for warranties protects actions taken by suppliers to address products that do not meet specification. In the proposed program, the products intended to be replaced would meet specification but would then be spoiled or rendered unusable after they had been delivered to the purchaser due to the purchaser’s error or an unforeseen inability to administer the product after it was prepared for a patient.

Nevertheless, the OIG concluded that the proposed replacement product program presented a low risk of fraud and abuse for four reasons.

1. The replacement of product would be restricted to certain unintentional unplanned circumstances and could increase patient safety and quality of care (e.g., by decreasing the possibility that a purchaser would administer potentially spoiled product in order to avoid financial loss).
2. There was low risk of increased cost or overutilization because the program would only apply to products that the purchaser had already selected and intended to use, but did not administer to a patient or bill to a patient or insurer.
3. The program would only cover individual claims of spoiled products and not large losses. In addition, the only remedy would be replacement of the same product that the purchaser had intended to use.
4. The program is similar to an insurance program, which OIG believes is unlikely to cause a purchaser to its change behavior (e.g., the purchaser would be unlikely to reduce costs that are currently expended to prevent spoilage). In addition, the fact that the purchaser would be required to complete an administrative process, including providing proof or an attestation of the spoilage and returning the product or explaining why it cannot be returned, reduces the risk that the program would unduly influence the purchase of products.

It is encouraging that OIG has recognized that such a program has a public health benefit and low risk of fraud and abuse.

According to a European Medicines Agency (EMA) press release issued on August 23, 2017, the FDA, the European Commission (EC), and the European Medicines Agency (EMA) recently signed a new confidentiality commitment that allows the FDA to share non-public and commercially confidential information, including trade secret information, contained in drug inspection reports with these European Agencies.

As you may recall, back in March, we reported that the United States and the European Union had agreed to recognize each other’s drug cGMP inspections. The agreement reached (see here and here) amended the Pharmaceutical Annex to the 1998 U.S. – E.U. Mutual Recognition Agreement, with a view to avoiding duplicative inspections and saving millions of dollars in repetitive inspections.

At the time, FDA stated that they believe this “…initiative will result in greater efficiencies for both regulatory systems and provide a more practical means to oversee the large number of drug manufacturing facilities outside of the U.S. and EU.” Until then, the EU and FDA would sometimes inspect the same facilities within a brief period of time. With the agreement announced earlier this year, such duplication is expected to become the exception, rather than the rule.

Fundamentally, the problem has been that while European regulators have, for years, shared with FDA unredacted inspection reports from their European inspections, FDA has shared only redacted inspection reports with our European counterparts.  These redacted reports have been of limited utility to European regulators in determining whether any regulatory action needed to be taken against U.S. based pharmaceutical facilities.

Then, in 2012, with the enactment of The Food and Drug Administration Safety and Innovation Act (FDASIA), FDA was provided with the statutory authority to enter into memoranda of understanding for purposes of information exchanges with foreign governments, and specifically with the authority to share trade secret information under certain circumstances. Section 708(c) of the Federal Food, Drug, and Cosmetic Act, codified at 21 USC 379(c), reads in part as follows:

(c) AUTHORITY TO ENTER INTO MEMORANDA OF UNDER- STANDING FOR PURPOSES OF INFORMATION EXCHANGE.—

The Secretary may enter into written agreements to provide information referenced in section 301(j) to foreign governments subject to the following criteria:

(1) CERTIFICATION.—The Secretary may enter into a written agreement to provide information under this subsection to a foreign government only if the Secretary has certified such government as having the authority and demonstrated ability to protect trade secret information from disclosure. Responsibility for this certification shall not be delegated to any officer or employee other than the Commissioner of Food and Drugs.

(2) WRITTEN AGREEMENT.—The written agreement to provide information to the foreign government under this subsection shall include a commitment by the foreign government to protect information exchanged under this subsection from disclosure unless and until the sponsor gives written permission for disclosure or the Secretary makes a declaration of a public health emergency pursuant to section 319 of the Public Health Service Act that is relevant to the information.

(3) INFORMATION EXCHANGE.—The Secretary may provide to a foreign government that has been certified under paragraph (1) and that has executed a written agreement under paragraph (2) information referenced in section 301(j) in only the following circumstances: (A) Information concerning the inspection of a facility may be provided to a foreign government if— (i) the Secretary reasonably believes, or the written agreement described in paragraph (2) establishes, that the government has authority to otherwise obtain such information; and (ii) the written agreement executed under paragraph (2) limits the recipient’s use of the information to the recipient’s civil regulatory purposes. (B) Information not described in subparagraph (A) may be provided as part of an investigation, or to alert the foreign government to the potential need for an investigation, if the Secretary has reasonable grounds to believe that a drug has a reasonable probability of causing serious adverse health consequences or death to humans or animals.

(4) EFFECT OF SUBSECTION.—Nothing in this subsection affects the ability of the Secretary to enter into any written agreement authorized by other provisions of law to share confidential information. [Emphasis added]

As a result, since the enactment of FDASIA, FDA has had the statutory authority to share inspectional information containing trade secrets with European counterparts, however, until recently, FDA had presumably been unwilling or unable to certify under 21 USC 379(c)(1) that such governments “…had the authority and demonstrated ability to protect trade secret information from disclosure.”

That appears to have changed, as stated in the EMA press release: “[t]he new confidentiality commitment formally recognizes that FDA’s EU counterparts have the authority and demonstrated ability to protect the relevant information. This step now allows the sharing of full inspection reports, allowing regulators to make decisions based on findings in each other’s inspection reports and to make better use of their inspection resources to focus on manufacturing sites of higher risk.”

We will continue to monitor the implementation of this inspection initiative with the EU, and to assess whether it bears the fruits its FDA proponents advertise, without the drawbacks that many fear.

In November 2013, the Food Safety Inspection Service (FSIS) of the USDA issued a regulation expanding the circumstances in which labels were eligible for generic label approval (see our previous post here). Under that regulation, meat and poultry labels need not be submitted for label review unless the labels fall within one of four categories, i.e., 1.) labels for “religious exempt products,” 2.) labels for products for export that are subject to requirements different from those applicable to products for marketing in the United States, 3.) labels that include special statements and claims, and 4.) labels for temporary approval. All other product labels need not be submitted for review but are generically approved provided that they are in compliance with applicable regulations. At the time that it issued the regulation, FSIS also issued guidance with a long list of examples of special statements and claims that needed to be submitted to FSIS for approval and a list of examples of claims that could be generically approved.

On August 18, 2017, FSIS issued the second update to its guidance.  According to its press release, this update “include[s] new examples of special statements and claims that require submitting for approval, factual statements and claims that are generically approved, changes that can be made generically to labels previously approved with special statements and claims, and changes that cannot be made generically to labels previously approved with special statements and claims.”

FSIS asserts that new special statements are marked with an asterisk. New special statements that require approval include egg free, family farm raised, certain implied nutrient content claims (e.g., made with olive oil, protein snack), Paleo Certified, and Paleo Friendly. Some of the information is reorganized. Notably, information about label approvals regarding approval requirements for labels for religious exempt products, export labels that are different from domestic labels, and labels for temporary approval (for labeling errors that do not pose a potential health or safety issue) has been moved to a new Appendix (Appendix 7) making it easier to locate.

FSIS invites comments. The comment period is open for 60 days. Meanwhile, FSIS advises companies to use the updated guidance when determining whether they need to submit a label for approval. Questions regarding labeling statements that are not included in the guidance can be submitted any time via askFSIS.

In a blog posting that cited the agency’s goal of educating while regulating, FDA released the Food Safety Plan Builder (FSPB) – a software program “designed to assist owners/operators of food facilities with the development of food safety plans that are specific to their facilities and meet the requirements of the Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food regulation (21 CFR Part 117).”  The FSPB web page makes clear that use of the FSPB is voluntary and does not necessarily ensure compliant food safety procedures.  Nonetheless, the FSPB can be expected to find an audience, especially among smaller manufacturers that are subject to extended compliance dates and might not have yet invested substantial resources in developing a food safety plan.  Even larger manufacturers who have already developed their plans may be tempted to delve into the FSPB as a point of reference.

In conjunction with the software, FDA released 16 (!) training videos on YouTube that address various aspects of FSPB.  FDA also released a user guide with more detailed information.  Perhaps not surprising in light of the subject matter, the user guide includes a lengthy legal disclaimer putting users on notice that FDA makes no warranties of any kind and admits of no liability for any damages, and that “[r]esponsibility for the interpretation and use of the [FSPB] and of the accompanying documentation lies solely with users.”

On August 21, 2017, the Health Resources and Services Administration (“HRSA”), the federal agency responsible for overseeing the 340B Drug Discount Program, published in the Federal Register a Notice of Proposed Rulemaking (“NPRM”) that would delay until July 1, 2018 the implementation of the Final Rule establishing the methodology for calculating the 340B ceiling price (including the so-called penny pricing policy) and civil monetary penalties (“CMPs”) for knowing and intentional overcharges of 340B covered entities (see our original post regarding the Final Rule here).

Similar to the reason given for previous delays (see our posts here and here), HRSA indicated that this latest delay to mid-2018 will “allow for necessary time to more fully consider the substantial questions of fact, law, and policy raised by the rule.” 82 Fed. Reg. 39,554.  The impetus for HRSA’s delay to the effective date of the Final Rule expressly derives from both the “Regulatory Freeze Pending Review” memorandum issued by the Trump administration on January 20, 2017 as well as the Executive Order issued the same day entitled, “Minimizing the Economic Burden of the Patient Protection and Affordable Care Act [(‘ACA’)] Pending Repeal.”  See our post here that described the Regulatory Freeze memorandum.  The Regulatory Freeze memorandum provided time for the Trump administration to review and reconsider regulations implemented during the Obama administration.  The Executive Order directed Trump appointees, including the heads of the U.S. Department of Health and Human Services (“HHS”) and other executive offices to “utilize all authority and discretion available to delay the implementation of certain provisions or requirements of the [ACA].” Id.  The ACA required HHS to improve aspects of 340B program integrity with a statutory mandate to develop a system to enable HHS to verify the accuracy of ceiling prices calculated and reported by manufacturers, including the implementation of “precisely defined standards and methodology for the calculation of ceiling prices,” and to impose CMPs for manufacturer overcharges to covered entities.  42 U.S.C. § 256b(d)(1)(B)(i)(I), (vi).  The 340B Final Rule was HRSA’s long-overdue rulemaking aimed at implementing those ACA provisions.  Despite unsuccessful attempts by Congress to repeal and replace the ACA since that Executive Order was issued, the Executive Order appears, nevertheless, to continue to affect certain rulemaking implementing the ACA, including this 340B Final Rule.

Unlike the previous delays, this one raises the possibility that substantive changes may be made to the Final Rule. This NPRM states that, more than merely delaying implementation, HRSA “intends to engage in additional rulemaking on these issues” and will take additional time to consider a “more deliberate rulemaking process.”  As a further signal that regulatory changes may be forthcoming, HRSA stated that the agency did not want manufacturers to invest time and expense coming into compliance with a Final Rule “that is under further consideration and for which substantive questions have been raised . . . .” Id.  However, the NPRM contains no information on what substantive questions have been raised or what the new rulemaking would entail.

Public comments on the delay to the effective date of the Final Rule are also being solicited by HRSA in this NPRM. They are due to the agency on or before September 20, 2017.

We will continue to track and report on further developments regarding implementation of the Final Rule or other updates concerning the 340B Drug Pricing Program.

In June 2017, two consumer advocacy organizations, the Center for Science in the Public Interest and the National Consumer League (“Plaintiffs”), sued FDA challenging the Agency’s interim final rule extending the compliance date for menu labeling and request for comments (see our previous post here).  In response, FDA filed a Motion to Dismiss the Complaint because: 1) the Plaintiffs lack standing; and, in the alternative, 2) even if the Plaintiffs have standing, Plaintiffs’ claims are premature and not ripe for review.

FDA argues that the Plaintiffs are not directly affected by the menu labeling rule. As a third party, Plaintiffs must meet a higher burden than a party that is directly affected by the rule, i.e., the regulated industry. FDA provides several arguments to support its claim that the Plaintiffs lack standing. For example, Plaintiffs had asserted an injury to their mission of conducting innovative research and advocacy programs in health and nutrition, and providing consumers with current, useful information about their health and well-being. However, as FDA notes, the menu-labeling rule is not designed to provide consumer advocacy organizations with information. Instead the purpose of the menu labeling is “for consumers to receive [nutritional] information directly from restaurants.” Moreover, FDA’s extension of the compliance date does not affect Plaintiffs’ advocacy work. According to FDA, whatever injuries Plaintiffs claim, they are “unsupported, self-inflicted by Plaintiffs, or dependent on voluntary actions by third parties.”

Even if the Plaintiffs have standing, FDA argues, Plaintiffs claims are not ripe. The interim final rule was just that, an interim rule. It is not a final determination; the decision is “in flux.” In fact, FDA notes that it expressly asked for comments and expressed a willingness to modify the extension of the willingness. Plaintiffs, like any other party, have had an opportunity (which they used) to submit comments. The comment period closed on August 2, 2017, almost two months after Plaintiffs filed their complaint. The Agency asserts that it is actively considering the numerous comments (according to the latest count, more than 71,000 comments were submitted). Since FDA is reviewing the comments and considering future actions, it does not make sense for the Court to take any action, FDA argues, and any determination by the Court on the merits may be “overtaken by the ultimate decision” by FDA.

Since standing must be addressed before the merits, FDA does not address the merits of the Plaintiffs’ complaint.

We look forward to reading Plaintiffs’ response.

FDA seems to be getting bolder in penalizing industry when it prevents an FDA investigator from taking photographs during a routine FDA inspection.

On August 2, 2017, FDA issued a Warning Letter to Homeolab USA Inc. (part of the parent company, Homeocan Inc. located in Montreal, Québec) for, among other things, impeding the FDA inspection by preventing the investigator from photographing a piece of equipment. FDA claimed the alleged failure to permit photographs constitutes a violation of the Federal Food, Drug, and Cosmetic Act (FDC Act), citing section 501(j) of the FDC Act, which deems drugs adulterated when an owner or operator of a drug facility limits an FDA inspection. FDA relied on its Guidance, titled “Circumstances that Constitute Delaying, Denying, Limiting, or Refusing a Drug Inspection”, which provides examples of behavior that FDA considers to constitute a limitation and explicitly states that “impeding or resisting photography by an FDA investigator may be considered a limitation if such photographs are determined by the investigator to be necessary to effectively conduct that particular inspection.” Based on this and other alleged violations, FDA asserts in the Warning Letter that drugs produced at the Homeolab USA facility are deemed adulterated because of the company’s refusal to allow photographs.

Also, because Homeolab USA’s parent company is located in Québec, FDA banned the company’s products from entering the United States by placing the company on Import Alert 66-40. The Import Alert means that FDA can detain, without physical examination, products imported to the United States, and can continue to detain these products until it is satisfied that the appearance of a violation has been removed, either by reinspection or submission of appropriate documentation to the responsible FDA Center.

FDA previously issued a citation relating to a photo refusal in a September 2016 Warning Letter to Nippon Fine Chemical Co., Ltd. (see our previous post here). This Warning Letter was of note because FDA effectively shut down a drug facility based solely on its conduct during an FDA inspection. FDA deemed the drugs produced at the facility adulterated based on the fact that the company limited an inspection and/or refused to permit the FDA inspection in three ways: 1) barring access to areas, 2) refusing to provide copies of documents, and 3) limiting photography. That Warning Letter cited no other observed GMP or safety concern related to the company’s products or procedures.

The recent increase in Warning Letters referencing limiting photography as a violative act shows that FDA, relying on its non-binding guidance, is employing an expansive approach in exercising its inspection powers. This is in spite of the fact that, as far as we know, there has been no case in which a court has held that a company’s refusal to allow FDA inspectors to take photographs constitutes a violation of the FDC Act (see previous posts here and here).

But we will be watching closely to see whether a court agrees that FDA’s inspection authority requires industry to permit investigators to take photographs during routine inspections, and will ensure that our faithful blog consumers are made aware of developments.

* Not admitted in the District of Columbia

Children of the 1970/80s can easily recall that famous “How many licks does it take to get to the center of a Tootsie Pop?” commercial. Well, there’s a Hatch-Waxman version of that question: “How many approvals does it take to get to the center of 3-year exclusivity?”  While the world has known for a couple of years the answer to the Tootsie Pop question, FDA only recently provided an answer to the Hatch-Waxman version of the question.  And as with other recent 3-year exclusivity issues, the answer has come up in the context of abuse-deterrent opioids (see our previous posts here, here, here, and here).  But before we give up the answer, some background is on order. . . .

On April 26, 2016, FDA approved Collegium Pharmaceuticals, Inc.’s (“Collegium’s”) NDA 208090 for XTAMPZA ER (oxycodone) Extended-release Capsules for the management of pain severe enough to require daily, around-the-clock, long-term opioid treatment and for which alternative treatment options are inadequate. XTAMPZA ER was approved as a 505(b)(2) NDA, relying on FDA’s finding of safety and effectiveness for  OXYCONTIN (oxycodone HCl) Controlled-release Tablets (NDA 022272).

XTAMPZA ER was approved just days after the expiration of a period of 3-year exclusivity applicable to OXYCONTIN. That exclusivity was granted based on FDA’s April 16, 2013 approval of NDA 022272/S014, and was coded in the Orange Book as “M-153” (which is defined as: “ADDITION OF INFORMATION REGARDING THE INTRANASAL ABUSE POTENTIAL OF OXYCONTIN”).  In a March 3, 2015 Memorandum, the CDER Exclusivity Board explained the Agency’s decision to grant a period of 3-year exclusivity with respect to the April 16, 2013 approval of NDA 022272/S014 (see our previous post here), as well as the scope of that exclusivity: “the scope of 3-year exclusivity in this instance is limited to the addition of information to the [OXYCONTIN] labeling regarding the reduction of abuse via the intranasal route.”

In support of it’s NDA for XTAMPZA ER, Collegium conducted a couple of its own clinical investigations: an efficacy trial and a human abuse liability study assessing deterrence of intranasal abuse (Study CP-OXYDET-21). FDA subsequently granted Collegium a period of 3-year exclusivity for XTAMPZA ER that expires on April 26, 2019 and that is coded in the Orange Book as “NP” (for “New Product” exclusivity).

In light of a then-pending NDA for Inspirion Delivery Sciences, LLC’s (“Inspirion’s”) ROXYBOND (oxycodone HCl) Tablets, 5 mg, 15 mg, and 30 mg (NDA 209777) for the management of pain severe enough to require an opioid analgesic and for which alternative treatments are inadequate, the CDER Exclusivity Board once again earlier this year had to assess the scope of 3-year exclusivity – in this case for XTAMPZA ER – and whether that exclusivity served as an obstacle to the approval of ROXYBOND. In a 20-page Memorandum dated April 20, 2017, the CDER Exclusivity Board concluded that “Xtampza ER’s exclusivity based on study CP-OXYDET-21 covers the specific formulation of Xtampza ER associated with its inlranasal [abuse-deterrrent] properties,” and that “[b]ecause RoxyBond’s formulation associated with its intranasal AD properties is different from that of Xtampza ER, it does not share any exclusivity-protected conditions of approval of Xtampza ER” and the 3-year NP exclusivity applicable to XTAMPZA ER “should not block approval of RoxyBond” (emphasis added).  So, FDA approved NDA 209777 for ROXYBOND on April 20, 2017.  (By the by, Pharmaceutical Manufacturing Research Services, Inc. recently filed a Complaint in the U.S. District Court for the Eastern District of Pennsylvania challenging FDA’s ROXYBOND approval.)

That’s right! Although FDA previously articulated what we’ve dubbed a “route of abuse” approach to abuse-deterrent opioid 3-year exclusivity, that approach has evolved.  It’s been modified a bit to account for formulation differences and the type of abuse-deterrence technology used (e.g., physical/chemical barriers, agonist/antagonist combinations, aversion, delivery system, and others discussed in FDA guidance).  FDA explains the general exclusivity framework as follows:

[I]n assessing the scope of 3-year exclusivity for a single-entity drug product containing the same active moiety as a previously approved single-entity drug product, the Agency looks at the innovative change(s) represented by the later-approved drug product relative to the previously approved drug product. Exclusivity for the later-approved drug product cannot cover any condition of approval for which “new clinical investigations” were not “essential.”  If an earlier-approved drug product was approved for a particular condition of approval, new clinical investigations would not be considered “essential” to support the same condition of approval for a later-approved drug product containing the same active moiety.  Rather, the new clinical investigations would be considered essential only to support a condition of approval for the later-approved drug product that is different from the condition of approval of the earlier-approved drug product.  Because 3-year exclusivity generally covers only the differences from a previously approved product, as a practical matter a later-approved product is likely to have a narrower scope of exclusivity than the product approved previously.

The following example provided by FDA illustrates the above concepts:

• The scope of exclusivity based on new clinical investigations that establish for the first time that an active moiety previously approved only as a single-entity, IR drug product can be formulated as a safe and effective extended-release drug product could potentially block approval of subsequent 505(b)(2) NDA for a single-entity, extended-release drug product containing that active moiety.
• Any determination of the scope of exclusivity for a subsequent 505(b)(2) NDA for an extended-release drug product containing the same active moiety would generally follow the framework described above in which the innovative change(s) represented by this product would be assessed relative to the first approved extended-release product. If, for instance, the subsequent product uses different extended-release technology for which new clinical investigations were essential, the scope of exclusivity for this subsequent product would only cover this innovative change.

FDA’s evolution in thinking has caused the Agency to reassess the scope of previously granted exclusivity. According to FDA:

In light of the evolution of the Agency’s approach to assessing 3-year exclusivity for certain [abuse-deterrent] opioids . . . . [the CDER Exclusivity Board] reassessed the scope of OxyContin’s 3-year exclusivity related to S-14. Applying an approach to the scope of 3-year exclusivity for [abuse-deterrent] opioids . . . in which the scope is defined by two primary characteristics: (1) the abuse route (intranasal); and (2) the type of abuse deterrence applied (physiochemical properties), the Board recommended that the scope of OxyContin exclusivity be limited to the condition of approval supported by the intranasal [human abuse liability] study, i.e., “labeling describing the expected reduction of abuse of a single-entity oxycodone by the intranasal route of administration due to physiochemical properties.”

With that reassessment, FDA then defined the narrowing scope of each period of successive 3-year exclusivity for single-entity oxycodone:

The approval of supplement S-14 for OxyContin established for the first time that a single-entity oxycodone product could be formulated with physicochemical properties expected to reduce intranasal abuse, and the resulting scope of exclusivity reflects this innovation. Xtampza ER, like OxyContin, is also a single-entity oxycodone product with physicochemical properties expected to reduce intranasal abuse.  The [human abuse liability] study supporting approval of Xtampza ER with an intranasal [abuse-deterrent] claim, CP-OXYDET-21, was not essential to show that a single-entity oxycodone product could be formulated with physicochemical properties expected to reduce intranasal abuse.  Approval of OxyContin S-14 had already established that.  Rather, the study was essential to support that Xtampza ER’s particular formulation contributes to its intranasal [abuse-deterrent] properties. Specifically, Study CP-OXYDET-21 demonstrated that, as a result of Xtampza ER’s specific formulation, intranasal administration of crushed Xtampza ER resulted in a substantially lower response to Drug Liking, High, and Take Drug Again measures, compared to IR oxycodone.  The Board thus recommends that the scope of Xtampza ER’s 3-year exclusivity based on study CP-OXYDET-21 be limited to “labeling describing the expected reduction of abuse of Xtampza ER by the intranasal route of administration due to physicochemical properties.”

Because ROXYBOND uses a combination of excipients that imparts physical and chemical barriers that make it difficult to manupulate and abuse the drug product, and that formulation differs from XTAMPZA ER to achieve its intranasal abuse-deterrent properties, FDA concluded that the approval of ROXYBOND (NDA 209777) was not blocked by XTAMPZA ER’s 3-year exclusivity.

So, how many approvals does it take to get to the center of 3-year exclusivity? Well, the answer will depend on the starting point, but apparently it’s not too many approvals in the context of abuse-deterrent opioids.  Furthermore, because FDA now defines the scope of 3-year exclusivity for an abuse-deterrent drug to encompass not only the route of abuse, but also the type of abuse-deterrence technology used, we assume that there will be far fewer instances in which 3-year exclusivity could serve as a block to abuse-deterrent opioid 505(b)(2) NDA approval.

Just last month, we blogged about what we believe to be the first Consent Decree signed by the government and an Outsourcing Facility, shutting down operations under judicial order until certain rigorous conditions are met.  Now, comes the second.

Isomeric Pharmacy Solutions, LLC and three affiliated individuals (all Defendants in the matter) signed a Consent Decree that was entered in federal court in Utah (U.S. District Court for the Central Division of the District of Utah) on August 3.  The Outsourcing Facility was also the subject of a Warning Letter in December 2016 and a recall about four months ago.

The Complaint filed in the case alleges that the named individual Defendants were owners or the Chief Operating Officer for the Outsourcing Facility, and that the Outsourcing Facility distributed drugs that were supposed to be sterile but that had “visible black particles” in a preservative-free injectable drug.  The Complaint also alleged that Isomeric found “spore-forming bacteria” in media fills (which are designed to demonstrate that there are no breaches of sterility in the manufacturing process), and contamination of aseptic processing areas with bacteria and fungus.  While the Complaint alleges that Isomeric detected flaws in products relating to, for example, particle size, the Complaint does not allege that any microbial contamination was found in products.  The Complaint also alleges that Isomeric distributed unapproved new drugs.

Under the terms of the Consent Decree, the Defendants are prohibited from distributing drugs manufactured at any of their facilities until and unless they take hire a qualified consultant who determines they are operating in compliance with current FDA’s Good Manufacturing Practice requirements, and FDA certifies, in writing, that FDA agrees.

Outsourcing Facilities are relatively new, quasi-drug manufacturing entities established by legislation in November of 2013 (see our previous post here).  They are permitted to compound and distribute certain drugs under certain conditions, without FDA approvals, adequate directions for use , compliance with new serialization and other drug tracking requirements, and without patient-specific prescriptions from health care providers (so-called “office use” compounding).

As we mentioned back in July, courts continue to address a wide variety of procedural questions arising from the Biologics Price Competition and Innovation Act (“BPCIA”). The most recent is a decision from the Federal Circuit in an interlocutory appeal pending since July 2016 in the revised Amgen v. Hospira matter, Case 1:15-cv-00839 (D. Del.), No. 2016-2179 (Fed. Cir. 2017).  Like many of the recent BPCIA actions of late, this case raises questions about how a reference product sponsor can adequately assert its patent rights when the biosimilar sponsor doesn’t provide all of its manufacturing information.

Here, the Federal Circuit essentially told Amgen that it won’t mandate discovery to support a fishing expedition.  Alleging various failures to comply with the BPCIA, Amgen filed its initial patent infringement complaint against Hospira with respect to a biosimilar version of Epogen in the District Court of Delaware. In the course of this litigation, Amgen appealed to the Federal Circuit the District Court’s denial of its Motion to Compel Discovery of Hospira’s biosimilar manufacturing process and related cell-culture information.  In the alternative, Amgen requested a Writ of Mandamus order to compel discovery.  The Federal Circuit denied both of these requests as meritless.

Disposing of the Motion to Compel Discovery quickly, the Federal Circuit explained that it lacked jurisdiction over the Motion to Compel under the collateral order doctrine, as discovery rulings generally do not qualify for exception to the final judgement rule (requiring parties to wait until final judgment to appeal rulings). Amgen argued that waiting until final judgment renders the decision “effectively unreviewable,” but the Federal Circuit could not identify a clear-cut statutory purpose undermined by denying immediate appeal.

In the alternative, Amgen argued for mandamus under the All Writs Act ordering the District Court to compel discovery. The Federal Circuit explained that mandamus is a drastic remedy reserved for extraordinary cases with no other means to attain the requested relief; a party seeking this remedy must demonstrate “clear and indisputable” right to such relief.  Here, the Federal Circuit could not identify a “clear and indisputable” right to the cell-culture information.  The Court explained that the BCPIA, as interpreted by the Supreme Court in Sandoz v. Amgen, leaves two relevant avenues for Amgen to secure process information from Hospira: sue for infringement of the patents included on the patent list exchanged with Hospira or sue for infringement of a patent that could be identified on such a list of patents.  Because Amgen did not list any of or bring suit on any of its cell-culture patents, the cell-culture process is not relevant to any claim of infringement asserted by Amgen (or any of Hospira’s defenses or counterclaims).  Amgen even conceded as much.

The Federal Circuit emphasized that “[n]othing in Sandoz suggests that the BPCIA somehow supplants the preexisting rules of civil procedure.”  While a sponsor may access information through discovery and a sponsor may list or sue on a patent for which an applicant has not provided information – all without risking Rule 11 sanctions (targeting arguments that have no evidentiary support) – the usual rules governing discovery still apply in the BPCIA context.  While an outline of BPCIA-avenues for obtaining withheld information certainly helps provide clarity, the denial of this interlocutory appeal isn’t surprising.  Nothing in Sandoz or any other BPCIA decision indicates a shift in civil procedures rules, but it is always helpful to have that in writing.

For now, Amgen v. Hospira continues on . . . without cell-culture information.

The American Conference Institute’s (“ACI’s”) 5th annual “Paragraph IV Disputes Master Symposium” is coming up! The conference will take place from October 2-3, 2017 at the InterContinental Chicago Magnificent Mile in Chicago, Illinois.

ACI has put together an excellent program for conference attendees that include presentations from esteemed Judges and key representatives from the FDA and the PTO. In addition, attendees will get to hear from a virtual “who’s who” of Hatch-Waxman litigators and industry decision makers.  Hyman, Phelps & McNamara, P.C.’s Kurt R. Karst, will be speaking at a session titled “Brand and Generic Perspectives on the FDA Final MMA Rule: Assessing Its Impact on Hatch-Waxman Practice.”

FDA Law Blog is a conference media partner. As such, we can offer our readers a 10% discount off the current price tier.  The discount code is: P10-999-FDAB18.  You can access the conference brochure and sign up for the event here.

We look forward to seeing you at the conference. 

On August 3, 2017, FDA announced the availability of a draft guidance regarding child resistant packaging statements on drug products labels and labeling. To be clear, this draft guidance addresses the inclusion of a voluntary statement in the labeling for drug products, prescription as well as over-the-counter, that the packaging is child-resistant. FDA’s guidance does not address or affect the requirement for child resistant packaging under the Poison Prevention Packaging Act and the Consumer Product Safety Commission’s (CPSC’s) implementing regulations.

FDA asserts that the draft guidance “is intended to help ensure that such labeling is clear, useful, informative, and, to the extent possible, consistent in content and format.” Among other things, FDA recommends against the use of abbreviations, and recommends the use of the term “supplied” as opposed to “available.” The guidance further discusses the placement and appropriate terminology companies should use when including the statement in prescribing information, patient information, on the carton and immediate container labeling, and in the drug facts box (used on OTC products).

FDA does not explain what inspired FDA to issue a draft guidance for this type of label claims. It also provides no information about the interest of industry to use this type of voluntary claims on their drug products.

Comments must be submitted by October 2, 2017.

In a Complaint filed in the U.S. District Court for the District of Columbia last week, United Therapeutics Corporation (“UTC”) alleges that FDA unlawfully denied granting the company a period of orphan drug exclusivity upon the Agency’s December 20, 2013 approval of NDA 203496 for ORENITRAM (treprostinil) Extended-release Tablets for the treatment of Pulmonary Arterial Hypertension (“PAH”) (WHO Group 1) to improve exercise capacity. “FDA has unlawfully denied Orenitram its statutorily mandated exclusivity,” says UTC, which is represented by Hyman, Phelps & McNamara, P.C.  “FDA claimed that in order to receive orphan drug exclusivity for the oral formulation of treprostinil for use in the treatment of PAH, UTC ‘must demonstrate that oral treprostinil is clinically superior to the other treprostinil formulations by means of greater efficacy, greater safety or a major contribution to patient care (MCTPC).’”

FDA’s heightened standard for demonstrating clinical superiority to obtain orphan drug exclusivity was at the heart of a September 2012 lawsuit Depomed Inc. (“Depomed”) filed against FDA concerning GRALISE (gabapentin) Tablets (NDA 022544) (see our previous post here).  Depomed prevailed in the lawsuit.  In a September 2014 Memorandum Opinion, Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia decided the case on Chevron Step 1 grounds, finding that “the plain language of the Orphan Drug Act requires the FDA to recognize exclusivity for Gralise” (see our previous post here).  The court stated that the statute:

employs the familiar and readily diagrammable formula, ‘if x and y, then z.’ Congress has crafted its command to the Secretary of the FDA in a manner that sets forth two circumstances – a drug that has been designated for a rare disease or condition, and the FDA’s approval of a marketing application for that drug – that, if present, result in a particular consequence: a seven-year period of abstinence regarding marketing approval for other such drugs.

FDA decided not to appeal Judge Jackson’s decision. Instead, FDA published in the December 23, 2014 Federal Register a “clarification of policy” notice in which the Agency addresses the effects of the Depomed court decision (see our previous post here).  In that notice, FDA “double-downed” on the Agency’s pre-Depomed regulations.  In short, FDA says that Judge Jackson’s decision is limited to GRALISE, and that the Agency will continue to apply its clinical superiority regulatory paradigm insofar as orphan drug exclusivity is concerned.

“FDA continues to apply this extra-statutory requirement for proof of clinical superiority despite the fact that the same requirement was expressly rejected by Judge Jackson in Depomed,” says UTC in its Complaint. “Because FDA admitted that Orenitram was properly designated as an orphan drug for the treatment of PAH, the statute dictated that FDA grant Orenitram market exclusivity for seven years from the date of approval,” until December 20, 2020.

UTC alleges that FDA violated the Administrative Procedure Act, saying that FDA’s “denial of orphan drug exclusivity for Orenitram upon approval of the drug for its orphan-designated indication was arbitrary and capricious, an abuse of discretion, exceeds Defendants’ statutory authority, and is otherwise not in accordance with the law.” UTC seeks a declaration that the company “is entitled to seven years of orphan drug exclusivity for Orenitram for the treatment of PAH starting from December 20, 2013,” and, among other things, an order directing FDA “to recognize that UTC is entitled to all benefits of orphan drug exclusivity approval,” and “[i]njunctive relief effectuating UTC’s orphan drug exclusivity by enjoining Defendants from approving any other drug covered by UTC’s exclusivity for the treatment of PAH until December 20, 2020.”