By Ricardo Carvajal - 

FTC updated a Q&A on its Endorsement Guides, which set forth administrative interpretations of relevant provisions of the FTC Act as they apply to the use of endorsements and testimonials in advertising (the Endorsement Guides were last updated in 2009 – see out posting on that development here).  The Q&A, titled The FTC’s Endorsement Guides: What People Are Asking, has been expanded to address certain topics in more detail.

For example, in a section that guides endorsers on how to disclose the fact that they have been given something for their endorsement, the Q&A addresses uploads to YouTube and the use of Twitter:

If I upload a video to YouTube and that video requires a disclosure, can I just put the disclosure in the description that I upload together with the video?

No, because it’s easy for consumers to miss disclosures in the video description. Many people might watch the video without even seeing the description page, and those who do might not read the disclosure. The disclosure has the most chance of being effective if it is made clearly and prominently in the video itself. That’s not to say that you couldn’t have disclosures in both the video and the description.

What about a platform like Twitter? How can I make a disclosure when my message is limited to 140 characters?

The FTC isn’t mandating the specific wording of disclosures. However, the same general principle – that people get the information they need to evaluate sponsored statements – applies across the board, regardless of the advertising medium. The words “Sponsored” and “Promotion” use only 9 characters. “Paid ad” only uses 7 characters. Starting a tweet with “Ad:” or “#ad” – which takes only 3 characters – would likely be effective.

Questions to FTC about the Endorsement Guides can be submitted to endorsements@ftc.gov, for possible inclusion in future updates to the Q&A.

By Kurt R. Karst –

[FDA’s] ultimate conclusion that Vascepa, a drug “no active ingredient of which . . . has been approved” in a previous NDA, was not entitled to exclusivity, is contrary to the statute’s plain meaning.  Rather than explaining this discrepancy, the administrative decision only adds to the problem by emphasizing the divergence between the Agency’s regulatory inquiry and the statutory requirement.  Whether the problems with the FDA’s decision are characterized as failures under Chevron step one, step two, or the APA’s requirement of reasoned decision-making, the Agency’s decision must be set aside.

That’s the bottom line in a 40-page decision handed down by Judge Randolph D. Moss of the U.S. District Court for the District of Columbia on May 28, 2015 in a lawsuit lodged by Amarin Pharmaceuticals Ireland Limited (“Amarin”) against FDA on February 27, 2014 challenging the Agency’s February 21, 2014 Exclusivity Determination that Amarin’s VASCEPA (icosapent ethyl) Capsules, 1 gram, which FDA approved under NDA No. 202057 on July 26, 2012, is not eligible for 5-year New Chemical Entity (“NCE”) exclusivity.

In ruling for Amarin, Judge Moss granted Amarin’s Motion for Summary Judgment and denied FDA’s Cross-Motion for Summary Judgment.  (Amarin’s Reply/Opposition Brief and a Supplemental Submission from FDA are available here and here.)  (As an aside, Amarin is also challenging FDA in court over the company’s First Amendment right to distribute information about unapproved uses of VASCEPA – see here.)

As we previously reported, FDA’s rationale for denying NCE exclusivity for VASCEPA – and instead granting a period of 3-year new clinical investigation exclusivity – was that eicosapentaenoic acid (“EPA”), “the single active moiety in Vascepa, was also an active moiety contained in another, previously approved drug, Lovaza (omega-3-acid ethyl esters) Capsules (Lovaza).”  More specifically, FDA ruled that:

In cases where at least part of the mixture is well characterized and some components of the mixture that are consistently present and active are identifiable or have been identified, an approach in which the mixture is identified as both the active ingredient and the active moiety appears inconsistent with the definition of active moiety as a “molecule or ion. . . responsible for the physiological or pharmacological action of the drug substance.”  The approach that is the most consistent with the relevant definitions, facts, and policies present in this case is one in which the entire mixture is the single active ingredient, but that active ingredient may contain more than one component active moiety.  This approach recognizes that there can be a “one-to-many” relationship between the active ingredient and its component active moieties.

FDA’s Exclusivity Determination then laid out three criteria for when the Agency will consider certain component molecules of a naturally derived complex mixture to be previously approved active moieties for the purpose of determining a subsequent drug’s eligibility for NCE exclusivity:

(1) Characterization: The previously approved mixture has been characterized such that one or more specific molecules in the mixture have been identified;

(2) Consistent Presence: The evidence demonstrates that one or more specific molecules identified in criterion 1 are consistently present in the mixture; and

(3) Activity: The evidence demonstrates that the molecule or molecules identified in criteria 1 and 2 are responsible at least in part for the physiological or pharmacological action of the mixture, based on a finding that they make a meaningful contribution to the activity of the mixture.

This 3-part test did not sit well with Judge Moss, however, who says in his Opinion under a Chevron Step One analysis that FDA’s test “suffers from at least three difficulties”:

First, the contention that “active ingredient” means “active moiety” is at odds with the canon against surplusage. . . .  If “active ingredient” means “active moiety,” and “active moiety” is defined as a molecule excluding (among other things) those portions that render the molecule a salt or an ester, 21 C.F.R. § 314.108(a), there are no circumstances in which the parenthetical clause would have any coherent meaning. . . .  The statutory provision includes two references to the term “active ingredient.”  Defining either to mean “active moiety” would render the statute incoherent; reading both to mean “active moiety”—as required to maintain any semblance of consistency in statutory interpretation—results in a mind-numbing muddle.

The second problem with the Agency’s interpretation is that it requires the Agency to interpret the phrase “active ingredient” differently for purposes of the ANDA and exclusivity provisions of the Act. . . .  Absent good reason, it is safe to assume that Congress intended “active ingredient” to have the same meaning when it used that term in different, but closely related, places in the same statute. . . .  [FDA] argues before this Court that the exclusivity and ANDA provisions serve different purposes, because the exclusivity provision is designed to promote novelty while the ANDA provisions require the FDA to ascertain whether generic drugs are safe and effective.  But . . . while the two provisions do, of course, play different roles, they are part of a unified statutory scheme intended to strike a balance between fostering innovation and promoting access to affordable medications.

The third (and related) difficulty with the Agency’s approach is that its focus on a drug component that was never the subject of the FDA’s approval is also inconsistent with the statutory text, which considers whether the new drug contains an “active ingredient” “which has been approved in [a prior] application.”  21 U.S.C. §§ 355(c)(3)(E)(ii), 355(j)(5)(F)(ii) (emphasis added).  Under the FDA’s approach, the relevant “active moieties” are not even identified until the Agency acts on an application for exclusivity. . . .  The FDA’s approach fails to make temporal or substantive sense of the statutory reference to an “active ingredient” “which has been approved,” and thus, once again, is at odds with the statute.  [(Emphasis in original)]

Although Judge Moss could have ended his analysis at Chevron Step One, he continued on to Step Two, writing that FDA’s interpretation also fails there:

Focusing on the analysis actually contained in the FDA’s administrative decision, as opposed to the arguments made by counsel, it is apparent that the decision is both procedurally and substantively flawed.  Most notably, the administrative decision does not offer—or even attempt—any reasoned explanation for how its application of the regulatory focus on “active moiety” can be reconciled with the statutory focus on “active ingredient.” To the contrary, the decision affirmatively embraces the notion that “active ingredient” and “active moiety” have different meanings. . . .  The decision thus concedes that Vascepa’s “active ingredient”—EPA—is not an “active ingredient” in Lovaza . . . but because it concluded that EPA is an “active moiety” in both Vascepa and in Lovaza’s single-active-ingredient mixture, it denies exclusivity. 

The decision’s sole acknowledgment of the apparent divergence between the statutory and regulatory inquiries is both minimal and confounding.  In the course of its 24-page, single spaced administrative decision, the FDA refers to the statutory text only twice—in a background recitation of the governing legal framework, and in a parenthetical in a footnote.  [(Emphasis in original)]

With respect to that footnote – footnote 31, which quotes from FDA’s 1994 Final Rule promulgating, among other things, regulations governing 5-year NCE exclusivity – Judge Moss says that it conflicts with other portions of FDA’s February 21, 2014 Exclusivity Determination: “[A]lthough the footnote appears to treat the phrases ‘active ingredient’ and ‘active moiety’ as synonymous for purposes of the five-year exclusivity determination, the remainder of the [Exclusivity Determination] is emphatic in concluding that the terms have distinct meanings, at least in the context of naturally derived mixtures.”

Moreover, writes Judge Moss:

[A]lthough an administrative decision can rely on an agency’s prior consideration of an issue, the FDA has never addressed why the phrase “active ingredient” should be given different meanings in different provisions of the Act, let alone explained how the regulatory focus on “active moiety” can apply where the “active ingredient” and “active moiety” refer to different substances.  The Agency makes no attempt to explain how its approach furthers Congress’s purposes or is otherwise a reasonable policy choice, especially in light of the clear interest in providing notice to potential innovators of the exclusivity to which they might eventually be entitled.  And the FDA’s regulations do not provide any further gloss on this point.  The decision to identify a mixture’s “active moiety” based on information available at the time the FDA evaluates a subsequent drug’s request for exclusivity, rather than at the time drug was “approved,” is similarly unexplained, and . . . runs counter to the exclusivity provision’s purpose of incentivizing innovation.

The decision from Judge Moss ends a winning streak for FDA on legal challenges involving Hatch-Waxman matters, which we posted on earlier today.

Amarin commented in a press release that the company “believes based on the court's ruling that Vascepa is entitled to five-year marketing exclusivity starting from FDA's approval of Vascepa in July 2012, thus extending NCE exclusivity through July 25, 2017.”  The ruling also confirms, said Amarin, “that acceptance by FDA of [ANDAs] for generic versions of Vascepa is not permitted until July 2016.  The related statutory 30-month stay triggered by patent litigation following generic application resubmissions in July 2016 would then expire in January 2020.”  According to FDA's Paragraph IV Certifications List, the first ANDA submitted to FDA containing a Paragraph IV certification was received as of January 15, 2013.  FDA has 60 days to file an appeal to the U.S. Court of Appeals for the District of Columbia Circuit.

By Kurt R. Karst –  

Like rapid gunfire (judicial style), two courts – the U.S. District Court for the District of Maryland and the U.S. District Court for the District of Columbia – issued decisions on May 27, 2015 within hours of one another denying challenges to FDA’s decisions to approve generic versions of Otsuka Pharmaceutical Co.’s (“Otsuka’s”) ABILIFY (aripiprazole) and Spectrum Pharmaceuticals, Inc.’s (“Spectrum’s”) FUSILEV (levoleucovorin) for Injection with labeling omitting uses protected by separate periods of 7-year orphan drug exclusivity.  Labeling carve-outs, which we track on our Generic Drug Labeling Carve-Out Scorecard, seem to be all the rage these days (as well as controversies involving orphan drug exclusivity).  And, as Bob Pollock recently intimated on the Lachman Consultants Blog, labeling carve-out issues and controversies will likely continue to arise in the forseeable future as brand-name companies take aim at would-be generic competitors.

As we previously reported,  on December 12, 2014, FDA approved Supplemental NDAs for ABILIFY for the treatment of pediatric Tourette’s Disorder and later granted Otsuka a period of orphan drug exclusivity expiring on December 12, 2021.  Otsuka ultimately contended that as a result of this period of exclusivity, the company is entitled to a 7-year period of total market exclusivity such that FDA is precluded from approving any generic version of ABILIFY for any of its FDA-approved uses (absent a license from Otsuka) until December 12, 2021.  

Otsuka’s contention primarily relies on FDC Act § 505A(o), titled “Prompt approval of drugs under section 355(j) when pediatric information is added to labeling,” and also known as the “Anti-Glucophage  Provision” (or Section 11 of the Best Pharmaceuticals for Children Act).  That provision states:

(1) General rule – A drug for which an application has been submitted or approved under section 355(j) of this title shall not be considered ineligible for approval under that section or misbranded under section 352 of this title on the basis that the labeling of the drug omits a pediatric indication or any other aspect of labeling pertaining to pediatric use when the omitted indication or other aspect is protected by patent or by exclusivity under clause (iii) or (iv) of section 355(j)(5)(F) of this title.

(2) Labeling – Notwithstanding clauses (iii) and (iv) of section 355(j)(5)(F) of this title [(concerning 3-year new clinical investigation exclusivity)], the Secretary may require that the labeling of a drug approved under section 355(j) of this title that omits a pediatric indication or other aspect of labeling as described in paragraph (1) include—

(A) a statement that, because of marketing exclusivity for a manufacturer—

(i) the drug is not labeled for pediatric use; or

(ii) in the case of a drug for which there is an additional pediatric use not referred to in paragraph (1), the drug is not labeled for the pediatric use under paragraph (1); and

(B) a statement of any appropriate pediatric contraindications, warnings, or precautions that the Secretary considers necessary.

It is against this backdrop that Otsuka, on March 24, 2015, initially filed a Complaint and Motion for Summary Judgment against FDA in the U.S. District Court for the District of Maryland challenging certain FDA determinations with respect to the Supplemental NDA approval for pediatric Tourette’s Disorder.  That litigation later transformed into a Motion for a Temporary Restraining Order and/or Preliminary Injunction against FDA to stay the approval of ANDAs for generic versions of ABILIFY (and to prevent any further approvals), which occurred on April 28, 2015 at around the time FDA issued a Letter Decision  addressing the exclusivity issues raised in the case.  On April 29, 2015, Judge George J. Hazel denied Otsuka’s Motion for Temporary Restraining Order and/or Preliminary Injunction.  The case then moved into the summary judgment phase, with Cross-Motions for Summary Judgment from FDA (here), Otsuka (here), and several Intervenor-Defendants (here). 

On May 27, 2015, Judge Hazel denied Otsuka’s Motion for Summary Judgment and granted FDA’s and Intervenor-Defendants’ Motion for Summary Judgment.  After concluding that the appropriate level of deference afforded to FDA in the case is that provided by framework laid out by the U.S. Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984), Judge Hazel delved into the two-step analysis required under Chevron.  Under Chevron Step One, the District Court concluded that FDC Act § 505A(o) does not speak directly to the issue in the case:

[W]hen the Court considers the text of section 355a(o), as well as its legislative history, the Court cannot conclude that section 355a(o) clearly proscribes FDA’s ability to omit from a generic’s label information pertaining to pediatric orphan drug exclusivity.  Thus, if the Court’s role here was simply to “interpret and apply the statute to resolve a claim,” the Court would, without further analysis, side with the interpretation of FDA and Defendant-Intervenors. . . .  However, given 355a(o)’s silence on orphan drug exclusivity, the Court cannot find that Congress’s intent in enacting 355a(o), as it relates to its impact on orphan drugs, if any, is so clear as to completely foreclose Otsuka’s interpretation.  The Court must therefore proceed to Chevron step two.

Moving on to Chevron Step One, the District Court ruled that FDA’s interpretation of FDC Act § 505A(o) is reasonable:

The Court therefore finds that the FDCA, its legislative history, the case law, and FDA’s regulations all support the FDA’s construction of the statute that allows it to carve out an indication or other information from ANDA labeling when that indication or information is protected by orphan drug exclusivity as long as the ANDA with that carved out label remains safe and effective for the remaining non-protected conditions of use.  To be sure, Otsuka’s reading of section 355a(o) would nullify the limitation expressly written into section 360cc – that the exclusivity is given to a drug “for [the orphan] disease or condition” – and instead treat the orphan drug exclusivity as extending to the drug for any and all diseases and conditions, directly contradicting that provision’s text and the Fourth Circuit’s holding in Sigma-Tau.  If that was Congress’s intent, it is certainly left unclear by the statute and FDA’s interpretation is reasonable.

It’s unclear at this juncture whether or not Otsuka will appeal Judge Hazel’s decision to the U.S. Court of Appeals for the Fourth Circuit.

The second decision handed down on May 27, 2015 was from the U.S. District Court for the District of Columbia in a challenge from Spectrum to FDA’s February 24, 2015 denial of a Citizen Petition (Docket No. FDA-2014-P-1649) and March 9, 2015 approval of Sandoz Inc.’s (“Sandoz’s”) ANDA 203563 for a generic version of FUSILEV with labeling that omits certain information protected by orphan drug exclusivity. 

FUSILEV is approved to treat three conditions, two of which relate to counteracting the effects of the drug methotrexate, and one of which involves palliative treatment of patients with advanced metastatic colorectal cancer that is protected by orphan drug exclusivity until April 29, 2018.  Spectrum initially filed a Complaint and a Motion for Temporary Restraining Order and/or Preliminary Injunction alleging that FDA’s approval of ANDA 203563 in certain vial sizes for the unprotected methotrexate uses and with labeling omitting the orphan drug exclusivity-protected colorectal cancer use violated the law and the company’s orphan drug exclusivity.  (Sandoz, represented by Hyman, Phelps & McNamara, P.C., entered the case as an Intervenor-Defendant.) 

Spectrum’s Motion for Temporary Restraining Order was denied in an April 29, 2015 Minute Order from Judge Royce C. Lamberth, and a Hearing on Spectrum’s Motion for Preliminary Injunction was set for May 18, 2015.  The parties subsequently filed Cross-Motions for Summary Judgment.  According to Spectrum:

This case presents the question of whether FDA can lawfully approve a generic drug in a strength that is appropriate only for an indication that has been “carved out” based on the reference listed drug’s Orphan Drug Act exclusivity.  FDA has argued that it can do so.  But in order to justify its conduct here, FDA turned a blind eye to the requirements of the Orphan Drug Act, violated clear procedural mandates in the [FDCA] relating to drug shortages, and engaged in an abrupt departure from two of its own longstanding positions.  In violation of the FDCA and its own regulations, FDA has also taken affirmative steps to expedite the approval of a generic drug for the express purpose of facilitating the use of that drug in an unapproved “off-label” indication.  FDA’s conduct effectuates an unlawful labeling carve-out and therefore is arbitrary, capricious, and unlawful under the Administrative Procedure Act (“APA”). 

In a May 27, 2015 Memorandum Opinion (currently under seal) and Order, Judge Lamberth granted FDA’s and Sandoz’s Motions for Summary Judgment and denied Spectrum’s Motions for Preliminary Injunction and Summary Judgment.

By Douglas B. Farquhar –

When plaintiffs’ attorneys seek to recover damages because of alleged frauds committed on the federal government – obtaining massive attorneys’ fees and whistleblower bounties for doing so – they frequently argue that no claim is untimely, because of the wars in Iraq and Afghanistan.  It’s like the character in the old Dick Tracy comic strip who shouts, “Hold everything,” and time stands still, so the requirement to file a lawsuit within three years or ten years never applies.  Earlier this week, the Supreme Court held that the “Hold everything” moment is as fictitious as the comics, if not as funny.

The decision was issued in a case with a complicated procedural history brought under the Federal False Claims Act (FCA), which we have previously blogged about here, here, and here.  Under the statute, a plaintiff with previously undisclosed relevant information can file a lawsuit, on behalf of the United States, against companies or individuals who have presented false or fraudulent claims for payment to the federal government, or who have caused those claims to be presented.  The statute applies gargantuan penalties against wrongdoers, and encourages whistleblowers – and their attorneys – to come forward and file the lawsuits (under seal, pending a government review and investigation) by offering attorneys’ fees and a huge percentage of the damages secured (between 15 and 30 percent, depending on the circumstances).  Claims filed under the FCA have netted the federal government tens of billions of dollars in the last decade, and have spawned a plaintiffs’ Bar that does nothing but represent whistleblowers, called “relators” or “qui tam” plaintiffs who sue on behalf of the federal government.

As with nearly all statutes that provide for a civil recovery of damages, the FCA contains a statute of limitations, which requires the lawsuit to be filed within six years of a violation, or within three years after the government should have known about the violation (but in no event longer than ten years).  So, when the plaintiffs’ Bar and the government attorneys come demanding, the defense Bar has generally tried to limit damages to six years prior to the suit being filed (if the conduct has continued into that period) or to argue that the claims are time-barred because the six- or ten-year period expired.

In response, we frequently hear from the plaintiffs’ Bar that claims are not so limited, or barred, because the United States has been at war with Iraq since 2002, and the hostilities have not been completed there.  They rely on the Wartime Suspension of Limitations Act (“WSLA”), originally enacted after World War I to enable the government to concentrate on battles during wars and worry about investigating and prosecuting fraud later.  In the case that led to this week’s Supreme Court decision, a plaintiff brought a case relating to alleged fraud and misrepresentation in the provision of water purification services for U.S. forces in Iraq.  The complicated procedural history of the case led to an argument from defendants that most of the claims were time-barred.  The district court agreed, but the Fourth Circuit reversed and held that the statute of limitations stopped running from 2002 to the point that the lawsuit was filed (2012) due to the ongoing hostilities. 

The Supreme Court agreed with the district court, in a brief and tantalizing unanimous opinion authored by Justice Alito.  (Among other things, Justice Alito wrote, in criticizing a party’s interpretation of the term “pending” in the FCA, that, its interpretation would mean that Marbury v. Madison, a seminal case decided in 1803, is still “pending,” and, “So is the trial of Socrates.”)  The Court held that the WSLA suspends – or tolls – the statute of limitations only for criminal offenses against the United States involving fraud or attempted fraud against the federal government.  Because the claims of fraud under the FCA were civil, the WSLA did not apply.

One arrow removed from the quiver of the plaintiffs’ Bar.

By Kurt R. Karst –      

We like simplicity.  After all, it is, as Leonardo da Vinci reportedly once said, “the ultimate sophistication.”  We also like simple FDA-related legislation; but that’s not something we see all too often.  (We also don’t often see legislation addressing Prescription-to-Over-the-Counter (“Rc-to-OTC”) switches.)  Last week, however, a bill was introduced in the U.S. Senate by Senators Kelly Ayotte (R-NH) and Cory Gardner (R-CO) – S. 1438, the Allowing Greater Access to Safe and Effective Contraception Act – that provides an elegant remedy to a perceived problem.  (Though not eveyone supports the legislation – see here.)  As explained in a press release announcing the introduction of S. 1438:

The FDA has found a number of contraceptives to be proven safe and effective at preventing pregnancies and managing certain health conditions.  However, in order to access safe and effective contraceptives designed for routine use, currently a woman must visit her health care provider to receive a prescription.  The Allowing Greater Access to Safe and Effective Contraception Act would encourage manufacturers of routine-use contraceptives to file an application with the FDA to switch their products from prescription to OTC.  This legislation would not interfere with the FDA’s current process for determining safety and efficacy, maintaining FDA scientists’ and experts’ authority to make the final decision on whether a contraceptive should be made available OTC.

So what does the bill say, specifically?  Here are the few lines relevant to the FDC Act (Another section of S. 1438 would repeal the Affordable Care Act’s restriction on the use of health, medical and flexible savings accounts to buy OTC drugs without a prescription.):

(a) PRIORITY REVIEW OF APPLICATION.—Thc Secretary of Health and Human Services. . . shall give priority review to any supplemental application submitted under [FDC Act § 505(b)] for a contraceptive drug, provided that—

(1) the supplemental application is with respect to a drug intended for routine use; and

(2) if the supplemental application is approved, with respect to individuals aged 18 and older, such drug would not be subject to [FDC Act § 503(b)(1) concerning prescription status].

(b) FEE WAIVER.—The Secretary shall waive the [application user] fee under [FDC Act § 736(a)(1)] with respect to a supplemental application that receives priority review under subsection (a).

(c) OVER-THE-COUNTER AVAILABILITY.—Notwithstanding any other provision of law, with respect to individuals under age 18, a contraceptive drug that is eligible for priority review under subsection (a) shall be subject to [FDC Act § 503(b)(1)].

Although FDA’s preferred path for a partial Rx-to-OTC switch is the submission of a new NDA (and an NDA supplement for a full Rx-to-OTC switch), S. 1438 recognizes the supplemental pathway used for the partial Rx-to-OTC switch of PLAN B (levonorgestrel) Tablets a few years ago (see our previous posts here and here).

More interesting, however, is the significant benefit S. 1438 would confer to Rx-to-OTC switch applicants with a few strokes of the pen.  Priority review is a highly sought-after commodity.  Indeed, there are separate statutory provisions creating transferable priority review vouchers, such as the rare pediatric disease priority review voucher (FDC Act § 529) (see our previous post here), and the tropical disease priority review voucher (FDC Act § 524) (see our previous post here).  And in each of those programs, a special priority review voucher application user fee must be paid (in addition to other applicable user fees).  While S. 1438 would not create a transferable priority review voucher, the benefit is nothing to sneeze at.  After all, companies pay hundreds of millions of dollars to obtain priority review stats.  In fact, earlier this week, it was announced that Sanofi agreed to pay $245 million in cash for a rare pediatric disease priority review voucher FDA granted to another company a little more than two months ago (see our previous post here).  That’s a lot of dineros!

By Karla L. Palmer –

Last week, Senator David Vitter (R-LA) introduced S. 1406, the Saving Access to Compounded Medications for Special Needs Patients Act, to amend Section 503A of the Federal Food, Drug, and Cosmetic Act.  The amendment addresses confusion over a compounding pharmacy’s “distribution” of compounded preparations and, specifically, compounding for office use (i.e., compounding preparations that are not based on a prescription for an individually identified patient).  As with other provisions of Section 503A, the amendment would exempt compounding pharmacies from the new drug (Section 505), adequate directions for use (Section 502(f)(1)), and current good manufacturing (cGMP) requirements (Section 501(a)(2)(B))  if the drug product is “compounded and distributed to a practitioner where, as permitted under State law, the drug product is used in the treatment of or administered to a patient of the practitioner….”  The proposed provision addresses what many believe is a battle between FDA, various states, and an oversight on the part of Congress concerning office use compounding – as permitted by state law (based on the legislative history concerning re-enactment of Section 503A as part of the passage of Title I of the Drug Quality and Security Act in November  2013). 

The amendment would also require compounders to comply with United States Pharmacopeia standards, including the General Chapters related to the compounding of drug products.   And, it would  provide a needed amendment to the provisions related to the Memorandum of Understanding (“MOU”) (at Section 503A(b)(2)(D)(3)(b)), which, in the current statute, requires states to sign an MOU that  “addresses” the “distribution” of inordinate amounts of compounded drug products shipped interstate.  FDA attempted to garner support for its draft MOU back in 1998, prior to legal challenges to the constitutionality of Section 503A, but States and FDA never came to an agreement on its terms.  FDA recently proposed a new draft MOU (as blogged about here) and is awaiting comments from interested parties (the comment period expires in 23 days) prior publishing a final version.  As the statute currently reads, if a State does not enter into the final MOU with FDA, then compounders within that State are limited to distributing amounts out of state that do not exceed 5 percent of the total prescription orders “dispensed or distributed by such pharmacy or physician.”   The amendment would eliminate the confusing and contentious requirement that the MOU “address distribution” of inordinate amounts of compounded preparations shipped interstate, and instead require the MOU to “provide for appropriate investigation of complaints relating to compounded drug products distributed” out of state.  It also would eliminate requirement of FDA to consult with the National Boards of Pharmacy in the development of the standard MOU; instead, it would require FDA to consult with States.  We will keep you posed concerning movement of the bill.      

By John A. Gilbert, Jr. –

After more than four months without any substantive registrant decisions, the Drug Enforcement Administration (“DEA”) published 11 administrative decisions within two days last week.  Among these are two related cases involving allegations that a pharmacist failed to verify a prescriber DEA registration before filling a prescription for controlled substances.  JM Pharmacy Group, Inc. d/b/a Farmacia Nueva and Best Pharma Corp, 80 Fed. Reg. 28,667 (May 19, 2015) and Farmacia Yani, 80 Fed. Reg. 29,053 (May 20, 2015).  In both cases, the prescriber DEA number had been terminated or expired.

In overruling the Administrative Law Judges’ (“ALJ”) opinion in both cases, the Administrator held that pharmacists would not violate their corresponding responsibility by failing to verify a DEA registration unless the pharmacist had knowledge that the prescriber’s DEA registration had expired or was invalid.  Also, while finding that a pharmacist has some “duty” to verify a DEA registration, the Administrator determined that DEA has failed to provide guidance to the industry on the appropriate standard, and thus specifically declined to articulate a standard in either case.  These cases appear to narrow DEA’s enforcement authority against pharmacies that do not routinely verify DEA registrations; however, it remains unclear as to when a pharmacist must verify a DEA registration and the circumstances where DEA may find that a pharmacist “has reason to know” that a prescriber’s DEA registration is invalid.  This is all the more significant given that DEA has pursued administrative and civil penalties against registrants for failing to verify DEA registrations of terminated or expired practitioners.  

Both cases involved pharmacies located in Puerto Rico that had applied to become registered with DEA as retail pharmacies.  In the JM Pharmacy matter, DEA alleged that two pharmacies filled more than 170 prescriptions between January 2009 and November 2011 that were written by a doctor whose DEA certificate of registration (“COR”) had been revoked.  80 Fed. Reg. at 28,669.  The pharmacist admitted he never verified the practitioner registration because the pharmacy “understood” the registration was valid and relied on the fact that the patients’ insurance carriers had processed claims for the dispensed prescriptions.  Id. at 28,670.  In the Farmacia Yani matter, the government alleged that the pharmacy filled more than 200 controlled substance prescriptions over a time period of about 29 months for a prescriber whose COR had been expired during this entire period.  80 Fed. Reg. at 29,062.  In that case, the pharmacist also admitted she never tried to verify the prescriber registration.  

The DEA attorneys argued that the pharmacists violated their corresponding responsibility by failing to verify the prescriber’s DEA registration before filling a prescription for a controlled substance.  See 21 C.F.R. § 1306.04(a).  (In the Farmacia Yani matter, the government also argued that the pharmacist violated 21 U.S.C. §  843(a)(2), which imposes liability on a person who uses an expired DEA registration to dispense a prescription.  The Administrator acknowledged that this criminal law could apply in these types of cases, but stated that liability under this section only applied if the pharmacist acted knowingly or intentionally.  80 Fed. Reg. at 29,062.)  In both cases the ALJ agreed and found that the pharmacies had violated their corresponding responsibility.  However, the Administrator disagreed.  The Administrator noted that neither the Controlled Substances Act (“CSA”) nor DEA regulations require a pharmacist to verify a DEA registration before filling a prescription.  In fact, the Administrator found that the Agency had previously acknowledged there was no requirement that a pharmacist verify a DEA registration before filling a prescription when it promulgated its rule on electronic prescriptions.  Interim Final Rule on Electronic Prescriptions for Controlled Substances, 75 Fed. Reg. 16,236, 16,266 (Mar. 31, 2010).  In that rulemaking DEA stated that it is not necessary for a pharmacist who receives electronic prescriptions to check the CSA database every time to confirm that the prescribing practitioner is properly registered with the DEA.  Id.

Therefore, the Administrator ruled that the pharmacists did not violate their corresponding responsibility because there was no evidence the pharmacists in these cases had knowledge that the prescriber did not maintain a valid DEA registration.  The Administrator found that the requisite scienter for finding a violation of a pharmacist’s corresponding responsibility is knowledge or reason to know that a prescription is not valid.  Regarding the “reason to know” standard, the Administrator held that this means “deliberate ignorance or willful blindness.”  80 Fed. Reg. at 28,673.  Relying on the definition from the Supreme Court’s decision in Global-Tech Appliances, Inc. v. SEB, 131 S. Ct. 2060, 2070-71 (2011), the Administrator noted the Supreme Court “made clear that a ‘willfully blind defendant is one who takes deliberate actions to avoid confirming a high probability of wrongdoing and who can almost be said to have actually known the critical facts.’”  80 Fed. Reg. 28,672 (quoting Global-Tech Appliance, Inc., 131 S. Ct. at 2070-71).  The Administrator further quoted the Supreme Court’s finding that willful blindness occurs when: “1) the defendant subjectively believes that there is a high probability that a fact exists, and 2) the defendant must take deliberate actions to avoid learning of that fact.”  Id.  Consequently, the Administrator held that because there is no explicit statutory or regulatory duty for a pharmacy to determine whether a prescribing doctor’s COR is valid, the pharmacies in question did not violate their corresponding responsibility absent proof that they had any reason to know that the doctors’ CORs had been revoked.  The Administrator noted that the “corresponding responsibility to ensure the dispensing of valid prescriptions extends to the pharmacy itself.”  80 Fed. Reg. at 28,685.

The Administrator noted that DEA counsel failed to provide any expert testimony that a reasonable pharmacist would have inferred that the prescribers in question were not registered, or that this fact would have been so highly probable that the pharmacist should have refused to dispense the prescription.  Id. at 28,673, n.24.   The Administrator also found that these cases should be distinguished from the DEA’s decision in Holiday CVS, L.L.C., 77 Fed. Reg. 62,316 (Oct. 12, 2012), where the Administrator held CVS’s pharmacists liable under the corresponding responsibility standard for failing to verify a prescriber’s DEA registration.  Id. at 28,671.  The Administrator reasoned that, in Holiday CVS, the pharmacists were found to have had “knowledge” that the prescriber was not registered because the prescriber’s revocation of registration had been published in the Federal Register and the pharmacies maintained a database of DEA registrations for prescribers, which was available to the pharmacists when they filled a prescription.  Id. 

Despite determining that neither pharmacy in the present cases had violated its corresponding responsibility, the Administrator, relying on dictum from a prior decision, (Medicine Shoppe-Jonesborough, 73 Fed. Reg. 364, 381 (Jan. 2, 2008)), found that the pharmacists had violated a “duty” to periodically check to see that a prescriber retained authority to practice medicine and dispense controlled substances.  80 Fed. Reg. at 28,673; 80 Fed. Reg. at 29,063 (citations omitted).  Nevertheless, the Administrator made it clear that until the DEA publishes guidance to the regulated industry on the scope of this duty, the Administrator will give “nominal weight” to any such duty to verify DEA registrations because DEA did not prove that such “misconduct” was “intentional or knowing”  Id. at 28,673.  Specially, the Administrator found:

[I]f the Agency intends to enforce this duty in other cases, it must provide the regulated community with guidance as to its scope.  However, while such guidance can be announced in an adjudicatory proceeding, the process of adjudication is not well suited for doing so. . . .  Accordingly, I decline to set forth how frequently a pharmacy must verify that prescriber is registered.  

Id.  Thus, while the Administrator found that there is some “duty” to verify a DEA registration, and a failure to verify that registration is a breach of that duty, DEA cannot enforce that duty without providing guidance to the regulated community concerning its scope.   See id. 

In the JM Pharmacy case, the Administrator denied the applications the COR because she found the pharmacy had falsified the application for registration, but noted that only nominal weight would be given to evidence that the pharmacy failed in its duty to verify DEA registrations.  In the Farmacia Yani, case the Administrator gave little weight to respondent’s failure to verify DEA registrations and ruled that the application would be held in abeyance for six months; but the application would be granted if the respondent  completed a course on controlled substance dispensing and corresponding responsibility. 

These decisions raise questions as to when DEA may find that a pharmacist has sufficient “knowledge” to show that it has violated its corresponding responsibility in filling a prescription for an expired or terminated DEA COR.  For example, while the Administrator in the current cases would not impute “knowledge” under the corresponding responsibility standard to two pharmacies that — for more than two years — did not even try to verify a DEA registration, the Administrator reaffirmed her 2012 holding that two CVS pharmacies violated their corresponding responsibility because the prescriber’s revocation was published in the Federal Register and the company maintained a database of prescriber DEA registrations.  As noted by the ALJs in the current decisions, the pharmacies could have checked the registration on the DEA diversion website (which was accessible to any pharmacist with an internet connection), contacted the local DEA office or contracted with a private service to verify the DEA registration.  See, e.g., 80 Fed. Reg. at 28,686.  Moreover, the Administrator acknowledged that the availability of the DEA website had been published in the Federal Register as part of the electronic prescription Interim Final Rule.  75 Fed. Reg. at 16,266.  But the Administrator did not believe this was sufficient evidence that the pharmacists knew or had reason to know the prescribers’ DEA registration had been terminated or expired.  While the Administrator would not impute “knowledge” of these DEA registration verification sources to the pharmacies, it found that the CVS pharmacies should have had knowledge about the Federal Register notice regarding the prescriber revocation or what information was available in the CVS database (assuming the database was accurate concerning the validity of the DEA registrations).  This appears like a double standard.  Moreover, it is questionable whether the facts presented in Holiday CVS would satisfy the new “knowledge” standard articulated by the Administrator.   

While DEA has imposed a “knowledge” requirement on any determination whether a pharmacist has violated its corresponding responsibility for failing to verify a DEA registration, these decisions also establish a nebulous and undefined “duty” to verify a DEA registration.  But the Administrator’s ruling is clear: Until DEA promulgates guidance or regulations defining the duty to verify a DEA registration, the Administrator had held that DEA should give little weight to any evidence of a breach of that duty. 

By Riëtte van Laack –

Where’s the beef?  It’s in a recent announcement from the USDA Food Safety and Inspection Service (“FSIS”) concerning finalized labeling requirements for mechanically, blade- or needle-tenderized beef.   Under the new rule, published on May 18, 2015, raw or partially cooked mechanically tenderized beef products must bear labels that state that they have been mechanically tenderized.  The labels must also include cooking instructions — including the minimum internal temperatures and any hold times — so that consumers know how to safely prepare the products.

Tenderness is a key selling point for beef products.  To increase tenderness, some cuts of beef are tenderized mechanically by piercing them with needles or small blades in order to break up tissue.  These mechanically tenderized beef cuts look similar to non-tenderized cuts.  However, there is evidence that the mechanical tenderization of beef can pose food safety risks because it can transfer pathogens from the surface of the meat into the center.  Whereas intact cuts of muscle such as steaks are rendered free of pathogenic bacteria even if cooked “rare” or “medium rare” as long as the steaks are seared, mechanically tenderized cuts (just like ground beef products) must be cooked thoroughly to prevent that pathogens inside the cuts from surviving.  Since 2000, the Centers for Disease Control and Prevention received reports of six outbreaks attributable to needle or blade tenderized beef products in restaurants and consumers’ homes.  Because it is impossible to see whether meat has been mechanically tenderized, the new rule requires that the tenderized products be labeled with a disclosure statement.

The new rule also requires that, unless the product is fully cooked, the labels of mechanically tenderized beef products include validated cooking instructions so that consumers will know how to safely prepare them. The instructions must specify the minimum internal temperatures and any hold or “dwell” times for the products to ensure that they are fully cooked.  FSIS released an updated guidance for the use of federally inspected establishments in developing validated cooking instructions for mechanically tenderized products. 

The new labels need not be submitted to FSIS for approval.  FSIS will consider the labels of raw and partially cooked mechanically tenderized beef products as required in this final rule to be generically approved, provided that they meet applicable regulatory requirements and are not otherwise false or misleading in any particular. 

The main difference between the proposed and final rule is the compliance date.  In 2013, FSIS proposed to use the Uniform Compliance Date for Food Labeling Regulations, which in 2013 was January 1, 2016.  However, for rules issued in 2015, the Uniform Compliance Data is January 1, 2018.  In light of the public health benefits of the new requirements, FSIS set the compliance date 365 days from the date of the rule’s publication in the Federal Register, i.e., May 17, 2016.  FSIS predicts that the changes resulting from the new rule could prevent hundreds of illnesses per year.

The new rule applies only to mechanically tenderized beef, and not to tenderized poultry or other non-beef products.  Although FSIS considered this option, it concluded that there are insufficient data on the production practices and risks of consuming those products.

By Karla L. Palmer – 

In addition to FDA’s request for nominations for bulk substances that may be used by outsourcing facilities for compounding animal medications (here) and draft guidance on compounding animal drugs from bulk substances (here), FDA also announced earlier this week that it is seeking comments on specific issues raised by compounding animal drugs.  The topics FDA raises run the spectrum of potential issues that could arise (and many of which have arisen) concerning drug compounding generally.  FDA asked for comments on these specific topics; as the saying goes, interested parties should “speak now . . . :”   

• Should the final guidance address the issue of FDA-approved animal and human drugs that are in shortage or are otherwise unavailable (e.g., disruptions in the manufacture or supply chain; business decisions to stop marketing the drug; drug is subject to Agency action based on safety, effectiveness, or manufacturing concerns)? If so:
• How should these situations be addressed in the final guidance?
• How should the final guidance define the terms “shortage” and “unavailable”?
• What criteria should FDA use to determine if an approved animal or human drug is in shortage or otherwise unavailable?
• Do USP/NF chapters <795> and <797> provide suitable standards for animal drugs compounded by veterinarians, and if not, what standards of safety, purity, and quality should apply to animal drugs compounded by veterinarians?
• Should licensed veterinarians be able to sell or transfer an animal drug compounded from bulk drug substances by a state-licensed pharmacy or an outsourcing facility to owners or caretakers of animals under the veterinarian's care?
• How should FDA apply the condition to identify an individual patient when it is not possible to identify an individual animal (e.g., koi in a koi pond)?
• Should the final guidance include a condition on the amount/percentage of compounded animal drugs that a pharmacy/outsourcing facility can ship interstate?  If so, what would a reasonable amount be?
• Should facilities registered as outsourcing facilities under section 503B of the Federal Food, Drug, and Cosmetic Act (FDCA) be able to compound animal drugs from bulk drug substances that do not appear in Appendix A for an individually identified animal patient under conditions similar to those applicable to state-licensed pharmacies (i.e., the conditions contained in section III.A. of the draft guidance)?
• Is additional guidance needed to address the repackaging of drugs for animal use?
• How widespread is the practice of repackaging drugs for animal use?
• What types of drugs are repackaged for animal use, and why are they repackaged?
• Have problems been identified with repackaged drugs for animal use?
• Is additional guidance needed to address the compounding of animal drugs from approved animal or human drugs under FDCA § 512(a)(4) or (a)(5) and 21 C.F.R. pt. 530?
• Is additional guidance needed to address the compounding of animal drugs from bulk drug substances for food-producing animals?
• As one condition under which FDA does not generally intend to take action for certain violations of the FDCA if this and the other conditions are followed, FDA is proposing that state-licensed pharmacies and veterinarians report any product defects or serious adverse events associated with animal drugs they compound from bulk drug substances to FDA within 15 days of becoming aware of the product defect or serious adverse event.  Outsourcing facilities are required to report adverse events associated with the drugs they compound.  FDA believes it is important to receive this information from state-licensed pharmacies and veterinarians because there are no other State Departments of Health or Federal Agencies (e.g., the Centers for Disease Control and Prevention) charged with identifying and tracing animal injuries or disease associated with an animal drug compounded by these entities.  FDA has the following specific questions with respect to this proposed condition:
• How many state-licensed pharmacies and veterinarians compound animal drugs from bulk drug substances and would potentially be reporting product defects and serious adverse events to FDA?
• Are state-licensed pharmacies and veterinarians reporting the same or similar information to any state regulatory agency (e.g., state boards of pharmacy, state boards of veterinary medicine)?  If so, how many reports on average does each state-licensed pharmacy and veterinarian submit to these state agencies each year?
• For purposes of the guidance, how should FDA define the terms “product defect” and “serious adverse event”?
• Can FDA achieve the same objective of identifying and tracing the source of injuries or disease associated with an animal drug compounded from a bulk drug substance through means other than product defect and serious adverse event reporting, and if so, what other means?  For example, would reports of product defects alone achieve the same objective?

Comments may be submitted at any time, but to ensure FDA considers comments prior to finalizing guidance, they should be submitted within 90 days of publication of the request for comments in the Federal Register, or by August 17, 2015. 

By Kurt R. Karst –      

On May 19th, the House Committee on Energy and Commerce took up consideration of the 21st Century Cures Act.  The bill, H.R. 6, is a 309-page behemoth that was officially introduced on May 19th, and is the fourth iteration of the bill (see our previous post here on the prior versions).  If enacted, the 21st Century Cures Act would dramatically change the the development and approval of medical products in the United States. 

Representatives Fred Upton (R-MI) and Diana DeGette (D-CO) have spearheaded the Cures Act effort.  And the bill is being put on fast-track.  Representative Upton has indicated that “[h]is goal is to have the bill on the floor in June, go to conference with the Senate in the fall and then send it to the president before the end of the year.”  That’s a pretty aggressive schedule considering that the U.S. Senate – and in particular Senators Richard Burr (R-NC) and Lamar Alexander (R-TN), Chairman of the Senate Health, Education, Labor and Pensions Committee – have yet to weigh in on the Cures Act initiative and seem to have their own ideas for change, as outlined in a white paper released earlier this year.

Meanwhile, other members of the U.S. House of Representatives have decided to introduce stand-alone bills, either breaking out provisions from the 21st Century Cures Act, or seeking consideration of legislation addressing new FDA-related topics.  Indeed, May19th saw the introduction of at least 17 separate bills to amend the FDC Act.  (Other stand-alone bills, like H.R. 2456 and H.R. 2414, would amend related laws, such as the PHS Act, to ensure the sharing of data generated from research with the public, and to facilitate the responsible communication of scientific and medical developments.)  Here’s a list of the FDA bills introduced on May 19th (not including the 21st Century Cures Act): 

• H.R. 2459 – To amend the Federal Food, Drug, and Cosmetic Act to enhance the reporting requirements pertaining to use of antimicrobial drugs in food animals
• H.R. 2455 – To amend the Federal Food, Drug, and Cosmetic Act with respect to precision medicine
• H.R. 2452 – To amend the Federal Food, Drug, and Cosmetic Act with respect to facilitating dissemination of health care economic information
• H.R. 2444 – To authorize the Commissioner of Food and Drugs to award grants for studying the process of continuous drug manufacturing
• H.R. 2443 – To amend the Federal Food, Drug, and Cosmetic Act with respect to CLIA waiver study design guidance for in vitro diagnostics
• H.R. 2438 – To amend the Federal Food, Drug, and Cosmetic Act with respect to broader application of Bayesian statistics and adaptive trial designs
• H.R. 2435 – To amend the Federal Food, Drug, and Cosmetic Act with regard to the Reagan-Udall Foundation
• H.R. 2433 – To amend the Federal Food, Drug, and Cosmetic Act with respect to enhancing combination products review
• H.R. 2428 – To amend the Federal Food, Drug, and Cosmetic Act with respect to humanitarian device exemption applications
• H.R. 2427 – To amend the Federal Food, Drug, and Cosmetic Act with respect to advisory committee process
• H.R. 2426 – To amend the Federal Food, Drug, and Cosmetic Act with respect to easing regulatory burden with respect to certain class I and class II devices
• H.R. 2425 – To amend the Federal Food, Drug, and Cosmetic Act with respect to the recognition of standards
• H.R. 2424 – To amend the Federal Food, Drug, and Cosmetic Act with respect to training and oversight in least burdensome appropriate means concept
• H.R. 2423 – To amend the Federal Food, Drug, and Cosmetic Act with respect to valid scientific evidence
• H.R. 2422 – To amend the Federal Food, Drug, and Cosmetic Act with respect to third-party quality system assessment
• H.R. 2416 – To amend the Federal Food, Drug, and Cosmetic Act to evaluate the potential use of evidence from clinical experience to help support the approval of new indications for approved drugs, and for other purposes
• H.R. 2415 – To amend the Federal Food, Drug, and Cosmetic Act to provide for establishment of a streamlined data review program

The introduction of these bills in the House on May 19th follows an already-busy May for new FDA-related legislation.  As noted on our popular FDA Legislation Tracker we also recently saw the introduction of the Sensible Oversight for Technology which Advances Regulatory Efficiency (SOFTWARE) Act (H.R. 2396), the Stop Tampering of Prescription Pills Act of 2013 (H.R. 2335) (unchanged from previous versions – see our previous post here), legislation to to authorize priority review for breakthrough devices (H.R. 2337),  and legislation to provide for the development and use of patient experience data to enhance the structured risk-benefit assessment framework  (H.R. 2338). 

By Karla L. Palmer – 

Notwithstanding recognizing that sections 503A and 503B of the Federal Food, Drug, and Cosmetic Act (FDCA) apply to compounding of human drug products, earlier this week the Food and Drug Administration (FDA) issued draft guidance on animal drug compounding, including compounding by section 503B outsourcing facilities.  FDA also withdrew its vastly different prior Compliance Policy Guide (608.400) for animal drugs promulgated over 12 years ago (and later revised).  It also issued a request for nominations for bulk substances that may be used in animal drug compounding by an outsourcing facility (blogged separately), which will serve as Appendix A to the guidance.  Lastly, FDA also separately requested comments from the public on a number of separate topics concerning animal drug compounding.  FDA is seeking comments on certain specific issues so it can determine whether additional guidance is needed on, for example, drug repackaging or compounding from approved drug products for animal use.  We will set these forth comment topics in a separate blog post as well.  Comments are due 90 days from publication in the Federal Register, or on August 17, 2015.

The “non-binding” draft guidance describes conditions under which FDA does not intend to initiate enforcement action against state-licensed pharmacies, licensed veterinarians, and outsourcing facilities (“animal drug compounders”).  However, these animal drug compounders must meet all the conditions set forth in the draft guidance; in addition outsourcing facilities must compound from a bulk substance that appears in Appendix A of the guidance.  The draft guidance explicitly does not address compounding from approved animal or human drugs pursuant to the extra label use provisions of the law and does not address repackaging.  Note the Appendix is not final (and thus lists no bulk substances). 

Like the former withdrawn guidance, FDA states that, to be legally marketed, new animal drugs must be approved under FDCA § 512, or on the list of Legally Marketed Unapproved New Animal Drugs for Minor Species at FDCA § 572.  Otherwise, FDA considers compounded animal drugs to be unapproved, unsafe, and adulterated.  FDA recognizes limited exemptions from certain statutory requirements for approved animal drugs for extra label use under the conditions set forth in FDCA § 512 and 21 C.F.R. pt. 530.  FDA is concerned about the use of drugs compounded from bulk for use in animals when approved alternatives exist that can be used in a labeled or extra-labeled manner. 

FDA does not plan to take enforcement action under §§ 512(a) (new animal drug approval requirements); 501(a)(5) (unsafe new animal drug under § 512); 502(f)(1) (adequate directions for use); and 501(a)(2)(B) (current good manufacturing practices (cGMP) requirements) so long as animal drug compounders comply with the following conditions, briefly summarized below.  However, FDA warns that, until the draft guidance is finalized, stakeholders should be aware that FDA intends to look at the totality of the circumstances when determining whether to take enforcement action for unlawful animal drug compounding activities.

Licensed Pharmacies

1.  The drug must be compounded by a state licensed pharmacy.

2.  The drug must be dispensed for an individually identified animal patient.  Specific limits on compounding in advance (based on amounts compounded over a 14-day period within previous six months).

3.  The drug is not intended for use in food producing animals (as specifically defined); prescription must contain the statement, “this patient is not a food-producing animal.”

4.  If the drug contains a bulk substance that is a component of any marketed animal/human drug:

a.      There is a change between the compound and the FDA-approved drug that produces a “clinical difference” for the individually identified animal patient as determined by the veterinarian, and

b.      The prescription or accompanying documentation contains a statement that the change would produce a clinical difference for the individually identified animal patient.

5.   If there is an approved human or animal drug with the same active ingredients, the pharmacy must determine and document that the compounded drug cannot be made from the approved drug.

6.  The pharmacy must receive from the veterinarian, in addition to any information required by state law:

a.  Identification of the species that will receive the drug, and

b.  The statement: “There are no FDA-approved animal or human drugs that can be used as labeled or in an extralabel manner under section 512(a)(4) or (5) and 21 CFR part 530 to appropriately treat the disease, symptom, or condition for which this drug is being prescribed.”

7.  The bulk substance must be manufactured by an FDA-registered establishment under FDCA § 510, and accompanied by a certificate of analysis. 

8.  The drug must be compounded in accordance with USP/NF chapters <795> and <797> (and note that the sterile drug must be compounded in an area with air quality that meets or exceeds ISO 5 standards). 

9.  The drug must not be sold/transferred by an entity other than the compounder.  Sale or transfer does not include administration by a veterinarian.

10.  The pharmacy must report on a Form FDA-1932a any product defect or serious adverse event associated with animal drugs it compounded from bulk substances within 15 days of becoming aware of it. 

11.  The label of any compounded drug must indicate the species of the intended animal patient, and name of animal and owner.

Licensed Veterinarians

1.  The drug must be compounded and dispensed for an individually identified patient under his or her care.

2.  The drug must not be intended for use in food producing animals

3.  If the bulk substance is a component of an approved human or animal drug, there must be a change made for the individually identified patient that produces a clinical difference as determined by the veterinarian.

4.  There are no approved animal or human drugs that can be used as labeled or in an extralabel manner under §§ 512(a)(4) and (5) and 21 C.F.R. part 530 to appropriately treat the disease/symptom/condition for which the drug is being prescribed.

5.  Must be compounded in accordance with USP/NF chapters <795> and <797> (note that the  sterile drug must be compounded in an area that meets or exceeds ISO 5 air quality standards). 

6.  The bulk substance must be manufactured by an FDA-registered establishment under FDCA § 510, and accompanied by a certificate of analysis. 

7.  The drug may not be sold/transferred by the veterinarian compounding the drug.  This does not include administration by the veterinarian or dispensing of a drug compounded by the veterinarian to the owner of an animal under his or her care.

8.  The pharmacy must report on a Form FDA-1932a any product defect or serious adverse event associated with animal drugs it compounded from bulk substances within 15 days of becoming aware of it. 

9.  The label must indicate the species, name of the animal and owner.

Outsourcing Facilities

1.  The drug must be compounded only from bulk substances appearing on Appendix A (note: list to be determined after nomination process).

2.  The drug must be compounded by or under the direct supervision of a licensed pharmacist. 

3.  The drug must not be intended for use in food-producing animals; accompanying documentation must state: “This drug will not be dispensed for or administered to food-producing animals.”

4.  The drug must be compounded in accordance with cGMP.

5.  The bulk substance used in compounding must be manufactured by a FDA-registered establishment under FDCA § 510, and accompanied by a certificate of analysis. 

6.  The drug cannot be sold/transferred by an entity other than the facility that compounded the drug.  Sale or transfer does not include administration by a veterinarian to a patient under his or her care.

7.  The facility must report on a Form FDA 1932a any product defect or serious adverse event associated with animal drugs it compounded from bulk substances within 15 days of becoming aware of it.

8.  All animal drugs compounded must be included on the report to FDA required under Section 503B. (See FDCA § 503B(b)(2).)

9.  The veterinarian’s prescription must state that the drug is intended to treat the species and conditions for which the substance is listed in Appendix A.

10.  The (what will have to be a very large….) label must include the following: (a) active ingredients; (b) dosage form, strength, and flavoring, if any; (c) directions for use; (d) quantity/volume; (e) the statement “Not for resale.”; (f) the statement “For use only in [fill in species and any associated condition or limitation listed in Appendix A].”; (g) the statement “Compounded by [name of outsourcing facility].”; (h) lot/batch number of drug; (i) special storage and handling instructions; (j) date of compounding; (k) beyond use date (BUD); (l) veterinarian prescribing/ordering the drug; (m) address and phone number of the outsourcing facility that compounded the drug; (n) inactive ingredients; (o) the statement “Adverse events associated with this compounded drug should be reported to FDA on a Form FDA 1932a.”; (p) if the drug is compounded pursuant to a patient specific prescription, the species and name of the animal patient, name, and name of the owner or caretaker.

Comments should be submitted to Docket No.  FDA-2003-D-0202: Draft Guidance for Industry #230: Compounding Animal Drugs from Bulk Drug Substances. 

By Karla L. Palmer – 

The Food and Drug Administration (FDA) announced earlier this week that it is seeking nominations for bulk substances that may be used by outsourcing facilities to compound drugs for use in animals.  FDA will ultimately include the listed substances in Appendix A to FDA’s guidance for “Compounding Animal Drugs from Bulk Substances.”  The draft of that guidance was released earlier this week (and blogged about here).  Bulk substance nominations should be submitted within 90 days after publication of the notice (or by August 17, 2015) to ensure FDA’s consideration (but FDA noted it cannot guarantee that all drugs nominated during the nomination process will be considered prior to initial publication of Appendix A).  After the comment period is closed, nominations to add or remove substances from the list may be submitted by citizen petition. 

FDA’s request for nominations notes there are “limited circumstances” where a drug compounded from bulk substances should be available for office use; FDA is proposing in its related draft guidance that outsourcing facilities compound animal drugs only from the bulk substances listed in Appendix A.  FDA will exercise enforcement discretion for those facilities that compound animal drugs using Appendix A’s listed bulk substances.  Although an outsourcing facility may fill an order for compounded animal drugs from bulk substances without obtaining an individually identified patient prescription, “outsourcing facilities cannot dispense a compounded drug to the owner or caretaker of an animal without a prescription for that individually identified animal patient.”  FDA specifically notes that Appendix A only applies to outsourcing facilities, and does not limit what bulk drug substances state-licensed pharmacies and veterinarians can use in compounding in accordance with the draft guidance.  In addition, the underlying draft guidance only addresses compounding from bulk substances; it does not apply to the compounding from approved animal or human drugs.

The list will be limited to bulk substances (but not inactive ingredients) that address all of the following criteria:

• There is no marketed approved, conditionally approved, or index listed animal drug that can be used as labeled to treat the condition;
• There is no marketed approved animal or human drug that could be used under FDCA section 512(a)(4) or (a)(5) and 21 CFR Part 530 (addressing extra-label use of approved animal and human drugs) to treat the condition;
• The drug cannot be compounded from an approved animal or human drug;
• Immediate treatment with the compounded drug is necessary to avoid animal suffering or death; and
• FDA has not identified a significant safety concern specific to the use of the bulk drug substance to compound animal drugs (under the listed conditions and limitations).

Concerning active ingredients, nominations must be for specific bulk substances that meet FDA’s definition of a bulk substance in 21 C.F.R. §207.3(a)(4).  As set forth in further detail in the notice, nominations must also include the following:

1. “Confirmation” that the nominated substance is a bulk substance including an explanation of why the substance is considered an active ingredient when it is used in the compounded product, citing to “specific sources that describe the active properties of the substance”;
2. A general background on the bulk drug substance;
3. Information on the animal drug products that will be compounded with the bulk drug substance (including dosage form, route of administration, strengths, etc.);
4. Information detailing the need for the animal drug products that will be compounded with the bulk drug substance.  FDA states that to be able to meaningful evaluate and review the substance, it needs more than a general explanation.

FDA adds that following information about “need” is necessary:

• A statement identifying the species and condition the drug is intended to treat;
• Bibliography of safety and efficacy data if available including peer reviewed literature;
• List of approved/index listed/conditionally approved  animal drug products for the condition that the compounded drug is intended to address;
• If there are approved drugs for the condition, why the compounded drug from the bulk substance is necessary, supported by  relevant literature;
• Review of veterinary literature to determine whether there are any approved or extralabel uses of the drug that could treat the condition in the species that the compounded drug is intended to address;
• If the bulk substance is an active ingredient in an approved animal or human drug, an explanation (with appropriate supporting scientific data) of why it cannot be compounded from the approved drug; 
• An explanation (supported by relevant veterinary literature) of why the animal drug product must be available to the veterinarian for immediate treatment to avoid animal suffering or death.  Nominations should include information documenting that “animal suffering or death will result if treatment is delayed until a compounded animal drug product can be obtained pursuant to a prescription for an individually identified patient”; and
• A discussion of safety concerning, including relevant literature.  Safety concerns must include an explanation with supporting literature of why those concerns should not preclude inclusion on the list. 

FDA warns that it will be unable to consider the bulk substance for Appendix A unless adequate information is submitted.  FDA encourages submission of nominations in a format that “explicitly addresses each item … listed in the order that they appear” in the notice.     

Hyman, Phelps & McNamara, P.C., the nation’s largest boutique food and drug regulatory law firm, seeks a junior to mid-level associate with substantive experience in medical devices and other areas of food and drug law and regulation to assist with a growing practice.  Strong verbal and writing skills are required.  Compensation is competitive and commensurate with experience.  HP&M is an equal opportunity employer.

Please send your curriculum vitae, transcript, and a writing sample to Jeffrey N. Wasserstein (jwasserstein@hpm.com).  Candidates must be members of the DC Bar or eligible to waive in.

By Kurt R. Karst –      

Each month we pore over the latest Orange Book Cumulative Supplement in an effort to keep our popular 180-Day Exclusivity Tracker as current as possible, and to look for interesting precedents.  Last month, one entry in particular caught our attention.  It was for ANDA 200828 for Lamotrigine Orally Disintegrating Tablets, 25 mg, 50 mg, 100 mg, and 200 mg, a generic version of GlaxoSmithKline LLC’s LAMICTAL ODT (NDA 022251).  The Orange Book Cumulative Supplement showed the addition of periods of “PC” exclusivity (i.e., 180-day patent challenge exclusivity) expiring on September 28, 2015 for all four strengths covered under the ANDA now owned by Impax Laboratories, Inc. (“Impax”) (formerly owned by Watson Laboratories, Inc. (“Watson”)).  What made the entry of 180-day exclusivity interesting is that FDA’s July 15, 2013 letter approving the ANDA included the Agency’s all-too-familiar 180-day exclusivity “punt” language:

With respect to 180-day generic drug exclusivity, we note that Watson was the first ANDA applicant for Lamotrigine Orally Disintegrating Tablets, 25 mg, 50 mg, 100 mg, and 200 mg, to submit a substantially complete ANDA with a paragraph IV certification.  Therefore, with this approval, Watson may be eligible for 180 days of generic drug exclusivity for Lamotrigine Orally Disintegrating Tablets, 25 mg, 50 mg, 100 mg, and 200 mg.  This exclusivity, which is provided for under section 505(j)(5)(B)(iv) of the Act, would begin to run from the date of the commercial marketing identified in section 505(j)(5)(B)(iv).  The agency notes that Watson failed to obtain tentative approval of this ANDA within 40 months after the date on which the ANDA was filed. See section 505(j)(5)(D)(i)(IV) (forfeiture of exclusivity for failed to obtain tentative approval).  The agency is not, however, making a formal determination at this time of Watson’s eligibility for 180-day generic drug exclusivity.  It will do so only if another paragraph IV applicant becomes eligible for full approval (a) within 180 days after Watson begins commercial marketing of Lamotrigine Orally Disintegrating Tablets, 25 mg, 50 mg, 100 mg, and 200 mg, or (b) at any time prior to the expiration of the listed patents if Watson has not begun commercial marketing. Please submit correspondence to this ANDA informing the agency of the date commercial marketing begins.

FDA’s Orange Book entry showing the addition of 180-day exclusivity could mean only one thing: that the Agency was forced into a position of determining whether or not eligibility for 180-day exclusivity was forfeited.  So we obtained a copy of FDA’s exclusivity determination to make sure.  And sure enough, FDA ruled on October 29, 2014 – just one day before tentatively approving Par’s ANDA 204158 for  Lamotrigine Orally Disintegrating Tablets, 25 mg, 50 mg, 100 mg, and 200 – that Watson (now Impax) maintained eligibility for exclusivity because of a change in the requirements for approval with respect to labeling. 

By way of background, under FDC Act § 505(j)(5)(D)(i)(IV), one of the six 180-day exclusivity provisions added to the FDC Act by Title XI of the 2003 Medicare Modernization Act (“MMA”), 180-day exclusivity eligibility is forfeited if:

The first applicant fails to obtain tentative approval of the application within 30 months after the date on which the application is filed, unless the failure is caused by a change in or a review of the requirements for approval of the application imposed after the date on which the application is filed.

The 2007 FDA Amendments Act (“FDAAA”) clarified FDC Act § 505(j)(5)(D)(i)(IV), such that if “approval of the [ANDA] was delayed because of a [citizen] petition, the 30-month period under such subsection is deemed to be extended by a period of time equal to the period beginning on the date on which the Secretary received the petition and ending on the date of final agency action on the petition (inclusive of such beginning and ending dates) . . . .” (FDC Act § 505(q)(1)(G)).  The 2012 FDA Safety and Innovation Act (“FDASIA”) made further changes with respect to the application of FDC Act § 505(j)(5)(D)(i)(IV) to certain ANDAs (see our previous post here).  Although the FDAAA provision did not come into play in the case of ANDA 200828, the FDASIA provision did, as noted below. 

For years – ever since the July 31, 2006 approval of ANDA 076969 for Metoprolol Succinate Extended-Release Tablets USP, 25 mg (see our previous post here) – FDA has been deciding not to decide on eligibility for 180-day exclusivity when there is no immediate need to do so.  It’s been rare that FDA has had to resolve 180-day exclusivity punts. 

The first punt resolution was made in the context of ANDA No. 200899 for Dutasteride Capsules, 0.5 mg.  As we previously posted, in that case, FDA ruled that eligibility for 180-day exclusivity was forfeited.  The second punt resolution was made in the context of ANDA 202608 for Methylphenidate HCl Extended-release Tablets, 27 mg, 36 mg, and 54 mg, as we previously noted.  Although FDA ruled that 180-day exclusivity was not forefeited (a punt return), it was a bit of an oddball case.  First, the drug at issue – a generic version of CONCERTA Extended-release Tablets – is a pre-MMA drug not subject to the failure-to-obtain-timely-tentative-approval forfeiture provision at FDC Act § 505(j)(5)(D)(i)(IV).  Second, FDA appears to have made the punt decision in the context of then-ongoing litigation that could have affected an exclusivity determination.  So the latest decision out of FDA concerning Lamotrigine Orally Disintegrating Tablets might be the first post-MMA punt return decision. 

Watson submitted ANDA 200828 to FDA on December 21, 2009.  But at the time of submission, the ANDA did not contain a Paragraph IV certification, and therefore, Watson was not a “first applicant” eligible for 180-day exclusivity.  First applicant status was conferred on April 14, 2011,when the ANDA was amended to include a Paragraph IV certification to U.S. Patent No. 7,919,115 listed in the Orange Book for LAMICTAL ODT.  That made ANDA 200828 an application subject to the later-enacted provisions in the 2012 FDASIA extending the 30-month deadline under FDC Act § 505(j)(5)(D)(i)(IV) to 40 months.  But as FDA noted in the Agency’s July 15, 2013 approval letter:

For applications submitted between January 9, 2010, and July 9, 2012, section 1133 of the Food and Drug Administration Safety and Innovation Act (FDASIA) (P.L. 112-144) extends this period to 40 months.  This includes applications such as ANDA 200828 “amended during such period to first contain [a PIV certification]…”  Watson therefore qualifies for 40 (not 30) months in the application of section 505(j)(5)(D)(i)(IV) (forfeiture of exclusivity for failed to obtain tentative approval).  However, this 40-month period dates from the date of receipt of the ANDA (December 21, 2009), not the date the paragraph IV amendment was received. [sic] (April 14, 2011), because this ANDA does not meet the terms of section 1133(b) of FDASIA.

But that’s all irrelevant now given FDA’s October 29, 2014 exclusivity determination.  After going through the relevant law, including FDA’s position rejecting “but-for” causation in analyzing FDC Act § 505(j)(5)(D)(i)(IV) (see our previous post here), FDA turned to the facts at hand.  And, specifically, to changes to the RLD (LAMICTAL ODT) labeling.  According to FDA:

A fifth labeling change was approved on August 1, 2012, approximately 8 months before the forfeiture date.  This labeling change provided for Agency-requested updates to the Use in Specific Populations/Nursing Mothers (section 8.3) and Patient Counseling information/Pregnancy and Nursing (section 17.6) section of the labeling, as well as corresponding changes to the Medication Guide.

FDA initially reviewed Impax’s labeling on May 11, 2010, and identified a number of deficiencies.  Impax submitted an amendment responding to FDA’s deficiencies on July 13, 2010.  FDA reviewed Impax’s amendment on October 23, 2011, and identified additional deficiencies.  One of the deficiencies asked Impax to update its package insert and medication guide labeling to be in accord with the August 4, 2011 approved labeling changes for the RLD.  Impax submitted an amendment responding to FDA’s deficiencies on April 2, 2012.  Before FDA reviewed lmpax’s April 2, 2012 amendment, Impax submitted another labeling amendment on September 10, 2012, to update their labeling to be consistent with the RLD labeling changes approved on August 1, 2012.  FDA reviewed Impax’s April 2, 2012 and September 10, 2012 labeling amendments and on April 24, 2013, three days after the 40-month forfeiture date of April 21, 2013, FDA notified Impax of additional labeling deficiencies.  Impax submitted an amendment on May 7, 2013.  FDA reviewed Impax’s amendment, and ultimately determined Impax’s labeling to be acceptable on May 30, 2013. . . .

We conclude that there were changes to the requirements for approval with respect to labeling, as outlined above.  We also find evidence that these labeling changes caused Impax's failure to obtain tentative approval by the forfeiture date.  Specifically, changes to the RLD labeling were approved on August 1, 2012, and Impax submitted a labeling amendment on September 10, 2012 to update their labeling.  At the 40-month date of April 21, 2013, Impax’s labeling amendment had not been reviewed by FDA, and the labeling deficiencies issued by FDA after the 40-month forfeiture date related to the changes to the RLD labeling that occurred after Impax submitted its ANDA.

So, there you have it – what seems to be the first true post-MMA 180-day exclusivity punt return.

By Jennifer D. Newberger –

In March 2012, FDA issued a guidance document, Factors to Consider when Making Benefit-Risk Determinations in Medical Device Premarket Approval and De Novo Classifications.  As we discussed in our blog post on that guidance, one important discussion in that guidance had to do with patient perspective of benefit-risk and how FDA might take that into consideration when deciding whether to approve premarket approval (PMA) applications or de novo submissions.  On May 13, 2015, FDA expanded this discussion with a 32-page draft guidance addressing how FDA might consider patient preference information, the types of data and information to include in a submission, and how to incorporate patient preference information into a product’s labeling.  See Patient Preference Information – Submission, Review in PMAs, HDE Applications, and De Novo Requests, and Inclusion in Device Labeling.  Note that the draft guidance applies only to PMAs, de novo petitions, and humanitarian device exemption (HDE) submissions.  It does not apply to 510(k)s, consistent with the Benefit-Risk Guidance.

FDA makes clear in the draft guidance that including patient preference information in a premarket submission is voluntary, but can be useful in the following ways: 

1) to help identify the most important benefits and risks of a technology from a patient’s perspective; 2) to assess the relative importance to patients of different attributes of benefit and risk, and clarify how patients think about the tradeoffs of these benefits and risks for a given technology; and 3) to help understand the heterogeneity or distribution of patient preferences regarding benefits and risks of various treatment or diagnostic options.

FDA defines “patient preference information” as “qualitative or quantitative assessments of the relative desirability or acceptability of attributes that differ among alternative diagnostic or therapeutic strategies.”  One of the key ways in which this information may assist FDA during the review process is to help reviewers understand circumstances in which certain patient populations may be willing to accept a greater risk for a smaller benefit, for example, if there are no other treatment options available or a sub-group of patients may be more likely to benefit from a device even if the data do not support approval for use in the population as a whole.

The guidance discusses methods to elicit patient preferences.  While acknowledging that qualitative data may be sufficient at times, the guidance emphasizes the importance of quantitative data “to ensure that different outcomes are properly weighed in the same scale and therefore can be compared.”  It also states that while submission of patient preference information is voluntary, it may be particularly helpful where decisions about device usage are “preference-sensitive.”  This may occur, for example, when a patient may have multiple treatment options and none is clearly superior for all preferences, when the evidence supporting one option over others is uncertain or variable, or when patients’ views about the benefits and risks of a device vary considerably within a population.

In order to accept patient preference information provided in a premarket submission, the information must constitute “valid scientific evidence.”  FDA will make this determination based on the following study qualities:

• Representativeness of the sample and generalizability of results;
• Capturing heterogeneity of patients’ preferences;
• Established good research practices by recognized professional organizations;
• Patient centeredness;
• Effective communication of benefit, harm, uncertainty, and risk;
• Minimal cognitive bias;
• Logical soundness;
• Relevance;
• Robustness of analysis of results;
• Study conduct; and
• Comprehension by study participants.

Like other studies conducted to support a PMA, patient preference studies should be described in the device’s labeling upon approval.  The labeling should contain information to help patients understand:

• If they might benefit from use of the device;
• The potential benefits from use of the device;
• The potential risks or complications from use of the device, and the likelihoods of each;
• Any relevant contraindications, warnings, and precautions;
• If they share characteristics with the group of patients who view the benefits as outweighing the risks; and
• Any additional information about what is known and not known about patient outcomes (e.g., long-term outcomes, rare complications).

The information in the draft guidance has the potential to be helpful to sponsors of PMAs, de novo petitions, and HDEs, particularly for sponsors of new or novel devices.  While collecting patient preference data of a quality and quantity described in the guidance will pose an additional burden and expense on the sponsor, it may also allow for the possibility of device approval when such approval was previously unlikely.