By Riëtte van Laack –

As we previously reported, the U.S. Court of Appeals for the D.C. Circuit issued a decision in what some have identified as a landmark advertising case of the Federal Trade Commission (FTC) against POM Wonderful et al. (POM).  On April 6, 2015, POM requested a rehearing from the entire D.C. Circuit to address, what POM claims is, “the exceptionally important question whether the [DC Circuit] must defer to an agency [in this case the FTC] finding that speech is not protected by the First Amendment.”

In its January 2015 decision, a three-judge panel of the D.C. Circuit held that POM’s advertising made false claims that POM products could treat, prevent, or reduce the risk of heart disease, prostate cancer, and erectile dysfunction.  The panel gave deference to the FTC’s determination that 36 ads were false and misleading even though the Administrative Law Judge had previously determined that only 19 ads made improper claims.  In its Petition for Rehearing En Banc, POM argues that the panel should not have given deference to FTC’s determination regarding the additional 17 ads.  It claims that many of these 17 ads contained qualified language signaling that the research findings mentioned in the ads were not conclusive.  According to POM, the panel’s deference was inappropriate because all the FTC did was apply its own judgment as to how “reasonable” people would interpret the ads.

Which ads are false or misleading is relevant for POM because it determines the scope of the FTC’s injunction.  If the 17 additional ads are not false or misleading, POM has a right to publish them.  POM maintains that these ads convey important information to consumers.

POM further argues that the Court should grant the rehearing because 1). food advertising cases frequently settle and the Court is unlikely to get another chance to consider the present issues, 2). “the chilling effect of definitively endorsing the weak standard of review in this case will be immense,” and 3). a case like the present one with a large number of claims at issue is unlikely to arise again soon.

In the alternative, POM requests that the panel reconsider its opinion and remove two specific paragraphs.  Although this edit will not affect the results for POM, it claims that it is important to remove these paragraphs because they “might be mischaracterized by future litigants to vastly expand the conduct that actually underlies POM’s . . . liability.”

The FTC’s response to the Petition is due May 4, 2015.

By James E. Valentine* & Josephine M. Torrente –

During FDA’s April 1, 2015 public workshop on clinical outcome assessments (COAs), in a presentation on the future of COA development and utilization in drug development programs, officials from CDER’s Study Endpoints and Labeling Development (SEALD) staff announced the development of a compendium of COA tools.  A clinical outcome assessment (COA) measures patients’ symptoms, overall mental state, or the effects of a disease or condition on how the patients function.  There are four types of COA measures:

• Patient-reported outcome (PRO) measures
• Clinician-reported outcome (ClinRO) measures
• Observer-reported outcome (ObsRO) measures
• Performance outcome (PerfO) measures

The Compendium’s Two Stages of Development

The COA compendium will be developed in two stages.  In Stage 1, or the pilot stage, the compendium will consist of (1) qualified tools, (2) ongoing qualification programs, and (3) previously labeled COAs (from new molecular entity labeling approved 2003 and later).  The compendium would be published a table that can be accessed through the FDA website, organized by therapeutic area and disease/condition.

The measurement tools that will be in the Stage 1 compendium consist of those that have arisen under FDA’s two current pathways for review and use of COAs in drug development.  The first is the traditional way, which is within an individual drug development program under an IND.  These tools, when found acceptable in the course of drug development, can result in labeling claims.  The second pathway for use of COAs is through a relatively new process, the Drug Development Tool (DDT) qualification program, which is a formal way to qualify instruments outside of an individual drug development program.  These “qualified” COAs are published in the Federal Register and are available publically for use in drug development programs.  To date, there is only one qualified clinical outcome assessment, a PRO that is published here. 

Stage 2 would expand the compendium, but exactly what information would be included has not been determined.  Future expansion may include an expanded scope (e.g., COAs from efficacy supplements), as well as identify gaps in available measurements tools (e.g., concepts highlighted as important in Patient-Focused Drug Development meetings but for which no tool exists). 

Goals of the Compendium & Next Steps

Because it is unrealistic to qualify all COAs, CDER hopes creating a public list of COAs used to support labeling claims would be useful to increase their development and use in drug development programs.  The compendium would essentially serve as a list of “potentially acceptable endpoints” that could support labeling claims, as well as encourage development COAs more generally.  However, the compendium would not include detail on endpoints so that sponsors will still need to discuss with FDA the selection and design of endpoints in clinical trials.

CDER announced it plans to publish a Federal Register Notice in September 2015 in order to gather comments on the proposed compendium (and associated guidance to describe the compendium), with the roll-out of Stage 1 of the compendium following the notice-and-comment period. 

Note: This public workshop on COAs was held to satisfy FDA’s Advancing Development of Patient-Reported Outcomes (PROs) and Other Endpoint Assessment Tools commitment in PDUFA V which, in part, committed FDA to “hold a public meeting to discuss FDA’s qualification standards for drug development tools, new measurement theory, and implications for multi-national trials.”

*Admitted only in Maryland. Work supervised by the Firm while D.C. application pending.

By Riëtte van Laack –

On April 9, 2015, US Right to Know (USRTK, Petitioner) filed a Citizen Petition (CP) with FDA and sent a letter to the Federal Trade Commission (FTC) requesting action against what USRTK claims is false and misleading use of the term “diet” on beverages that contain non-nutritional artificial sweeteners (NNAS).  

Petitioner takes issue with the labeling of sodas sweetened with NNAS as “diet.”  Although the FDC Act section 403(r)(2)(D) and FDA’s regulations allow such labeling, the use of the term diet is only permitted if the labeling is not false and misleading.

Citing certain dictionaries, Petitioner asserts that the term “diet” in the brand name of Diet Coke and Diet Pepsi constitutes a deceptive (and possibly fraudulent) claim that drinking these soft drinks will promote weight loss.  Without data to support its allegation, USRTK claims that reasonable consumers buy diet sodas, labeled as diet, not because they do contain zero calories or no sugar, but because they believe that the mere consumption of these products, without energy restriction, exercise, or other actions, will result in weight loss or reduced weight gain.

Yet, according to USRTK, these diet sodas do not contribute to weight loss.  USRTK claims that certain scientific reviews and epidemiological studies suggest (USRTK does not claim certainty) that consumption of sodas containing NNAS is linked to weight gain.  It claims that evidence to the contrary should not be trusted because the underlying studies were funded by industry.  USRTK alleges that Coco-Cola Co. and PepsiCo Inc. are aware of these studies but continue to (fraudulently) use the term diet.

Petitioners request that FDA issue warning letters or take other enforcement action against Coca-Cola Company and Pepsi Co. because their diet sodas products are misbranded even though they fully comply with the regulation, 21 C.F.R. § 105.66.  Petitioners also request that FDA conduct a “sweeping” investigation of products containing NNAS to determine whether those products are misbranded because they use the term “diet.”

As mentioned above, USRTK also sent a letter to FTC requesting that FTC investigate and prohibit the apparently deceptive use of the term “diet” by Coke and Pepsi and conduct the sweeping investigation mentioned in the CP to FDA. 

By David B. Clissold –

In September 2011, the Center for Tobacco Products (“CTP”) issued a draft guidance entitled “Demonstrating the Substantial Equivalence of a New Tobacco Product: Responses to Frequently Asked Questions” (“Draft Guidance”).  In the Draft Guidance, the Food and Drug Administration (“FDA”) claimed that the Tobacco Control Act (“TCA”) requires manufacturers to submit information for FDA to review before changing the label of a tobacco product.  On March 4, 2015, FDA issued the guidance in final form (“Final Guidance”).  Among other things, the Final Guidance states that labeling changes that make a product “distinct” from the predecessor version of the product should be submitted to FDA in a “Same Characteristics SE Report.”  Although changes in product quantity were not discussed in the Draft Guidance, the Final Guidance also states that changes in the quantity of tobacco product in a package (e.g., from 20 to 24 cigarettes per pack) should be submitted in a “Product Quantity Change SE Report.”  The Final Guidance described these reports as “alternatives” to submitting a full substantial equivalence (“SE”) report or a premarket application under section 910(b) of the Federal Food, Drug, and Cosmetic Act for these types of changes.  The Final Guidance describes the contents of the “Same Characteristics SE Report” and the “Product Quantity Change SE Report.”  Among other requirements, each report must contain a certification statement, signed by a responsible official who is authorized to act on behalf of the company, using proscribed language.  For example, a “Same Characteristics SE Report” must include the following certification:

I, [insert name of responsible official], on behalf of [insert name of company], certify that [insert new tobacco product name] has a different [identify distinction] from [insert name of predicate tobacco product] but is otherwise identical to [insert name of predicate tobacco product]. I certify that [insert name of company] understands this means there is no modification, except for [identify distinction] from the predicate tobacco product, including any change in materials, ingredients, design features, heating source, or any other features. I certify that this information and the accompanying submission are true and correct, and that I am authorized to submit this on the company’s behalf. I understand that under section 1001 of title 18 of the United States Code, anyone who makes a materially false, fictitious, or fraudulent statement to the Government of the United States is subject to criminal penalties.

In a complaint filed on April 14, 2015 in the United States District Court for the District of Columbia, plaintiffs Philip Morris USA Inc., U.S. Smokeless Tobacco Company LLC, R.J. Reynolds Tobacco Company, American Snuff Company, LLC, Santa Fe Natural Tobacco Company, Inc., and Lorillard Tobacco Company argue that the Final Guidance was unlawful and ask the court to set it aside.  The tobacco company plaintiffs challenge the guidance on three principal grounds: The Administrative Procedure Act, and the First and Fifth Amendments to the U.S. Constitution.

• The Administrative Procedure Act:  The complaint alleges that the Final Guidance is arbitrary, capricious, and contrary to the TCA, and also exceeds FDA’s authority under the TCA because it conflicts with the TCA’s structure and text and with FDA’s prior interpretations of the TCA.  In addition, it does not adequately inform manufacturers which label changes may render a product “distinct,” and therefore subject to FDA pre-approval.  The complaint also alleges that the Final Guidance sets forth final agency positions, imposes legal obligations, establishes consequences for non-compliance, and effects changes in existing law, and is thus a substantive rule for which FDA is required to conduct notice-and-comment rulemaking.  Plaintiffs also state that the Final Guidance interprets statutory or regulatory requirements and represents a change in FDA’s interpretation of the TCA, and therefore FDA was required to provide an opportunity for public comment.
• First Amendment to the U.S. Constitution:  The complaint alleges that the Final Guidance prohibits manufacturers from changing the label of a tobacco product without first obtaining FDA’s pre-authorization, thus violating plaintiffs’ First Amendment right to communicate with consumers through product labels.
• First and Fifth Amendments to the U.S. Constitution:  Plaintiffs argue that the Final Guidance does not give manufacturers fair notice of the label changes that may result in a “distinct” product subject to FDA pre-approval or articulate clear standards that prevent arbitrary enforcement by FDA.  This uncertainty chills plaintiffs’ exercise of their First Amendment right to communicate with consumers through product labels because, if FDA concludes that a change rendered the product “distinct” and a Same Characteristics SE Report was not filed, the manufacturers will be subject to significant civil and criminal penalties.

Challenges to certain elements of the TCA on First Amendment grounds have been successful in the past.  For example, the D.C. Circuit struck down FDA regulations requiring graphic warnings on cigarette packaging on First Amendment grounds (see our analysis of that case here).  But what caught our eye in the latest complaint was the allegation that FDA is attempting to regulate industry through guidance instead of notice-and-comment rulemaking (we have previously commented on that issue here and here).  That allegation reminded us about a letter sent to FDA by Senator Lamar Alexander (R-TN), the ranking member of the Senate HELP Committee, along with Senators Richard Burr (R-NC), Johnny Isakson (R-GA), and Orrin Hatch (R-UT) “to express significant concern about [FDA’s] use of draft guidances to make substantive policy changes” (see our post on that letter here).  Last month, FDA responded to that letter with a letter of its own.  While the focus of the inquiry was on the use of draft guidances to implement FDA policy, FDA also explained how it uses guidance documents more generally:

Guidance documents generally do not create legally enforceable rights or responsibilities and do not legally bind the public or FDA—importantly, they do represent the Agency’s current thinking.  Therefore, FDA employees may depart from guidance documents only with appropriate justification and supervisory concurrence.  Because guidance is not binding, affected parties may choose to use an approach other than the one set forth in a guidance document . . . [but any] alternative approach must comply with the relevant statutes and regulations.  FDA is willing to discuss an alternative approach with affected parties to ensure it complies with the relevant statutes and regulations.

But if a guidance compels a submission to FDA, to be accompanied by a certificate made under penalty of perjury, and FDA believes that submission is required under its interpretation of the statute, doesn’t that “legally bind” the public to follow the guidance?  What “alternative approach,” following any amount of discussion with FDA would satisfy that perceived requirement?  We hope the court will address these issues during the course of this litigation.

By Allyson B. Mullen & Jeff N. Gibbs –

As we have previously blogged on numerous times (for example, here and here), FDA has released a framework for regulation of laboratory developed tests (LDTs).  FDA’s proposed framework has sparked much controversy, receiving support from diagnostic test manufacturers and some patient groups, while other patient groups and the laboratory community have strongly opposed the draft framework.  Numerous comments on the proposed framework were submitted to FDA earlier this year. 

Recently, a different approach to LDT regulation has been floated.  The Diagnostic Test Working Group (DTWG), an independent group consisting of representatives from diagnostic manufacturers and clinical laboratories, released an alternative to FDA’s LDT Framework. 
 
The DTWG proposal offers a compromise for those on both sides of the LDT debate.  For laboratories, it would mean greater regulation of LDTs while not trying to fit LDTs into the traditional medical device regulatory framework, and for IVD manufacturers, it would result in significant changes to the current regulatory model.  A few key points of interest in the DTWG proposal:

• The proposal would apply to all in vitro diagnostic tests – both kits and LDTs, and components of the same (collectively IVDs) and calls for establishment of a new center within FDA.
• The proposal allocates responsibility for oversight of IVDs across FDA, CMS and the individual states.  FDA would be responsible for IVD development, CMS would be responsible for laboratory operations, and the states would be responsible for medical applications (e.g., test result interpretation and consultation).  This allocation is designed to address the concern about overlapping regulation.
• IVDs will be classified as high risk, moderate risk and low risk, and the proposal sets out criteria for classification into each category.  Developers of a new IVD will propose a classification to FDA, and FDA will have 60 days to object. 
• • IVDs can move from high risk to low risk when the test and/or analyte become well characterized. 
• • The proposal sets a new standard for IVDs: the developer must “establish a reasonable assurance of analytical validity and clinical validity for the intended use.”  Reasonable assurance would be established through competent and reliable evidence, which includes a number of different types of information such as published literature and clinical guidelines.  There would be a presumption that clinical trials would not be required to demonstrate clinical validity. 
• The premarket requirements for each of the three classifications are different.  High and moderate risk IVDs require premarket submissions and low risk IVDs merely require notification to FDA.
• New submissions would be required for test modifications to high and moderate risk IVDs, if the modification has a “meaningful clinical impact” or changes the intended use of the IVD.  A submission would be required for a low risk IVD, if the modification changes the intended use, purpose of the assay or the target disease or condition. 
• The proposal includes special pathways for IVDs for rare diseases, emergency use IVDs, and IVDs for unmet needs. 
• Post-market quality system and recall reporting will be generally the same as FDA’s current medical device requirements.  Adverse event reporting would be clarified to better fit IVDs.
• There is a proposed three or four year transition period for LDTs currently on the market and those that would enter the market after the proposal goes into effect. 
• Instrument platforms will be automatically classified as low risk.  Platform manufacturers would also be granted a safe harbor for discussion of off-label uses.
• Paralleling a relatively new program for pharmaceuticals, the proposal also includes priority vouchers for innovative IVDs.

In our view, this proposal is an intriguing start towards a potential LDT compromise. There are certainly many areas of clarification and development that are still required and many key details will still need to be worked out.  We expect that many laboratories will prefer the DTWG’s proposal as it would mean less onerous regulation compared to FDA’s proposed LDT framework.  Manufacturers may also find the change to IVD regulation to be attractive.  This proposal could form the basis of legislation that may be released in the near future.  We will keep readers apprised of any legislative developments. 

By Allyson B. Mullen –

On April 13, CDRH released the final guidance document for “Expedited Access for Premarket Approval and De Novo Medical Devices Intended for Unmet Medical Need for Life Threatening or Irreversibly Debilitating Diseases or Conditions.”  We previously blogged on the draft guidance here.  The goal of the program is to facilitate access to novel devices through more interactive communications between FDA and manufacturers during the development process and more interactive reviews of premarket applications (e.g., IDEs, PMAs and de novo requests) and by focusing on post-market data. 

This final guidance was issued merely a year after issuance of the draft, which is a short period of time for FDA.  This swift release of the final guidance is presumably due in part to the modest changes that were made to the guidance from the draft and lack of controversy.  These minor changes include:

• The scope of the program was expanded from PMA devices only to PMA devices and de novo devices.  510(k)s, however, continue to be excluded. 
• The guidance was generally revised to include an increased focus on patient benefit.
• The final guidance clarified that interactive review, senior management involvement, and case manager assignment will be provided in the program to the extent resources are available.  It is still unclear, however, how availability will be determined and if any resources will be specifically allocated for this program.   
• The expedited access program (EAP) designation process was clarified, including, in Appendix 1 where it indicates that CDRH plans to review a Pre-Submission requesting EAP designation within 30 days of receipt.  The guidance also clarifies that granting of EAP designation does not mean that CDRH agrees with the applicant’s draft Data Development Plan or that any proposed study design will support a subsequent marketing application. 
• Additional examples have been added to facilitate better understanding of cases in which the EAP may be the appropriate pathway to device approval or de novo clearance.
• The final guidance indicates that it may be possible for applicants to use registry data to satisfy post-approval study requirements. 

Finally, the guidance includes a new Program Evaluation through which CDRH will publish statistics regarding the program, including the number of designation requests received and granted, and corresponding pre-market submissions approved or cleared following designation.  This evaluation will begin one year after issuance of the guidance and will continue for three years thereafter, after which CDRH will consider whether changes to the program are necessary. 

This evaluation may be an important addition to the guidance because CDRH has attempted other priority review programs in the past, including the 510(k) Priority Review Program, and these programs have generally been unsuccessful.  In fact, since 1995, only 23 510(k)s have been designated for priority review, and between 2008 and 2012, a mere five 510(k)s were designated for expedited review.  These five 510(k)s had an only marginally better review time than the average time for all other 510(k)s during that same time period.  Perhaps CDRH’s commitment to track performance data will help spur better results than similar prior programs. 

By Riëtte van Laack –

In an effort to stop the implementation of the National Organic Program’s (NOP’s) interpretation of the sunset review process, a coalition of organic “stakeholders” have filed a lawsuit in the U.S. District Court for Northern California.  The lawsuit alleges that the NOP violated the federal rulemaking process when it changed procedures for the sunset review of substances included in the National List of Allowed and Prohibited Substances (National List).  Plaintiffs allege that the “unilateral” action by the NOP to adopt a major policy change without a public process violates a foundational principle and practice of the Organic Food Production Act (OFPA), namely public participation in organic policy-making.  Plaintiffs request that the court require the NOP to reconsider its decision on the alleged rule change and reinstitute the “customary public hearing and comment process.”

The OFPA creates standards for organic certification and establishes the National Organic Standards Board (NOSB).  A major function of the NOSB is to oversee the allowance of synthetic and non-agricultural materials based on a determination that they do not harm human health and the environment and are necessary in organic food production and processing.  The National List identifies the synthetic substances that are allowed (exemptions) and the nonsynthetic (natural) substances that are not allowed (prohibitions) in organic production.  7 C.F.R. §§  205.601–604.  In addition, the National List identifies the nonorganic and nonagricultural substances that may be used in organic handling.  Id. §§ 205.605–205.606.

At issue in the lawsuit is the interpretation of the so-called sunset provision of the OFPA.  Under the OFPA, a review of substances on the National List takes place on a five-year cycle.  This “sunset” provision provides that “No exemption or prohibition contained in the National List shall be valid unless the National Organic Standards Board has reviewed such exemption or prohibition as provided in this section within 5 years of such exemption or prohibition being adopted or reviewed and the Secretary has renewed such exemption or prohibition.” 7 U.S.C. § 6517(e).  Plaintiffs allege that, until September 2013, this provision had been interpreted to require that all substances included in the National List cycle off the list after five years unless the NOSB votes by a two-thirds majority to relist them and NOP accepts the recommendation. 

In September, 2013, NOP issued a notice that announced what plaintiffs characterize as a substantive change in the process NOP had been operating under since the inception of the organic program.  In its notice, NOP asserted that the previously used sunset review process did not allow for “robust” public participation and delayed the sunset review process.  Essentially, the pre-Sept. 2013 sunset review process treated sunset substances as newly petitioned substances and the sunset rulemaking process from start to finish took as long as 30 months.  However, adding a substance to the National List involves a rigorous rulemaking process.  Once a substance is on the list, organic farmers and processors invest significant time and money to update their organic system plans and adjust their product formulations to reflect the change.  NOP concluded that, in light of this rigorous process, and given the importance of the National List to organic farmers and processors, the process to remove a sunsetting substance from the National List should be an equally rigorous process.

Plaintiffs argue that the NOP 2013 notice represents a substantive rule under the Administrative Procedures Act (APA) and that NOP violated the APA rulemaking process when it changed procedures for reviewing the NOP’s sunset review process without using the notice and comment rulemaking procedures mandated by the APA and by the standards of the OFPA.

Because there are a significant number of substances subject to sunset in the next few years, the outcome of this lawsuit will be relevant for many organic farmers and processors.

By Jay W. Cormier – 

It has been quite some time since the September 2010 Veterinary Medicine Advisory Committee (“VMAC”) meeting that discussed FDA’s review of AquaBounty’s AquAdvantage Salmon application.  Earlier this month, Food and Water Watch – a long-time and very vocal opponent to the AquAdvantage Salmon – filed a Citizen Petition (“CP”) and a Food Additive Petition (“FAP”) in an effort to block marketing of AquAdvantage Salmon filets, should an approval ever occur (available here). 

In the interest of full disclosure, your author, while working for FDA, helped develop FDA’s approach to the review and approval of genetically engineered animals, was one of the lead reviewers at FDA’s Center for Veterinary Medicine (“CVM”) for the AquAdvantage Salmon, and presented at the 2010 VMAC meeting on behalf of FDA. 

By way of background, as it has been such a long time since the FDA Law Blog last discussed the AquAdvantage Salmon (here and here), the salmon is a genetically engineered Atlantic salmon that has had a single copy of a transgene inserted into its DNA.  Atlantic salmon typically take around 4 years of farming (Atlantic salmon are protected as an endangered species, so fishing and sale of wild Atlantic salmon is illegal) to reach market size.  During that time, the salmon only grow during specific times of the year, yet they require adequate food, clean water, and space to swim throughout the entire year.  The AquAdvantage Salmon, however, are engineered to grow all year; they do not grow any larger than their non-engineered counterparts – they just reach their size sooner.

Importantly, AquAdvantage Salmon are also produced such that, with the exception of a small breeding group of fish, they are rendered sterile.  This is done by breeding the salmon so that their genomes contain three copies of each chromosome instead of the usual two copies.

The shorter time to market size means that it would be economically feasible to grow salmon contained in inland tanks rather than in net pens in the open ocean.  As a result, water quality can be better managed and the salmon can be isolated from other species.  Thus, any number of issues that arise from high density ocean farming operations can be avoided.

AquaBounty first submitted data to FDA in the mid-1990s regarding its AquAdvantage Salmon.  It took FDA roughly 15 years, but in 2010, CVM convened its VMAC for a two-day meeting to discuss the scientific review of the data supporting approval of the AquAdvantage Salmon.  The review team from CVM presented the conclusions of its review to the VMAC – the AquAdvantage Salmon was as safe to eat as non-engineered salmon, the transgene and its expression product was safe to the salmon and was effective, and the engineered salmon did not pose a significant risk to the human environment. 

Over four-and-a-half years have passed since the VMAC meeting.  During that time, the AquAvantage Salmon application has languished.  CVM formally issued its draft Environmental Assessment and its draft Finding of No Significant Impact for public comment in 2012.  To date, FDA has not finalized these documents, and has not approved the AquAdvantage Salmon application.  Meanwhile, there have been several failed attempts in Congress to ban AquAdvantage Salmon or to deprive FDA of its ability to approve the application.

In a new twist to this saga, on April 2nd, Food and Water Watch took the very unusual step of filing both a Citizen Petition and a Food Additive Petition for the same issue.  Specifically, Food and Water Watch seek to have the AquAdvantage Salmon listed as a substance which is prohibited from use in human food.  Under Food and Water Watch’s petitions, FDA would promulgate a regulation that would specifically and explicitly deem AquAdvantage Salmon adulterated food as a matter of law, irrespective of whether the food from AquAdvantage Salmon poses any risk at all to consumers.  Seemingly unsure of how to go about making such a request of FDA, Food and Water Watch filed both petitions, each asking FDA to consider the other in the event that one of the petitions is not the proper avenue for making the unusual request. 

The Food and Water Watch petitions ask FDA to find that consuming the engineered salmon is injurious to health and should therefore be prohibited as a food additive.  The petitioners argue that, notwithstanding the fact that the statutory definition of a food additive excludes new animal drugs, FDA has the flexibility to consider AquAdvantage Salmon as both a new animal drug and a food additive.  The petitions take issue with FDA’s review process and the data used to support the approval of the AquAdvantage Salmon.  They further argue that the salmon must be reviewed as a food additive. 

Whether FDA will agree with these arguments will not be known for some time, but we will continue to watch for any further developments as FDA continues to consider approving AquAdavantage Salmon.

By Riëtte van Laack –

On April 9, 2015, FDA published a proposal to amend the regulations regarding registration of food facilities.  The proposal addresses a multitude of issues: codification of certain self-implementing provisions of the Food Safety Modernization Act 0f 2011 (FSMA), amendment of the regulations as directed by FSMA (e.g., to amend the definition of retail establishment), and update and improvement of the food facility registration system. 

The Bioterrorism Act of 2002 amended the Federal food, Drug, and Cosmetic Act (FDC Act), adding section 415, which directs FDA to issue regulations to require registration of facilities engaged in the manufacturing, processing, packing or holding food for consumption in the United States.  FDA issued implementing regulations in 2003. FSMA amended section 415 to require that facilities submit additional registration information to FDA and renew their registration every two years. 

Under the current regulation, food facilities that manufacture/process, pack, or hold food for consumption in the United States must register with FDA.  However, retail food establishments, farms, restaurants, and certain other entities are exempt from the requirement to register.  FDA proposes to amend the definition of a retail food establishment to increase the number of establishments that are considered retail food establishments (and therefore are not required to register).

Currently, the regulation defines a retail food establishment as “an establishment that sells food products directly to consumers as its primary function.”  Whether the primary function is selling food directly to consumers depends on whether the annual monetary value of sale of food products directly to consumers exceeds the annual monetary value of sales of food products to all other buyers.  FDA proposes to amend the regulation so that the sale of food directly to consumers from an on-farm establishment will include direct sales by the establishment at direct sales platforms such as roadside stands, farmers’ markets, Community Supported Agriculture (CSA) programs, and other direct-to-consumer sales platforms, including door-to-door sales; mail, catalog and Internet order, including online farmers markets and online grocery delivery; religious or other organization bazaars; and State and local fairs.  This expansion of sales direct to consumers applies only to on-farm establishments.

FDA further proposes to codify certain self-implementing provisions of FSMA that have been effective upon enactment of FSMA (i.e., provide e-mail address for the contact person or U.S. agent, bi-annual renewal of registration and assurance that FDA will be permitted to inspect the facility at the times and in the matter permitted by the FDC Act).  In addition, FDA proposes to add certain new requirements that the Agency anticipates will improve the food facility registration system.

• All food facility registrations will be required to be submitted to FDA electronically.  FSMA authorizes FDA to require electronic registration no earlier than 5 years after enactment of the law, i.e., not before Jan. 4, 2016.  Among other things, electronic registration will reduce time and cost of processing forms, reduce registration errors, and reduce search and retrieval time. This provision will include a waiver for establishments that cannot register electronically.  
• Registrations will be required to identify the type of activity conducted at the facility for each food product category.
• FDA proposes various measures to assure that the food facility registration database is up to date by verifying accuracy of certain information submitted in registrations and reducing the time for updates and cancellation of registration from 60 to 30 days. For example, to prevent any uncertainty whether a US agent is authorized to register a foreign facility, FDA will not register the facility until it has been able to verify that the U.S. agent is indeed authorized.

The proposed rule does not address the suspension of food facility registration provisions of FSMA.  FDA intends to address these provisions in a separate rulemaking.

Public comments on FDA’s proposed rule may be submitted electronically or by regular mail until June 8, 2015.

By Kurt R. Karst –      

Some days we feel like the “Dickie V” (Dick Vitale) of the Hatch-Waxman and Biosimilars worlds – enthusiastically calling play-by-play on litigation and other FDA happenings, just like the Basketball Hall of Fame broadcaster does for college basketball games.  (And while we’re on that topic, this blogger can’t help but express his disappointment in Wisconsin’s loss to Duke in the championship game – Go Badgers!)  But even Dickie V needs a break from the detailed play-by-play once in a while.  And today is our break.  Instead of putting out one of our typically detailed posts, we’re just going to give our readers brief updates on a couple of cases we’ve been following and that we’ve previously detailed.  After all, like Dickie V, who is now 75 years old, we too at the FDA Law Blog are getting old, having just celebrated our 8th anniversary.

First off is Otsuka Pharmaceutical Co., Ltd.’s (“Otsuka”) two-count Complaint and Motion for Summary Judgment filed against FDA in the U.S. District Court for the District of Maryland concerning ABILIFY (aripiprazole).  As we previously reported, Otsuka alleges in Count I that FDA impermissibly broadened a recent supplemental approval for ABILIFY to include treatment of all patients with Tourette’s disorder, instead of treatment of pediatric patients with Tourette’s Disorder.  In Count II, Otsuka alleges that FDA is precluded from approving generic versions of ABILIFY on April 20, 2015 (when a period of pediatric exclusivity associated with U.S. Patent No. 5,006,528 expires) based on FDC Act § 505A(o) (concerning the inclusions and omission of protected pediatric information in generic drug labeling) and the fact that the labeling of ABILIFY is “loaded with pediatric information.” 

In a Motion to Dismiss filed earlier this week, FDA argues that Otsuka’s case is unripe, that the company lacks standing, and that there hasn’t been any final agency action to challenge in the first place.  According to FDA:

FDA has made no determination with respect to the issues raised in Otsuka’s January 21, 2015 letter and, to the extent it ultimately finds it necessary to decide these issues, would only do so if, and when, it approves any generic versions of Abilify.  In order to make any generic Abilify approval decisions, however, the agency may also need to consider other potentially important parts of the regulatory scheme, which Otsuka’s letter does not take into account.  These may include the scope of the permissible difference to the same labeling requirement in the statute (see 21 U.S.C. § 355(j)(2)(A)(v)), regulations (see 21 C.F.R. § 314.94(a)(8)(iv)), and applicable case law, as well as the effect of 21 U.S.C. § 355A(o) on labeling that is protected by both Hatch-Waxman and orphan exclusivity.  FDA may also deem it important to consider arguments potentially raised by generic drug sponsors.

In addition, even when FDA has tentatively approved an ANDA,any number of events may nevertheless prevent or delay final approval (e.g., a pre-approval inspection that reveals manufacturing deficiencies or a change in standards governing impurity are just two examples).  FDA will consider all relevant factors, in making any future decisions on these matters.  However, FDA will make these final determinations at the time that it approves any generic versions of Abilify (and not before).

FDA also makes some hay out of a recent Otsuka Motion to Compel Supplementation of the Administrative Record, saying that the company is attempting to change the action challenged in Count I.  (Later in the day on April 8th, the District Court issued a Memorandum Opinion granting Otsuka's motion.)

Intervenor-Defendants Apotex Inc. and Apotex Corporation, and Teva Pharmaceuticals USA, Inc. take a tack similar to FDA in their combined Motion to Dismiss, but they also address the substantive legal issues raised by Otsuka:

[T]he ultimate question Otsuka’s motion poses is whether FDA has authority to approve ANDAs that carve out the orphan indication for Tourette’s disorder (whether or not the indication includes any reference to a pediatric population).  FDA’s authority to do so is clear. Otsuka’s motion rests on a myopic view of FDA’s authority to approve ANDAs that carve out portions of brand-name drug labeling—a view that is belied by the FDCA as a whole, the Orphan Drug Act, agency regulations entitled to deference, and clear Fourth Circuit authority.  Otsuka’s claims must fail because FDA has authority to approve ANDAs carving out a Tourette’s disorder indication, and that authority is not abrogated or constrained by Section 505A(o).

Other Intervenors-Defendants, Alembic Pharmaceuticals Limited, Alembic Limited, Alembic Global Holdings SA and Alembic Pharmaceuticals, Inc., filed a brief Memorandum opposing Otsuka’s Motion for Summary Judgment.

Second up today is an update on Amgen Inc.’s (“Amgen”) appeal to the U.S. Court of Appeals for the Federal Circuit (Case No. 2015-1499) of a March 2015 decision from the U.S. District Court for the Northern District of California concerning Sandoz Inc.’s  (“Sandoz”) biosimilar version of Amgen’s NEUPOGEN (filgrastim) and the applicability and interpretation of various provisions of the the Biologics Price Competition and Innovation Act of 2009 (“BPCIA”).  As we previously reported, the District Court denied Amgen’s Motion for a Preliminary Injunction (as well as an earlier filed Motion for Judgment on the Pleadings or, in the Alternative, Motion for Partial Summary Judgment) and ruled, among other things, that the BPCIA’s “patent dance” procedures are not mandatory for Section 351(k) biosimilar applicants, and that the statutory 180-day notice of first commercial marketing can come well before biosimilar licensure. 

Amgen asked the Federal Circuit for and was granted an expedited briefing schedule, with briefing to be completed by the end of April 2015.  Amgen lays out the company’s arguments in its Opening Brief filed last week, and asks the Federal Circuit to address four issues:

1. Whether the district court erred in holding that, under the [BPCIA], Sandoz . . .may elect not to comply with the requirement that it “shall provide” to Amgen, the reference product sponsor (or, “RPS”), a copy of its biologics license application (“BLA”) and information describing “the process or processes used to manufacture the biological product that is the subject of such application.” 42 U.S.C. § 262(l)(2)(A).

2. Whether the district court erred in holding that Sandoz may comply with the requirement that the Applicant “shall provide notice to the reference product sponsor not later than 180 days before the date of the first commercial marketing of the biological product licensed under subsection (k)” by giving notice before the biological product becomes “licensed.” 42 U.S.C. § 262(l)(8)(A).

3. Whether the district court erred in holding that where Sandoz refused to provide its BLA and manufacturing information and provided untimely notice of commercial marketing, Amgen cannot compel Sandoz’s compliance and its sole remedy is a declaratory judgment on patent issues under 42 U.S.C. § 262(l)(9).

4. Whether the district court erred in denying Amgen’s motion for a preliminary injunction based on an erroneous interpretation of the BPCIA and an erroneous finding of no irreparable harm.

Another case raising similar issues is brewing in the U.S. District Court for the District of Massachusetts.  In that case, Janssen Biotech, Inc. (“Janssen”) is challenging Celltrion, Inc.’s and Hospira, Inc.’s biosimilar version of Janssen’s REMICADE (infliximab).  On April 8, 2015, Janssen filed a Motion for Partial Summary Judgment and a Preliminary and Permanent Injunction. 

By Kurt R. Karst –      

It’s not all that often that we see the Patent and Trademark Office (“PTO”) dismiss or deny a request to extend the term of a patent covering a medical device, though such actions on a Patent Term Extension (“PTE”) request do come up from time to time (see our previous posts here and here).  The PTO’s recent dismissal of a PTE request for U.S. Patent No. 5,762,599 (“the ‘599 patent”) filed by Vesiflo Inc. (“Vesiflo”) and covering the company’s inFlow Intraurethral Valve-Pump and Activator (“inFlow”) device for a replaceable urinary prosthesis for use in female adults who cannot contract the muscles necessary to push urine out of the bladder presents an interesting moment of zen in the PTE world. 

The inFlow device was reviewed by FDA through the de novo classification process and is the subject of an October 14, 2014 Classification Order, which FDA announced on the same day.  The de novo process, formally known as Evaluation of Automatic Class III Designation, is established by FDC Act § 513(f)(2).  It was added to the statute by the 1997 FDA Modernization Act (“FDAMA”), as modified by the 2012 FDA Safety and Innovation Act (“FDASIA”), to address novel medical devices that lack a predicate device but pose only a low-to-moderate risk, making them ill-suited to the PMA process under FDC Act § 515 (see our previous post here).  Vesiflo utilized the de novo process after a long history of being shut out of other marketing routes for its inFlow device.  As stated by Vesiflo in its PTE application:

[T]he applicant sought FDA approval for over 17 years prior to the De Novo Petition (DEN130044) being granted on October 14, 2014.  Throughout the process, the FDA maintained its stance that the InFlow™ device required § 515 approval and was a class III device.  The initial IDE (G970029) was performed from 1997 to 2000 in accordance with § 515 for a class III device.  The applicant subsequently prepared for submission and attempted to file pre-PMAs under § 515 in 2002 and 2011, an application under § 513(g) in 2005, and an application under § 510(k) in 2006, but the FDA, based on the actions of the Urology Branch Chief Janine Morris, refused to accept of any of the applications.  It was not until 2013 that the FDA changed its stance, when it down-classified the InFlow™ to class II based on its re-examiniation of the safety data from the pivotal (IDE) trial and agreed to accept a submission under §513(g), rather than under § 515 as it had been treated for the prior seventeen years.  Ultimately, DEN 130044 was filed and approved based on the same data from G970029 that was originally submitted in 2002.

Shortly after FDA handed down the October 14, 2014 Classification Order, Vesiflo requested a PTE for the ‘599 patent.  But just a few months later, on March 4, 2015, the PTO dismissed the request, concluding that the ‘599 patent is ineligible for a PTE.

Under the PTE statute at 35 U.S.C. § 156, the owner of record of a patent (or its agent) must submit a PTE request to the PTO “within the sixty-day period beginning on the date the product received permission under the provision of law under which the applicable regulatory review period occurred for commercial marketing or use.”  For a medical device, the “regulatory review period” is defined at 35 U.S.C. § 156(g)(3)(B) to be the sum of:

(i) the period beginning on the date a clinical investigation on humans involving the device was begun and ending on the date an application was initially submitted with respect to the device under section 515, and

(ii) the period beginning on the date an application was initially submitted with respect to the device under section 515 and ending on the date such application was approved under such Act or the period beginning on the date a notice of completion of a product development protocol was initially submitted under section 515(f)(5) and ending on the date the protocol was declared completed under section 515(f)(6).

Thus, the definition of “regulatory review period” for a medical device requires that an application for a medical device be submitted under FDC Act § 515 – i.e., a PMA – and also that the PMA be approved.  And that’s where Vesiflo’s troubles began and ended.  According to the PTO’s dismissal decision:

Since no application under section 515 of the FFDCA was filed with FDA, the time period in § 156(g)(3)(B)(i) has not ended.  Turning to the § 156(g)(3)(B)(ii) period, since no application was filed under either 515 or 515(f)(5), the regulatory review specified in § 156(g)(3)(B)(ii) did not begin nor did it end.  Instead, an order under 513(f)(2) of the FFDCA for applicant’s medical device was issued October 14, 2014.  This means that the triggering event in §156(d)(1) has not occurred since the product was not reviewed under “the provision of law”—section 515 of the FFDCA —under which the applicable “regulatory review period” occurred —the regulatory review period as defined in 35 U.S.C. 156(g)(3)(B)(i) and (ii).

Vesiflo’s ineligibility for a PTE also doomed the company’s hopes for an interim PTE, requested pursuant to 35 U.S.C. § 156(e)(2), on the ‘599 patent.  Citing legislative history and the Federal Circuit’s decision in Somerset Pharmaceuticals, Inc. v. Dudas, 500 F.3d 1344 (Fed. Cir. 2007), the PTO concluded that an interim extension cannot be granted if a patent is not eligible for extension under 35 U.S.C. § 156(a).

By Alexander J. Varond –

After six years of operating under its May 2009 “Guidance for Industry: Formal Meetings Between the FDA and Sponsors of Applicants,” FDA refreshed its guidance.  On March 11, FDA announced its draft guidance entitled “Formal Meetings Between the Food and Drug Administration and Sponsors or Applicants of Prescription Drug User Fee Act (PDUFA) Products.”

Despite the amount of time that passed since the last version was issued, the draft guidance makes relatively few changes.  This is fairly impressive, given the importance of FDA meetings; but this also speaks to the relative maturity of the PDUFA program—now in its fifth incarnation.  We posted an in-depth discussion about the 2009 guidance here.

In the chart below, we provide a brief overview of each meeting type and highlight the changes made by the draft guidance document.

Table 1:  Summary of Meeting Types and an Overview of Changes

The draft guidance also clarifies the appropriate timeframe for scheduling meetings.  In the 2009 guidance FDA stated “If a sponsor or applicant requests a meeting date that is beyond [30/60/75] days from the date of the request receipt, we will work with the sponsor or applicant to determine the earliest agreeable date.”  (Emphasis added).  The last clause has been made more specific, such that the scheduling requirement is now “If a request for a meeting date that is beyond [30/60/75] days from the date of the request receipt, the meeting date should be within 14 calendar days of the requested date.”  (Emphasis added).

By Kurt R. Karst –      

Last week, the U.S. Court of Appeals for the Federal Circuit ruled in Apotex Inc. v. Daiichi Sankyo, Inc., saying that there is subject matter jurisdiction to hear a declaratory judgment action of non-infringement for a disclaimed Orange Book-listed patent.  The decision reverses a January 2014 decision from the U.S. District Court for the Northern District of Illinois. 

As we previously reported (here and here), the case stems from a November 2012 Complaint for Declaratory Judgment filed by Apotex, Inc. (“Apotex”) in an effort to obtain a court decision triggering the 75-day statutory period under the failure-to-market forfeiture provision at FDC Act § 505(j)(5)(D)(i)(I)(bb) and that could ultimately result in a forfeiture of 180-day exclusivity eligibility for purported first-filer Mylan Pharmaceuticals Inc. (“Mylan”) for its generic version of Daiichi Sankyo Inc.’s (“Daiichi”) BENICAR (olmesartan medoxomil) Tablets approved under NDA 021286.  The patent at issue – U.S. Patent No. 6,878,703 (“the ‘703 patent”) – is apparently the only remaining exclusivity-bearing patent, and, as a result of the patent being disclaimed, is listed in the Orange Book with a “Patent Delist Request Flag.”  For those in need of some good bedtime reading, the briefs filed in the Federal Circuit are available here (Daiichi); here and here (Apotex); and here and here (Mylan).

By way of a quick review, under the 180-day exclusivity failure-to-market forfeiture provisions added to the statute by the 2003 Medicare Modernization Act (“MMA”), there must be two events – or “bookends” – to calculate a “later of” event between items (aa) and (bb).  The first bookend date under item (aa) is the earlier of the date that is:

(AA) 75 days after the date on which the approval of the application of the first applicant is made effective under subparagraph (B)(iii); or

(BB) 30 months after the date of submission of the application of the first applicant

That event has already happened with respect to generic BENICAR given the April 25, 2006 date on FDA’s List of Paragraph IV Patent Certifications: the “earlier of” date under (aa) is October 25, 2008. 

The other bookend – the (bb) part of the equation – provides that the (bb) date is “the date that is 75 days after the date as of which, as to each of the patents with respect to which the first applicant submitted and lawfully maintained a [Paragraph IV] certification qualifying the first applicant for the 180-day exclusivity period,” one of three events occurs:

(AA) In an infringement action brought against that applicant with respect to the patent or in a declaratory judgment action brought by that applicant with respect to the patent, a court enters a final decision from which no appeal (other than a petition to the Supreme Court for a writ of certiorari) has been or can be taken that the patent is invalid or not infringed.

(BB) In an infringement action or a declaratory judgment action described in [FDC Act § 505(j)(5)(D)(i)(I)(bb)(AA)], a court signs a settlement order or consent decree that enters a final judgment that includes a finding that the patent is invalid or not infringed.

(CC) The patent information submitted under [FDC Act § 505(b) or (c)] is withdrawn by the holder of the application approved under subsection (b).

The (AA) and (BB) court decision events under item (bb) can be triggered in patent infringement litigation by “the first applicant or any other applicant (which other applicant has received tentative approval).”  We emphasize that last portion for a reason, which we’ll get to in due course.  But for now, let’s put a pin in it.  

Returning to the BENICAR case, the Federal Circuit nicely summarized the position of the parties:

Apotex asserted that it has a concrete stake in securing the requested declaratory judgment because, under the governing statutory provisions, the requested judgment would allow it to enter the market earlier than it could without the judgment. . . .  According to Apotex, a court judgment of non-infringement would cause Mylan to forfeit the exclusivity period if Mylan has not marketed its drug 75 days after appeal rights are exhausted (certiorari aside) and Apotex has obtained tentative approval for its generic product from the FDA. . . .

Daiichi and Mylan did not dispute that an earlier-than-otherwise Apotex entry into the market would likely have the identified effects, to Apotex’s benefit and Daiichi’s and Mylan’s detriment.  But Daiichi argued that no controversy exists because it could not now assert the disclaimed ’703 patent against Apotex.  Mylan added arguments based on the fact that Apotex lacked (and lacks) a “tentative approval” from the FDA for its ANDA.  Specifically, Mylan argued that redress of Apotex’s delayed-market-entry injury is unduly speculative before tentative approval is in hand.  Mylan also made an argument based on the fact that tentative approval is a necessary statutory condition for the forfeiture of Mylan’s presumptive exclusivity period based on the declaratory judgment requested here. § 355(j)(5)(D).  It argued that the forfeiture provision should be read to mean that, for a declaratory judgment brought by a second ANDA filer to cause forfeiture, the second ANDA filer must have had tentative FDA approval when it brought the declaratory-judgment action.  Under that interpretation, Mylan contended, the present action cannot provide Apotex forfeiture relief—even if Apotex could file an identical declaratory-judgment action as soon as it obtains tentative approval.

The Illinois District Court granted Daiichi’s Motion to Dismiss the Apotex Complaint, reasoning that “both Daiichi and Apotex no longer hold any meaningful interest in the now disclaimed patent” and that the continued listing of the ‘703 patent in the Orange Book “does not create a case or controversy by which Apotex may seek a declaratory judgment regarding a nonexistent patent.”  In addition, the Illinois District Court denied Mylan’s Motion to Intervene as moot in light of the court’s decision to grant Daiichi’s Motion to Dismiss.  Apotex subsequently appealed, and Mylan cross-appealed the District Court’s denial of intervention. 

On appeal, the Federal Circuit, after confirming Mylan’s right to be a party in the case “because of its obvious stake in the dispute,” reversed the Illinois District Court’s dismissal of Apotex’s Complaint for lack of a case or controversy.  Citing and quoting the U.S. Supreme Court’s decision in MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007), the Federal Citcuit concluded that “the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”  From there, the Federal Circuit addressed four issues:

1. whether Daiichi’s disclaimer of the patent means that the parties lack concrete stakes in the dispute over the declaratory judgment; 
2. whether the alleged harm is traceable to Daiichi; 
3. whether the real-world impact is too contingent on future events—specifically, FDA tentative approval of Apotex’s ANDA; and 
4. whether Apotex’s alleged harm would not be redressed even if Apotex receives the requested judgment because ultimate relief is independently blocked by the statutory standards for triggering forfeiture of Mylan’s exclusivity period.

Our friends over at the Patent Docs blog nicely summarized each point identified by the Federal Circuit leading to the Court’s holding – that “Apotex has alleged facts supporting the conclusion ‘that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to
warrant the issuance of a declaratory judgment’” – so we refer you to that blog post for that discussion.  That means we get to spend the rest of our time on other aspects of the Federal Circuit’s decision that we find interesting.  And you’ll hardly be suprised that by “other aspects” we mean 180-day exclusivity.  (Now you can take out the pin noted above.)

In its decision, the Federal Circuit performs its own mini-forfeiture analysis, identifying October 2008 as the month when the (aa) bookend date occurs under the failure-to-market provisions at FDC Act § 505(j)(5)(D)(i)(I).  As to the (bb) bookend date, the Federal Circuit, referring to that provision says:

This provision, which separates the tentative-approval phrase from its specification of certain forfeiture-triggering dates, including the non-infringement-finality date of (AA), admits of a simple reading.  There are two requirements for forfeiture: a court must have entered a final decision of non-infringement that is no longer appealable (certiorari aside), and the second (or later) filer must have received tentative approval.  The first filer forfeits its exclusivity if it has not entered 75 days after those two requirements are satisfied.  Under that reading, Apotex can trigger forfeiture in this case by obtaining the judgment it seeks here and by obtaining tentative approval, if it does both early enough in relation to Mylan’s market entry.

This and other statements in the Court’s decision seem to indicate a preference for a non-draconian interpretation of the statute.  Under a draconian interpretation, if a subsequent applicant first obtains a court decision and then obtains tentative approval, one reading of the statute is that the court decision does not trigger the 75-day period.  Why?  Because the order of events is critical under this interpretation.  That is, for the 75-day period to be triggered, an applicant must have tentative approval at the time there is a court decision.  If not, then the court decision has no effect and there is not a (bb) event.  Other, less draconian interpretations could also result under this permutation: (1) that the 75-day period is retroactive to the date after the court decision; or (2) that the 75-day period begins on the day after the date on which a subsequent applicant completed the statutory criteria (i.e., the 75-day period begins after the date a subsequent applicant obtains tentative approval). 

Continuing on, the Federal Circuit says something interesting:

Tentative approval is required before a second filer can actually trigger forfeiture, because exclusivity should not be lost unless the second filer is on the verge of having an approved product to deliver the benefits of competition.  It would be arbitrary, in terms of the discernible policy, to require tentative approval earlier.  Thus, for this case, the purpose of requiring tentative approval has nothing to do with Apotex’s approval status at the time it brought the declaratory-judgment action, and it has everything to do with its approval status when forfeiture is triggered.  Our interpretation—the 75-day clock for Mylan starts to run when Apotex has both tentative approval and a no-longer-appealable judgment of non-infringement—fits the concrete function of the provision . . . . [(Emphasis added)]

Putting aside the order of events (i.e., a final court decision and tentative approval), the Court’s conclusion (emphasized above) is pretty clear under the statute:  if “any other applicant” (i.e., a subsequent applicant) obtains tentative approval and that same subsequent applicant obtains a final court decision, then the 75-day period under FDC Act § 505(j)(5)(D)(i)(I)(bb) is triggered.  Eligibility for 180-day exclusivity would be forfeited (provided there is a subitem (aa) event) unless a first applicant timely commercially markets its drug product.   

But the Federal Circuit does not consider another option . . . .  It’s possible that FDA will interpret the “any other applicant (which other applicant has received tentative approval)” to mean that if a subsequent without tentative approval, like Apotex, obtains a court decision, then both the court decision and tentative approval requirements are met because a different subsequent applicant previously obtained tentative approval.  Under that interpretation, the 75-day period under FDC Act § 505(j)(5)(D)(i)(I)(bb) begins to run after the court decision be comes final.  Eligibility for 180-day exclusivity would be forfeited 75 days later (provided there is a subitem (aa) event), unless a first applicant commercially markets before the 75-day date. 

Interestingly, that’s exactly the tentative approval situation with generic BENICAR.  Although FDA has not tentatively approved Apotex’s ANDA, the Agency has approved ANDAs submitted by two other subsequent applicants: ANDA 090237 (Sandoz) and ANDA 091079 (Teva).  If Apotex obtains a final court decision on the ‘703 patent because the company it is now able to pursue a declaratory judgment action (and if Apotex still doesn’t have tentative approval at that time), then FDA will once again be put in the position of having to make a decision on how best to interpret the 180-day exclusivity failure-to-market forfeiture provisions.

By James E. Valentine*, Josephine M. Torrente & Frank J. Sasinowski –

On March 31, 2015, FDA’s Center for Drug Evaluation and Research (“CDER” or the “Center”) finalized its Guidance for Industry: Critical Path Innovation Meetings, establishing an enduring function of the Center to facilitate Critical Path Innovation Meetings (“CPIMs”).  The CPIM program is a tool for external stakeholders, including industry, academia, patient advocacy groups, or the government, to request a meeting to discuss a drug development methodology or technology with CDER outside of the context of review for any particular product or application. 

CPIMs are a venue to seek “[FDA’s] perspective on the potential use of proposed new tools and methods in drug development” and “advise requesters of issues to consider in pursuing their work . . . .”  FDA Guidance for Industry: Critical Path Innovation Meetings, at page 3 (Apr. 2015).  CPIMs also provide an opportunity to discuss with CDER follow-up activities, such as initiatives with consortia and/or wider engagement of the scientific community (e.g., public workshops).  The scope of the CPIM program is broad, and can concentrate on addressing any number of challenges in drug development and strategies. 

Meeting Topics 

While the program’s focus may change over time, CDER provided a preliminary list of topics:

1.      Biomarkers in the early phase of development.

CPIMs can serve as a venue for discussing the potential of proposed biomarkers, as well as the type of questions FDA may have related to proposed biomarkers.  This type of meeting may be of particular interest to prospective submitters to the Biomarker Qualification Program.

2.      Clinical outcome assessments (“COAs”) in the early phase of development.

CPIMs can also provide a forum for discussing potential approaches to developing COAs, such as patient-reported outcomes, that can support marketing approval and labeling claims.  This type of meeting could answer questions related to the development or selection of COAs in preparation for the qualification process.

3. Natural history study designs and implementation.

Here, CPIMs could assist those interested in the design of natural history studies in ways that maximize the potential to generate data, which will help in the design of interventional clinical trials and drug development programs.  Dr. Janet Woodcock, the director of CDER, has recently been advocating for greater adoption of patient registries, particularly by patient groups, to systematically collect natural history information to aid drug developers and FDA in determining if a drug has an effect.  One such use of natural history information is to leverage it as a historical control in a single-arm clinical trial.

4. Emerging technologies or new uses of existing technologies.

These types of meetings could help drug developers understand the strengths and weaknesses of technologies in relation to their various potential uses at different stages of drug development.  For example, on March 20, 2015, the National Institutes of Health and FDA hosted a public scientific workshop to discuss dystrophin protein quantification methodologies for use in Duchenne Muscular Dystorphy (“DMD”) therapy developemnt.  Under the CPIM program, stakeholders in any disease area may be able to initiate discussions with CDER that could ultimately result in similar public workshops.

5. Innovative conceptual approaches to clinical trial design and analysis.

Such CPIMs could provide a venue to discuss conceptual and general regulatory issues concerning various design and analytical approaches to clinical trials.  In particular, CPIMs may be a valuable forum for discussing, for instance, novel adaptive or enrichment study designs for classes of therapeutic targets.

Requesting a Meeting

To request a CPIM, one must first develop a proposal containing background material, the purpose of the meeting, steps that have already been taken to advance the project, any specific questions for FDA, and the desired outcome of the meeting.  Requests can be submitted electronically here.  The program is administered by the Office of Translational Sciences, which will respond to requests within 14 days. 

If a meeting request is granted, the requester will also be responsible for developing a final preparation package to submit to FDA at least two weeks before the meeting date.  CDER commits to sending a meeting summary to the requester within 60 days of the meeting.

*Admitted only in Maryland. Work supervised by the Firm while D.C. application is pending.

By Jennifer D. Newberger –

Federal Sunshine Law:  On March 31, 2015, CMS issued an email notice that the Open Payments data submission period will remain open until midnight on Friday, April 3, 2015, “to accommodate all applicable manufacturers and group purchasing organizations (GPOs) that are in the final stages of data submission.”  The original deadline for submission was March 31, 2015.

West Virginia:  On March 24, 2015, West Virginia’s Governor, Earl Ray Tomblin, signed into law S.B. No. 267, which repeals the Prescription Drug Advertising Expense Reporting requirement.  That law had required pharmaceutical manufacturers doing business in the state of West Virginia to disclose all expenditures for advertising and promotion of prescription drugs in West Virginia.  The repeal goes into effect on June 11, 2015.  Based on information on the website for the Governor’s Office of Health Enhancement and Lifestyle Planning (GO HELP), and a discussion with a responsible West Virginia official, manufacturers will still be expected to submit reports due on April 1, 2015, for expenditures made in 2014.