By Anne K. Walsh –

This post relates to the all-important package insert, which provides health care professionals with the latest information about the approved uses of a prescription drug or biological product, as well as information necessary for the safe and effective use of the product.  Last month, FDA proposed getting rid of the well-known, but little-used, paper form of the package insert, and instead requiring manufacturers to distribute this information electronically via FDA’s electronic database, http://labels.fda.gov/.  No change was proposed to the substantive content of the package insert.  The Drug and Device Law Blog aptly evaluated the product liability implications of this change; this post considers the regulatory impact of this proposal. 

To be clear, patients receiving a prescription drug will continue to receive a paper copy of the warning, risk information, or special instructions related to the drug.  FDA’s proposal only relates to the prescribing information intended for health professionals. 

FDA has been considering electronic distribution for a long time.  In 2007, FDA held a public hearing to solicit views on the feasibility of an electronic-based system, and the benefits associated with it.  In the intervening eight years, the health industry has only increased its reliance on electronic-based systems, including the labeling information supplied on DailyMed, a public database maintained by the National Library of Medicine, a sister agency of FDA.  In fact, FDA has been coordinating with the National Library of Medicine to ensure DailyMed provides the current package insert information for drugs.  The website states: 

DailyMed provides trustworthy information about marketed drugs. DailyMed is the official provider of FDA label information (package inserts). This Web site provides a standard, comprehensive, up-to-date, look-up and download resource of medication content and labeling found in medication package inserts.

The National Library of Medicine (NLM) provides this as a public service and does not accept advertisements. The drug labeling information on this Web site is the most recent submitted to the Food and Drug Administration (FDA) and currently in use; it may include, for example, strengthened warnings undergoing FDA review or minor editorial changes. These labels have been reformatted to make them easier to read.

In contrast, the language on FDA’s labeling website states:

The drug labels and other drug-specific information on this Web site represent the most recent drug listing information companies have submitted to the Food and Drug Administration (FDA). (See 21 CFR part 207.)  The drug labeling and other information has been reformatted to make it easier to read but its content has neither been altered nor verified by FDA.  The drug labeling on this Web site may not be the labeling on currently distributed products or identical to the labeling that is approved. 

Obviously this disclaimer language will need to be removed if the proposed rule is accepted.  It is unclear why FDA proposes to populate its currently unreliable database, rather than rely on the already existing and well-regarded DailyMed database. 

As a side note, FDA’s labeling website also includes information on OTC drugs, homeopathic drugs, unapproved drugs, and medical devices, with similar disclaimers that this information may not be current or even accurate.  It is unclear whether FDA will impose similar electronic and verification requirements on those product manufacturers in the future. 

According to FDA, and the study it commissioned, prescribing physicians and nurses typically do not receive the paper version of the package insert because they do not dispense drugs.  They already use a variety of electronic databases (like DailyMed) to access prescribing information.  Pharmacists, who do dispense drugs and do receive the package insert from manufacturers, complain the package insert is difficult to read due to the small font size, thin paper, and multiple folds.  FDA also found a long delay (up to 39 months) after a change is made to a drug’s prescribing information before the change actually appears in the printed prescribing information attached to a drug product.  FDA claims these delays raise concerns about use of outdated information in clinical decision-making. 

Under the proposal, manufacturers would be required to submit to FDA’s website (www.labels.fda.gov) the updated labeling every time there is a change in the labeling.  This must be done within 2 days after approval of a Prior Approval Supplement, and simultaneously with a Changes Being Effected submission.  The rule also would require manufacturers to verify that the information on the website is accurate, complete and up-to-date, and to notify FDA if this is not true, even if it is FDA’s fault for not promptly posting the information. 

The proposal also would require manufacturers to revise the product’s immediate container label and outside package to identify the FDA labeling website and a toll-free telephone number to process requests for prescribing information if the Internet is unavailable.  The manufacturer would be responsible for establishing the toll-free number, and staffing it 24 hours a day, 7 days a week, so that the prescribing information can be sent to a requestor by e-mail, fax, or paper.  Therefore manufacturers still would need to print and have on hand paper copies of the latest package insert, even though the proposal is intended to eliminate confusion from paper versions.

FDA references the July 2013 Government Accountability Office Report titled “Electronic Drug Labeling: No Consensus on the Advantages and Disadvantages of its Exclusive Use.”  Recognizing some of the challenges for electronic access, FDA proposes to exempt companies in circumstances when compliance with the rule could adversely affect the safety, effectiveness, purity, or potency of the drug; is not technologically feasible; or is otherwise inappropriate.  Examples of such circumstances include a product which requires multiple steps for reconstitution, a product that is intended for use in an emergency room, a product that may be stockpiled for use during an emergency, and cell therapy products that require proper handling and multiple steps. 

FDA proposes an effective date of 6 months from publication of the final rule, and a compliance date 2 years subsequent, to give manufacturers time to make preparations to comply with the rule.  FDA also proposes a staggered compliance date to allow blood and blood components more time for compliance.  Comments on the proposal are due by March 18, 2015.

By Kurt R. Karst –      

When Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia noted in a January 12, 2015 Minute Order that the Court filed under seal a “lengthy opinion” on January 9, 2015 denying Motions for Summary Judgment from Takeda Pharmaceuticals U.S.A., Inc. (“Takeda”), the holder of NDA 022352 for COLCRYS (colchicine) Tablets, 0.6 mg, and Elliott Associates, L.P., Elliott International, L.P., and Knollwood Investments, L.P. (collectively “Elliott”), entities with investment interests in COLCRYS, in a dispute stemming from FDA’s September 26, 2014 approval of a 505(b)(2) application (NDA 204820) submitted by Hikma Pharmaceuticals LLC (“Hikma”) and its partner, West-Ward Pharmaceutical Corp. (“West-Ward”), for MITIGARE (colchicine) Capsules, 0.6 mg, for prophylaxis of gout flares, she wasn’t kidding.  Judge Jackson’s decision, which was unsealed earlier this week, comes in at 80 pages long, including a table of contents.  It’s one of those must-read opinions for Hatch-Waxman practitioners.  Not only is the decision well written, but it’s the first ever court decision to attempt to untangle some of the knotty issues involving 505(b)(2) applications, including FDA statements concerning the “choice of listed drug” for 505(b)(2) applicants.  And Judge Jackson’s opinion is unlikely to be the last word on the issue.  On January 20, 2015, Takeda and Elliott each filed a Notice of Appeal (here and here) to the U.S. Court of Appeals for the District of Columbia Circuit.

We previously discussed the colchicine dispute in a post last October when Takeda first filed suit (), and again earlier this month () when Judge Jackson issued her January 9th Order denying Motions for Summary Judgment from Takeda and Elliott and granting Cross-Motions for Summary Judgment from FDA and Hikma/West-Ward.  This post focuses on Judge Jackson’s Memorandum Opinion, which is summed up as follows (pages 31-32):

[T]his Court concludes that Plaintiffs are wrong to characterize FDA’s actions with respect to Mitigare as unauthorized, unsafe, or unreasoned; to the contrary, it is clear on the record presented that FDA’s approval of Mitigare was consistent with the FDCA, the regulations the agency has promulgated pursuant to the FDCA, the Citizen Petition Responses FDA has issued, and the policies and practices under which the agency operates.  Furthermore, the record clearly reveals the reasonableness of FDA’s expert determination that Mitigare is safe and effective as labeled, and it supports the agency’s conclusion that Mitigare’s labeling best reflects current scientific information regarding the risks and benefits of Mitigare—a conclusion that, in any event, is entitled to a high degree of deference.  Consequently, Plaintiffs have failed to establish that summary judgment should be entered in their favor on their [Administrative Procedure Act] (APA)] claims, and this Court finds that Defendants are entitled to summary judgment as a matter of law.

The Issues 

Both Takeda and Elliott make myriad arguments challenging the propriety of FDA’s approval of the MITIGARE 505(b)(2) application.  Here’s how Judge Jackson characterizes those issues in her Opinion: 

First, both Takeda and Elliott steadfastly maintain that FDA should not have approved Mitigare without requiring West-Ward to certify to the Colcrys patents that cover the use of colchicine for the prophylaxis of gout flares, with Takeda asserting that the agency relied on Colcrys’s data to approve Mitigare and thus FDA’s failure to require West-Ward to reference Colcrys and certify to the Colcrys patents violated the agency’s own procedural rules, and Elliott arguing additionally that the agency’s failure to require West-Ward to certify to the Colcrys patents without regard to any reliance on Colcrys contravened both the agency’s longstanding policies and the FDCA itself.  In addition, Takeda takes issue with Mitigare’s label, arguing that “[t]he Mitigare label contains neither the FDA-approved low-dose-treatment notation for acute gout nor the drug-drug interaction dosing adjustments, both of which FDA expressly required in light of the severe safety concerns it identified during the Colcrys review process.”  Consequently, Takeda contends that Mitigare is unsafe as labeled, and also that FDA’s approval of Mitigare constitutes an unreasoned change in the agency’s position regarding the requirements for the labeling of single-ingredient oral colchicine products.  Takeda also argues that “FDA’s failure to enforce its own labeling requirements allowed [West-Ward] to circumvent the statutory directive that it file a Paragraph IV certification to Takeda’s patents[.]” [(Internal citations omitted)]

Judge Jackson’s handling of each of these issues is discussed separately below.

Do FDA’s procedural rules require West-Ward to reference COLCRYS even though the West-Ward did not rely on COLCRYS data?

As an initial matter, Takeda’s assertion that FDA should have required West-Ward to cite COLCRYS as a listed drug and certify to relevant Orange Book patents is generally the same argument that Takeda’s predecessor in the COLCRYS NDA, Mutual Pharmaceutical Company, Inc. (“Mutual”), made to FDA in a 2010 Citizen Petition (Docket No. FDA-2010-P-0614).  There, Mutual asked FDA to refrain from approving any future 505(b)(2) application for a single-ingredient oral colchicine drug product that does not reference COLCRYS. 

FDA largely denied Mutual’s petition in a May 2011 response.  In doing so, FDA stated that a 505(b)(2) application for a single-ingredient oral colchicine product might not need to cite COLCRYS as its listed drug, regardless of similarities in strength, pharmacokinetic profile, or other characteristics (such as dosage form or conditions of use).  FDA also emphasized in the petition response that “[w]hether another 505(b)(2) application for a single-ingredient colchicine product that does not cite Colcrys as a listed drug could ever be appropriate will depend on the facts and circumstances of the particular application. . . .”

“Plaintiffs argue now that the facts and circumstances of Mitigare’s approval are such that the agency should have required a Colcrys reference and patent certifications, and that FDA arbitrarily and capriciously failed to do so,” wrote Judge Jackson.  Specifically:

Takeda asserts that FDA’s refusal to make West-Ward reference Colcrys and certify to the Colcrys patents violated two of the agency’s “procedural requirements”: (1) the requirement that a Section 505(b)(2) applicant reference another product if the agency itself relies on studies or data relating to that other product in approving the applicant’s application, and (2) the requirement that a Section 505(b)(2) applicant choose the “most appropriate” listed drug to be its reference drug.  Elliott makes the slightly different argument that FDA not only violated the agency’s own policies, its actions also breached the FDCA itself, which, according to Elliott, requires a Section 505(b)(2) applicant to certify to all method-of-use patents that claim a use for the drug substance for which the applicant is seeking approval.  [(Internal citations omitted)]

But Judge Jackson was unconvinced, and refused to accept Plaintiffs' argument that FDA arbitrarily and capriciously violated any requirements when the Agency approved the MITIGARE 505(b)(2) application.  “[T]his Court discerns no basis in law or fact for Plaintiffs’ insistence that FDA was legally required to force West-Ward to reference Colcrys and to certify to the Colcrys patents under the circumstances presented here,” wrote Judge Jackson.

Turning to the alleged procedural requirement that a 505(b)(2) applicant cite in its application as a listed drug relied on for approval an approved drug if FDA (but not the 505(b)(2) sponsor) relies on data or information from that approved drug in approving the 505(b)(2) application, Judge Jackson boiled Takeda’s reliance argument down to major corollaries:

(1) that, under FDA’s rules, “[t]he ultimate reference and certification obligations depend on whether FDA relies on other drug studies or data” regardless of whether the Section 505(b)(2) applicant does so, and

(2) that the instant administrative record shows that “FDA explicitly referenced and relied on the Colcrys data—over and over and over again—in approving Mitigare.”  [(Internal citation omitted; emphasis in original)]

Judge Jackson found Takeda wrong on both counts.  With respect to whether or not FDA reliance counts for 505(b)(2) listed drug purposes, Judge Jackson wrote:

[T]he contention that, under established agency policy, the patent certification requirement is triggered by the agency’s reliance on the investigations underlying another drug product is entirely unsupported. . . .  The key to understanding why Takeda’s agency-reliance argument fails is recognizing its linchpin: the proposition that, without “a right of reference or use,” FDA lacks the authority to review or access third-party data from a previously approved new drug application when it is evaluating a Section 505(b)(2) new drug application.

Her opinion goes on to note that Congress used the phrase “right of reference or use” in passing FDC Act § 505(b)(2) to “expressly appl[y] only to the Section 505(b)(2) applicant,” and that it “pertains only to what application materials such sponsor is required to submit.”  “And just as the statute says nothing about the circumstances under which FDA can, or cannot, consult third-party data when it makes a scientific determination regarding whether or not to approve a Section 505(b)(2) application, the ‘right of reference’ definition that the agency provides in 21 C.F.R. § 314.3 is similarly silent on the issue of whether the agency itself needs such a ‘right’ before it can” reference data in a previously approved NDA when acting on another applicant’s 505(b)(2) application. 

Moreover, wrote Judge Jackson:

Surely the prior applicant’s voluntary submission of its proprietary data to FDA waived any right that applicant may have had to prohibit FDA from “open[ing] th[e] locked file drawer” to access the applicant’s data in the future.  And to extent that a drug sponsor’s proprietary data contributes to the general body of scientific knowledge about what a particular pharmacological agent is or does, it is not at all clear that it would even be feasible to prevent FDA’s scientists from applying that knowledge when other new drug applications are considered in the future.  [(Internal citation omitted; emphasis in original)]

That first sentence might raise some eyebrows among those in the brand-name industry, particularly given previous FDA statements on the matter (see, e.g., here).

In any case, and notwithstanding Judge Jackson’s conclusions about FDA versus 505(b)(2) applicant reliance, she says that “[e]ven if one were to accept Takeda’s legal argument that the agency’s reliance on third-party studies and data gives rise to an obligation on the part of the agency to require the applicant to reference the relied-upon drug product and certify to its patents, this Court concludes that the record here does not demonstrate FDA ‘reliance’ on Colcrys” in the Agency’s approval of the MITIGARE 505(b)(2) application “in the relevant sense.”

Does a 505(b)(2) applicant have a right to choose which approved drug is (or is not) most appropriate or most similar to cite (or not) as a listed drug relied on for approval?

Turning to Plaintiffs’ next alleged “procedural requirement” argument – that FDA violated a “choice of listed drug” requirement in approving MITIGARE without requiring a reference (and patent certifications) to COLCRYS because it is most similar to MITIGARE – Judge Jackson analyzes various FDA responses to relevant Citizen Petitions and uses them to pick apart Plaintiffs’ argument:

[T]heir argument hinges on the existence of an FDA drug reference policy that does not exist. . . .  When all of the agency’s statements are read in context, [] it is clear that FDA’s policy is to view the “most appropriate” drug to be whatever drug fills in the gaps in the data the drug sponsor submits to support the sponsor’s contention that the drug is safe and effective, and not whatever listed drug is most similar in nature to the one the applicant proffers. . . . 

The bottom line is this: FDA’s prior statements confirm that, other than where duplicate drug products are involved, a Section 505(b)(2) applicant has the discretion to select a reference drug, and to make that selection in relation to the scope of the materials the applicant desires to submit.  Thus, to the extent that the agency has any “policy” about what drug should be referenced in a Section 505(b)(2) application, FDA has decided to leave it up to the drug sponsor to determine whether the sponsor would like to do less work and rely on a very similar drug, or do more work and rely on a dissimilar drug.  [(Internal citations omitted; emphasis in original)]

FDA’s “choice of listed drug” policy is one that we’ve commented on before in our post “FDA’s House Rules on 505(b)(2) NDA Choice of Listed Drug; How Does it Affect Dealer’s Choice?”  As noted there, we think there’s room in the 505(b)(2) space for an applicant to argue that even where there is an approved pharmaceutical equivalent, such drug does not necessarly have to be cited by a 505(b)(2) applicant as a listed drug relied on for approval.  The policy is also at issue in a recent Citizen Petition (Docket No. FDA-2014-P-2188) concerning abuse-deterrent immediate-release oxycodone tablets.

Does the FDC Act unambiguously require a 505(b)(2) applicant to certify only to patents associated with the RLD?

“Yes,” says Judge Jackson in response to Elliott’s argument that the text of the FDC Act required West-Ward to certify to the various patents listed in the Orange Book for COLCRYS regardless of whether or not West-Ward did relied on COLCRYS for the MITIGARE approval.  In revisiting the debate as to whether the word “drug” in the statute means a particular drug product, or, more generally, a drug substance, Judge Jackson sets up the issue as follows:

The statutory question that Elliott raises here is, in essence, whether 21 U.S.C. § 355(b)(2)(A) requires not only certification to those patents that claim the drug product on whose investigations the 505(b)(2) applicant relied (i.e., the reference listed drug), but also certification to all patents that claim a method of using the drug substance (i.e., the active ingredient) in the new drug product that the applicant has proffered for approval.  [(Emphasis in original)]

Her Chevron analysis ends at Step One:

[T]his Court finds that Congress’ intent regarding the scope of a Section 505(b)(2) applicant’s patent certification obligation is clear on the face of the statute: such applicant need only certify to the product patents or the method-of-use patents that are associated with the reference listed drug (i.e., the drug product on whose investigations the 505(b)(2) applicant relies).

We’ll leave it to you to go through the sepcifics of Judge Jackson’s analysis on pages 52-65 of the opinion. 

Is the MITIGARE approval an unreasoned change of FDA policy concerning single-ingredient oral colchicine drug products, and do certain safety-related labeling differences call into question FDA”s approval of MITIGARE?

In the final two sections of her decision, Judge Jackson moves out of the listed drug/patent certification space and into the drug labeling space.  First, Takeda questioned FDA’s approval of MITIGARE with labeling that differs from COLCRYS with respect to certain drug-drug interactions, and in light of certain FDA statements in the Agency May 2011 Citizen Petition response.  Judge Jackson didn’t bite:

Given that FDA never promised in the Colchicine Citizen Petition Response to require that Colcrys’s drug-drug interaction table appear on all future products, and also that the agency did engage in precisely the kind of individualized assessment of Mitigare’s label that the Colchicine Citizen Petition Response said would be required regarding single-ingredient oral colchicine products in the future, FDA’s conclusion that Mitigare did not need to include the same low-dose requirements as appear on Colcrys’s label was hardly a change of FDA’s position, much less an “arbitrary” or “capricious” deviation from its prior policy.

Although a closer question was presented in the context of certin FDA statements and “the extent to which the labels of future single-ingredient oral colchicine products approved for the prophylaxis of gout flares must provide information about the use of the product for the treatment of acute gout flares,” Judge Jackson concluded that “[t]o the extent that FDA’s decision to approve Mitigare without a label that included Colcrys’s AGREE trial regimen can be viewed as a departure from the agency’s prior position, this Court concludes that it was not an unreasoned change in position in violation of the APA, because the record clearly reflects the agency’s well-reasoned and well-supported rationale for reaching this conclusion.”  (Internal citation omitted.) 

Second, Takeda argued that the MITIGARE approval was arbitrary and capricious because the drug product is not safe in light of certain labeling deficiencies.  Judge Jackson quickly dispensed with this matter by deferring to FDA’s scientific judgment:

[FDA’s] scientific determination that Mitigare is safe and effective as labeled is entitled to the highest degree of deference, meaning that, even if this Court had the expertise to reevaluate FDA’s safety and efficacy decision, it could not freely supplant the agency’s scientific judgments about what a drug product’s label must include in order to ensure safe use of that product, any more than it could roll up its sleeves and dig into the data or run its own clinical experiments in order to determine whether FDA was wrong to conclude that such drug product was, in fact, safe.

We anticipate a lively debate as this case moves on to the D.C. Circuit.  And we’ll be keeping a close eye on it. 

By Jennifer D. Newberger –

FDA has historically taken the position that products intended to benefit a user’s overall health and wellness, and that did not make claims about disease prevention, treatment, mitigation, or cure, would not be regulated as medical devices.  For example, in 1995, FDA issued Guidance Document for the Preparation of Premarket Notification [510(k)] Applications for Exercise Equipment.  In that guidance, FDA stated:

Note that FDA regulates exercise equipment only if the equipment is intended to be used for medical purposes, such as to redevelop muscles or restore motion to joints or for use as an adjunct treatment for obesity. FDA does not regulate exercise equipment intended only for general physical conditioning and/or for the development of athletic abilities in individuals who lack physical impairment. Therefore, it is not necessary to notify FDA of an intent to market a device if it will not be labeled or promoted for medical uses. However, FDA will regulate the equipment and may require premarket notification if any promotional material appears which makes medical claims after marketing begins.

When FDA issued the Mobile Medical Applications guidance in September 2013, it again repeated its position that it did not intend to regulate apps intended for general health and wellness. 

Given this historical view on general wellness devices, FDA’s issuance of a draft guidance, General Wellness: Policy for Low Risk Devices, on January 16, 2015, would not, on its face, appear to present a major change to these types of products.  There are, however, a few points in the guidance worth noting.  First, FDA, for the first time, defines a “general wellness product” as a product that has:

1. an intended use that relates to maintaining or encouraging a general state of health or a healthy activity, or
2. an intended use claim that associates the role of healthy lifestyle with helping to reduce the risk or impact of certain chronic diseases or conditions and where it is well understood and accepted that healthy lifestyle choices may play an important role in health outcomes for the disease or condition.

Draft Guidance, at 3.

The second of these is particularly interesting, and appears to expand the category of general wellness products excluded from FDA’s jurisdiction.  FDA states that this second category includes two subcategories:

1. intended uses to promote, track, and/or encourage choice(s), which, as part of a healthy lifestyle, may help to reduce the risk of certain chronic disease or conditions; and
2. intended uses to promote, track, and/or encourage choice(s) which, as part of a healthy lifestyle,  may help living well with certain chronic diseases or conditions.

Draft Guidance, at 4 (emphasis in original).

The draft guidance includes examples of claims falling within this subcategory, including the product promotes physical activity, which, as part of a healthy lifestyle may help reduce the risk of high blood pressure. Another example would be a product that tracks caloric intake and helps manage a healthy eating plan to maintain a healthy weight and balanced diet, which in turn may help living well with high blood pressure and type 2 diabetes.

The significance of this is that the manufacturer may say more about the product than that it merely helps achieve a healthy lifestyle or may help aid in weight loss.  It can then link those outcomes to potential benefits with specific disease states, implying that the product itself may, to a certain extent, help mitigate or reduce the risk of those disease states.  FDA has included the caveat that it must be well known that healthy lifestyle choices are associated with improved outcomes for those diseases or conditions.  This seems like a reasonable requirement, and still permits health outcomes claims that, prior to the guidance, may not have been permissible or were at least questionable.

This draft guidance is another welcome sign that FDA is attempting to focus its resources on high(er) risk products, and will not actively regulate products that present a low risk to the user.  We hope to see this trend continue when FDA issues its draft guidance on regulation of clinical decision support software, on the “A-list” for development in FY2015. 

By Riëtte van Laack –

As we previously reported, the Farm Bill of 2014 tasked the Agricultural Marketing Service (AMS) with the preparation of a report regarding the need for a federal standard of identity for honey. Without much fanfare, AMS recently published its report to FDA.

Not surprisingly, the majority of the 85 comments to AMS support the development of a standard. However, there is no consensus as to the specific content of the standard. Among other things, the comments differ in whether filtration should be permitted in honey, the maximum hydroxymethylfurfural (HMF) (a measure of heat treatment of honey) level for honey, and a requirement for pollen count to identity floral sources, growing region and filtration. Thus, other than confirming that stakeholders see a need for a federal standard of identity, the report provides little direction for FDA.  It therefore appears unlikely that FDA will develop a federal standard for honey in the near future.

By Kurt R. Karst –       

The news came down on Thursday that FDA’s Center for Drug Evaluation and Research Director Janet Woodcock, M.D., named Kathleen “Cook” Uhl, M.D., as the permanent director of the Office of Generic Drugs (“OGD”).  Although Dr. Uhl has manned the helm at OGD since March 2013 (see here), she has only done so in an acting capacity.  She was tapped as Acting Director after the departure of Gregory P. Geba, M.D., who was OGD Director for only about nine months (see here).  OGD has done without a longstanding permament Director since Gary J. Buehler, RPh., left OGD in March 2010. (He then left FDA several months later for an industry position.)  Keith Webber, Ph.D., who has also  since left FDA for a position in industry, filled in as Acting Director after Mr. Buehler’s departure.  A copy of Dr. Woodcock’s announcment of Dr. Uhl’s permanent position follows:

Dear Office of Generic Drugs Staff:

I am pleased to share with you the following news.  An announcement will be issued to all CDER staff today.

Kathleen “Cook” Uhl, M.D., has been named the permanent director of the Office of Generic Drugs (OGD). She brings to the position more than 30 years of regulatory and medical policy, scientific, and government leadership experience. 

I am confident in Cook’s continued exceptional leadership of OGD and its support of our Center’s mission.  She brings extensive knowledge and skills in developing and implementing standards for the safety and effectiviness of generic drugs. 

I would like to extend my sincere thanks to Cook for her outstanding work and service as acting director.  I would also like to thank all of you in OGD for your continued hard work and dedication to CDER’s mission during not only this leadership transition, but also the transition of OGD into a super-office.

Please join me in welcoming Cook to her permanent role.  Keep up the great work in OGD! 

Janet Woodcock

During her tenure as Acting Director, Dr. Uhl has overseen dramatic change within OGD, primarily as a result of FDA’s implementation of the Generic Drug User Fee Amendments of 2012.  This includes significant changes in OGD operations and personnel (see here and here) – including recent changes to the Office of Pharmaceutical Quality (see here) – as well as policy changes (not all of which have been welcomed by the generic drug industry) (see here). 

Dr. Uhl’s accession to permanent OGD Director signals Dr. Woodcock’s confidence in Dr. Uhl’s ability to man the OGD ship through the sometimes turbulent waters of GDUFA and generic drug approvals.  To many in the generic drug inductry, Uhl’s transition from acting to permanent OGD Director was also a foregone conclusion, though the position was advertised for a short time last year on USAJobs.gov. 

By John R. Fleder –

Lawyers are often asked if a client can be sued if the client does something.  Almost without exception, the answer is yes.  It does not take much for a person to file a lawsuit in court without much or any evidence, and without a viable legal theory.  As shown below, a lawsuit filed in court hardly translates in many instances to a viable cause of action.   Nevertheless, these suits are being filed in great numbers.

These days, enforcement of the FDC Act in court stems largely from civil cases filed under seal under the federal False Claims Act, 31 U.S.C. § 3029 et. seq. (“FCA”).  The cases are typically brought by one or more individuals who previously worked for the defendant or defendants and are generally referred to as whistleblowers.  In the FDA arena, more often than not, the cases are filed against a drug or medical device manufacturer.  However, we have also seen FCA suits filed against individuals, state and local governments, and even FDA consultants.

We have previously discussed (see, e.g., here, here, here, and here) other cases where plaintiffs have filed FCA cases against companies regulated by FDA, using a theory that purported regulatory violations, such as those relating to good manufacturing practices, could form a legal basis for an FCA case.  Just last week a judge in California issued a thorough and well-written decision that may put to rest plaintiffs’ efforts to use FDC Act matters to support an FCA case.

In U.S. ex rel. Campie v. Gilead Sciences, Inc., No. 11-0941 (N.D. Cal. Jan. 7, 2015) a judge dismissed an FCA case.  Plaintiffs had alleged that Gilead and others had violated FDA cGMP regulations, and thus were liable under the FCA.  The court methodically went through each of plaintiffs’ theories and rejected all of them.  These theories included: (1) using an unregistered manufacturing facility; (2) distributing adulterated drugs; (3) making false statements in NDAs, in that impurities in the drugs were not identified in the NDAs; (4) submitting false certificates of analysis that an API was in compliance with cGMPs; and (5) using adulterated drugs in clinical trial products.

The court ruled that plaintiffs had failed to state a claim for relief under the FCA.  In particular, the court concluded that plaintiffs had failed to allege that defendants had engaged in any fraudulent conduct or made any false statement to CMS (Centers for Medicare and Medicaid Services).

Instead, plaintiffs had alleged that defendants falsely certified to FDA that they would comply with FDA’s cGMP regulations, and withheld information in various submissions to FDA.  However, the court’s thorough analysis of this issue resulted in yet another court ruling that alleged false certificates, statements and other allegedly fraudulent conduct directed at FDA during the approval process does not state a valid FCA cause of action, even though there are subsequent reimbursement requests made to CMS.

The court also said that even when companies make a purported false certification to a regulatory agency such as FDA, asserting that the company is in compliance with provisions of the FDC Act, that certification cannot in and of itself serve as a basis for an FCA cause of action.  Rather there must be a direct link between the alleged false statement and the resulting request for payment, namely that the payment must be conditioned on the falsity.  Here, the court concluded that reimbursement by CMS was conditioned only on the drugs having been approved by FDA, not whether Defendants were in compliance with FDA rules.

In a discussion that is relevant to many types of cases in suits filed against drug and medical device companies, the court also noted the difficulty of second guessing FDA’s decision to approve a drug.  The court refused to delve into what it called “the complexities, subtleties and variabilities of the FDA approval process,” because the court would have had to determine whether a falsity submitted to FDA would have caused the agency to make a different approval decision than the agency made.  “Violations of for example cGMPs would seem better addressed by the FDA regulatory process than by the blunt tool of FCA litigation.”

The answer to the question “can I be sued” is thus all too often yes.  The answer to “can I be sued for doing xxx” is also too often yes.  The better question to ask is “if I am sued for xxx, what is the likelihood that the suit will be successful?”  This court ruling should give comfort to many FDA-regulated companies that although they will continue to face a serious threat of so-called whistleblower suits under the FCA, the cases may well not make their way past a Motion to Dismiss.

By Riëtte van Laack –

According to an FTC Complaint, filed in the United States District Court for the Northern District of Illinois, the advertising practices of NourishLife, an Illinois Company, and its owner, Mark Nottili, (“Defendants”) violated the FTC Act.  The FTC alleges that Defendants falsely advertised its “speech” supplements with claims that the products would help children with speech problems and develop normal speech and language capacity, without having clinical evidence to support such claims.  The FTC asserts that from at least 2008 through 2013, Defendants sold the supplements on the company’s website and through a network of distributors.  Among other things, the FTC alleged that:

• Defendants claimed that the speech products were clinically proven to work whereas they had no clinical data;
• Defendants claimed that a website, which discussed evidence regarding the effectiveness of various ingredients included in Defendants’ speech products, was independent, whereas Defendants controlled the website; and
• Defendants used “dramatic testimonials from parents” but failed to disclose a material connection between the parents (who received free supplies) and Defendants.

Under a proposed stipulated settlement Defendants will be enjoined from making advertising claims for Defendants’ speech products unless they possess competent and reliable scientific evidence to support the claims.  For the speech products,  “competent and reliable scientific evidence” is “evidence [on the covered or an essentially equivalent  product] that is sufficient in quality and quantity, based on standards generally accepted by experts [in the field] when considered in light of the entire body of relevant and reliable scientific evidence, to substantiate” the speech product’s claim.  The clinical testing must

(1)  “be randomized, double-blind, and placebo-controlled” (“RCT”) and
(2)  “be conducted by researchers qualified by training and experience to conduct such testing.”

Notably, the settlement does not specify the number of RCTs required for claims for the speech products.  The provision regarding substantiation of claims for non-speech products does not include a specific requirement for RCTs.

The proposed settlement also addresses Defendants’ future use of endorsements and testimonials.  Any material connections must be disclosed “clearly and conspicuously, and in “close proximity” to the endorsement, testimonial, or other representation.  The terms “clearly and conspicuously” and close proximity” are defined (e.g., “close proximity” means “on the same print page, webpage, or other electronic page, and not accessed or displayed through hyperlinks, pop-ups, [etc.]”). 

The settlement includes a monetary judgment of $3.68 million.  However, due to the Defendants’ alleged inability to pay, all but $200,000 of this amount is suspended.  

By Kurt R. Karst –      

A little over three months ago, we on a Complaint and a Motion for Temporary Restraining Order and Preliminary Injunction Takeda Pharmaceuticals U.S.A., Inc.’s (“Takeda”) filed against FDA in the U.S. District Court for the District of Columbia challenging the Agency’s September 26, 2014 approval of a 505(b)(2) application (NDA 204820) submitted by Hikma Pharmaceuticals LLC (“Hikma”) and its U.S. partner West-Ward Pharmaceutical Corp. (“West-Ward”) for MITIGARE (colchicine) Capsules, 0.6 mg, for prophylaxis of gout flares.  Takeda is the holder of NDA 022352 for COLCRYS (colchicine) Tablets, 0.6 mg, which FDA approved back in 2009 to prevent gout, treat gout flares, and treat Familial Mediterranean Fever.  The Orange Book currently list a single period of unexpired non-patent exclusivity for COLCRYS, as well as information on several patents that expire in 2028 and 2029.  The MITIGARE NDA does not cite COLCRYS as a listed drug relied on for approval, but rather a different drug: COLBENEMID, a fixed-dose combination drug product containing probenecid (500 mg) and colchicine (0.5 mg) FDA approved under NDA 012383 on July 27, 1961, that is no longer marketed, and for which no patents are listed in the Orange Book.  That choice of listed drug for the MITIGARE 505(b)(2) NDA is at the heart of Takeda’s early October 2014 lawsuit against FDA. 
 
Briefly, Takeda alleges that FDA’s approval of MITIGARE violates the FDC Act and the Administrative Procedure Act in several respects:

First, FDA acted arbitrarily and capriciously in approving Hikma’s Section 505(b)(2) application for Mitigare without requiring the label to contain critical safety information that FDA previously stated was necessary for single-ingredient oral colchicine products.  Second, FDA’s approval of Hikma’s application for Mitigare was unlawful, arbitrary and capricious because, as approved, Mitigare is not safe in light of the defects in its label.  And third, FDA’s failure to require Hikma to reference Takeda’s own colchicine drug, Colcrys®, in its application interfered with Takeda’s rights to participate in the administrative process, including the Paragraph IV certification process under the Hatch-Waxman Act and the Citizen Petition process. 

A lot has happened since early October.  Here are some highlights . . . .

• On November 4, 2014, three related entities – Elliott Associates, L.P.,  Elliott International, L.P., and Knollwood Investments, L.P. (collectively “Elliott”) – with investment interests in COLCRYS filed a separate Complaint against FDA in the D.C. District Court challenging the Agency’s approval of MITIGARE along the same lines as Takeda.  Elliott also filed a Motion for Summary Judgment in its case.  D.C. District Court Judge Ketanji Brown Jackson subsequently determined that the two cases should be considered in tandem.
• On November 5, 2014, Judge Jackson converted Takeda’s Motion for a Preliminary Injunction into a Motion for Summary Judgment by consolidating Takeda’s Motion for a Preliminary Injunction with the merits of Takeda’s case against FDA.  Also, Judge Jackson subsequently permitted Hikma and West-Ward to intervene in the case.
• Cross-Motions for Summary Judgment were subsequently filed by FDA (here) and Hikma/West-Ward (here) in the Elliott case.  (Additional briefs filed in the cases along the way are available here, here, here, here, here, and here.)
• Meanwhile, in a patent infringement action Takeda filed against Hikma and West-Ward in early October in the U.S. District Court for the District of Delaware, see Takeda Pharmaceuticals U.S.A., Inc. v. West-Ward Pharmaceutical Corporation et al, Case No. 1:14-cv-01268-SLR, that district court issued a Temporary Restraining Order (on October 9, 2014) preventing Hikma from marketing MITIGARE.  Later, the district court denied Takeda’s request for a Preliminary Injunction, which Takeda appealed to the U.S. Court of Appeals for the Federal Circuit, but granted an injunction pending appeal.  On January 9, 2015, the Federal Circuit issued an Order (Memorandum Opinion to follow) affirming the Delaware District Court’s Order denying Takeda’s Motion for Preliminary Injunction, and vacating the injunction pending appeal ordered by the Delaware District Court.

That brings us to Judge Jackson’s January 9, 2015 Order.  In it, Judge Jackson denied Takeda’s Motion for Summary Judgment, denied Elliott’s Motion for Summary Judgment in the separately filed action, and granted FDA’s and Hikma’s/West-Ward’s Cross-Motions for Summary Judgment in the Elliott action.  Those decisions led Judge Jackson to order the dismissal of the Elliott action, and also to order that Takeda show cause (on or before January 23, 2015) as to why the D.C. District Court should not dismiss Takeda’s lawsuit sua sponte. 

Unfortunately, Judge Jackson's Memorandum Opinion providing the basis for her decisions is not yet public.  It was issued under seal on January 12, 2015 is is reportedly "quite lengthy."  (A response to the court's Order to Show Cause as to why the Memorandum Opinion should not be made public is due by January 23, 2015.)  So consider this post as a setup to a further discussion of the issues in the case once the decision is unsealed. 

Regardless of when Judge Jackson’s Memorandum Opinion will issue, it appears that the parties will fight on.  Shortly after Judge Jackson’s Order was handed down last Friday, Takeda and Elliott separately filed an Emergency Motion for Injunction Pending Appeal (here and here).  FDA and Hikma/West-Ward promptly opposed the motions (here and here).

The battle over FDA’s approval of MITIGARE is not the only battle over a 505(b)(2) application we’re keeping a close eye on these days.  As we previously reported, FDA was sued in December after the Agency granted only a tentative approval to Veloxis Pharmaceuticals, Inc.’s 505(b)(2) NDA 206406 for ENVARSUS XR (tacrolimus extended-release tablets), 0.75 mg, 1 mg, and 4 mg, for prophylaxis of organ rejection in kidney transplant patients.  That battle, which concerns the scope of 3-year non-patent exclusivity, has been on hold until FDA issues a decision on the underlying merits in the matter.  FDA was supossed to have issued a decision on January 12, 2015.  The parties were ordered to appear before the court for a status hearing on January 14, 2015. 

UPDATE:

• The following Minute Order was entered late on January 12, 2015: "MINUTE ORDER denying Takeda's Emergency Mot. for Inj.  Relief Pending Appeal and Elliott's Mot. for Inj. Pending Appeal and Joinder in Takeda's Mot. for Same.  This Court issued an order denying Plaintiffs' motions for summary judgment on January 9, 2015, and filed a lengthy opinion stating the reasons for that order today. (See Order, ECF No. 68; see also Mem. Op., ECF No. 74.)  Plaintiffs have now moved for a stay of this Court's order pending appeal.  "A party who moves for a stay or injunction pending appeal bears the burden of showing [that] the balance of four factors weigh[s] in favor of the stay/injunction: (1) the likelihood that the party will prevail on the merits of the appeal; (2) the likelihood that the party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting a stay."  McCammon v. United States, 584 F. Supp. 2d 193, 197 (D.D.C. 2008) (citing United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 988, 990 (D.D.C. 2006)).  In considering such a motion, the Court must be mindful of the fact that "a stay pending appeal is 'always an extraordinary remedy,' and that the moving party carries a heavy burden to demonstrate that the stay is warranted."  Philip Morris, 449 F. Supp. at 990 (quoting Brotherhood of Railway and Steamship Clerks, Freight Handlers and Station Employees v. National Mediation Board, 374 F.2d 269, 275 (D.C. Cir. 1966)).  With that standard in mind, this Court has considered the applicable factors and concludes that the balance of these factors weighs against entering the injunction that Plaintiffs seek.  Plaintiffs are unlikely to prevail on the merits of their appeal for the reasons stated in this Court's opinion denying their motions for summary judgment, and whatever economic harm that Plaintiffs may suffer in the absence of a stay is outweighed by the harms that the Defendant-Intervenors and the public at large will suffer as a result of a stay. Consequently, Plaintiffs' Motions for Stay Pending Appeal are DENIED."

By James C. Shehan –

FDA’s Oncologic Drugs Advisory Committee unanimously voted in favor of approval of EP2006, Novartis’s biosimilar version of Amgen’s Neupogen® (filgrastim) for all five of the indications for which Neupogen is approved. This ground-breaking event manages to both move the US a little closer to the long-awaited first approval of a BPCIA biosimilar and to highlight the challenges biosimilars have overcome and the open issues they still face before winning FDA approval, launching and gaining market acceptance. Among those issues are what the generic names will be, the standard for interchangeability and the applicability of the patent dance provisions.

Novartis announced in July that EP2006 was the first 351(k) application accepted for review by FDA, an event that occurred almost 4 12 years after passage of the BPCIA. Neupogen was first approved in February 1991 and is a relatively simple biologic, checking in at 175 amino acids. Amgen sold about $1.2B of Neupogen last year. Novartis, which claims world leadership in the biosimilar market, currently sells biosimilar filgrastim (as Zarzio) in over 40 countries. It is one of 19 approved biosimilars in Europe, where it was approved in February 2009 (EMA Public summary).

In advance of the advisory committee meeting, Novartis announced in December the results from Pioneer, its Phase 3 study of 218 patients. According to Novartis, Pioneer demonstrated EP2006’s similarity to Neupogen in the prevention of severe neutropenia in breast cancer patients. Novartis also said that the study showed that repeated switching at each cycle between the biosimilar and reference filgrastim showed no impact on efficacy, safety or immunogenicity.

As is customary, the Advisory Committee meeting was preceded by FDA’s release of a briefing document. The briefing document states that the analytical data show that both clinical and commercial lots of the Novartis product are “highly similar” to Neupogen notwithstanding “minor differences in clinically active components.” FDA also stated that the clinical development program showed that "there are no clinically meaningful differences” between EP2006 (Novartis’s internal name for its product) and Neupogen in terms of safety, purity and potency.” FDA specifically cited five PK and PD studies in healthy subjects and the Pioneer study. Of particular note, FDA discussed in the briefing document that commercial lots of EP2006 had a lower protein content than Neupogen, an issue that did not occur with the EP2006 clinical study lots. FDA also referenced Novartis’s use of EU-approved Neupogen in some clinical studies and the comparability studies submitted by the company to support the use of non-US product.

FDA added eight temporary members to the roster of the Oncologic Drugs Advisory Committee for this meeting, including the chief of the cell processing section of NIH’s Clinical Center, a biochemical engineer, a pharmaceutical sciences expert and a pharmacology expert. Given the reliance on analytical as well as clinical data to support biosimilar approval, this is not surprising.

As reflected in the unanimous votes on the questions raised by FDA, the Advisory Committee ultimately had relatively few concerns about the safety and efficacy of EP2006. The issue of pricing was, however, raised by several committee members, and questioning of one Novartis employee led to an assurance that the product would cost less than Neupogen (see New York Times article here).

The issues that were not raised in the briefing document and at the meeting are worth noting. One prominent one is of course whether the Novartis product will have the generic name filgrastim or some variant. Another issue for Novartis is that its proposed brand name, Zarxio, has apparently not yet been accepted by FDA. Without either a settled generic or brand name, the internal reference EP2006 was used throughout the meeting and in the briefing document. There was also no mention at all of interchangeability, governed by a higher standard than simple biosimilarity.

Assuming that FDA accepts its advisory committee’s recommendation and moves on to approval, EP2006 faces another big challenge before it gets to the market. Novartis and Amgen are locked in patent litigation that has raised the issue of whether and how the complicated patent dance provisions of the BPCIA applies (see our previous posts here, here, here and here).  Amgen recently fled a Motion for Partial Summary Judgment in the case. The issue that has spilled over into an FDA citizen petition (see our previous post here).  And patent dance applicability reared its head on another front last week as Momenta supplemented its 2012 comments to an Amgen citizen petition that requests FDA to declare that the patent dance provisions are mandatory (see comments here).

One other event last week illustrates the less than smooth road ahead for biosimilars. FDA announced that it plans to issue four more biosimilar guidances in 2015, covering interchangeability, labeling, statistical issues, and additional general questions and answers.

By Ricardo Carvajal –

A California federal district court granted summary judgment in favor of the government in a lawsuit brought by animal rights organizations that focused on treatment of egg-laying hens.  Plaintiffs initially filed petitions with several federal agencies asking them to issue regulations that would have required egg producers to identify their egg production methods (e.g., cage-free vs. battery cage) on the label of their eggs.  When the petitions were denied, plaintiffs filed suit, alleging that the denials were arbitrary and capricious in violation of the APA.

As expected given their varying statutory authorities, each of the agencies in question cited somewhat different grounds for denying the petitions.  In part, FDA claimed that it lacked authority “to regulate egg labeling based only upon consumer interest in animal welfare (as opposed to reasons relating to safety or nutrition).”  FTC “found that the plaintiffs' petition provided insufficient evidence by which [FTC] could conclude that consumers are deceived by egg producers' current labeling practices.”  USDA/AMS concluded that it could not require the labeling desired by plaintiffs under its voluntary marketing programs, and USDA/FSIS concluded that its labeling authority over shell eggs was too limited to accommodate the plaintiffs’ request. 

The court held that none of the agency responses were arbitrary or capricious.  A common thread running through the court’s analysis of FDA and FTC’s responses was the high level of deference accorded to an agency’s refusal to promulgate a rule, particularly where rulemaking is left to agency discretion (as opposed to being mandated by Congress).

By Wes Siegner –

In an exercise in hairsplitting, FDA’s Mike Taylor has written to Herbalife to complain about a YouTube video, in which a former FDA official now working for Herbalife, Bill Frankos, allegedly (the video has been removed at FDA’s request) states the following:  “When I was director of dietary supplements at the FDA, I oversaw nutritional supplements, making sure they were safe and effective for use.”

As we understand his responsibilities while at FDA, Bill Frankos (with others at FDA) was responsible for making sure that dietary supplements were safe and effective for their intended uses.  FDA has many tools to fulfill this responsibility.  Unsafe dietary supplements are adulterated pursuant to the Federal Food, Drug, and Cosmetic Act (FDC Act), while products that claim to have beneficial effects that they do not have are misbranded.  The FDC Act prohibits the marketing of adulterated or misbranded dietary supplements.  FDA has the authority to, and does, issue warning letters, seize violative products, and even prosecute companies and individuals who market adulterated or misbranded dietary supplements.  Therefore, Bill Frankos’ statement seems appropriate.

At no point does FDA’s letter say that the video claims that FDA approves dietary supplements as safe and effective.  And yet FDA’s letter states that “[t]he safety and effectiveness standard referred to in the Herbalife video is the FDA standard for drug review and does not reflect what FDA does with regard to dietary supplements.”  Possibly there was more to the video than just Bill Frankos’ quoted statement that led FDA to conclude there was some implication of FDA approval, but as it has been removed from the internet, we are unable to tell.

FDA’s objections to the video are particularly questionable in light of FDA’s misleading statements in its own letter.   FDA writes that the agency “can stop marketing only by proving to a court there is inadequate information to provide reasonable assurance that the new dietary ingredient does not present a significant or unreasonable risk of illness or injury.”  This is incorrect.  FDA has multiple effective tools, short of actually going to court, that effectively stop improper dietary supplement marketing, including requests for recalls, the issuance of warning letters, and the administrative revocation of facility registrations, to name a few.  Further, given that the FDC Act is a strict liability criminal statute, most companies and corporate executives recognize that they ignore FDA concerns over safety at the peril of their own reputation and freedom.  The mere suggestion in a phone call that there might be a safety issue is often sufficient to stop marketing.

In short, under the FDC Act, FDA has sufficient authority and has the responsibility to regulate dietary supplements to assure safety and efficacy.  As is true with other FDA-regulated industries, companies marketing dietary supplements share in that responsibility.

By Kurt R. Karst –

Late last month, the Pharmaceutical Research and Manufacturers of America (“PhRMA”), the Biotechnology Industry Organization (“BIO”), and the Generic Pharmaceutical Association (“GPhA”) jointly filed a Petition for a Writ of Certiorari (Case No. 14-751) with the U.S. Supreme Court asking the Court to take up a case that could significantly affect the pharmaceutical industry (and beyond).  The appeal comes after a September 30, 2014 decision in which a unanimous panel of judges from the U.S. Court of Appeals for the Ninth Circuit affirmed an August 2013 decision from the U.S. District Court for the Northern District of California finding that a first-in-the-nation Safe Drug Disposal Ordinance passed by the Alameda County, California Board of Supervisors in July 2012 is not unconstitutional.  States, counties, and municipalities across the nation will be closely following this latest development as they consider whether or not to develop similar extended producer responsibility (a.k.a. product stewardship) legislation and programs targeting pharmaceuticals and that require manufacturers to finance the costs of safe disposal of their products.

As we previously reported (here, here, and here), PhRMA, BIO, and GPhA challenged the Alameda Ordinance as a per se violation of the Commerce Clause of the U.S. Constitution, and, in particular, the dormant Commerce Clause.  Under that Clause, state and local governments may not enact regulations that unduly interfere with interstate commerce.  While the Ninth Circuit noted that “[o]pinions vary widely as to whether adoption of the Ordinance was a good idea,” the Court “needed only to review the Ordinance and determine whether it violates the dormant Commerce Clause of the United States Constitution.”  “We did; it does not,” wrote the panel after examining the Ordinance under the U.S. Supreme Court’s two-tiered approach to analyze whether a state or local economic regulation violates the dormant Commerce Clause.

In their Petition to the U.S. Supreme Court, PhRMA, BIO, and GphA present the following question:

Whether the dormant Commerce Clause permits a local law that directly conscripts out-of-state manufacturers to enter the locality and to assume all costs and responsibility for collecting and disposing of unused medicines from local residents, for the avowed purpose of shifting the costs of this traditional government function from local taxpayers and consumers to foreign producers and consumers?

Urging the Court to review the Ninth Circuit’s decision, the trade groups state:

The Ninth Circuit’s unqualified endorsement of local laws requiring interstate producers to enter the locality, to perform an uncompensated local public service at the expense of the interstate market, sharply conflicts with this Court’s precedent.  It violates both the specific precedent forbidding laws requiring interstate actors to establish operations in the local jurisdiction, and the general precedent forbidding laws that attach conditions to the sale of products in order to secure a local economic advantage at the expense of outsiders.  While the dormant Commerce Clause provides states with broad leeway to regulate interstate products to protect local residents, it imposes a virtually per se prohibition against leveraging the local presence of products to coerce interstate producers to enrich local residents at the expense of non-local businesses and consumers. [(Emphasis in original.)]

The trade groups go on to note the potentially expansive – i.e., “Balkanizing” – effect of the Alameda Ordinance:

Nor will this effort to dragoon out-of-state actors into local jurisdictions to provide services to local residents be confined to pharmaceutical products.  The sole mission of the California Product Stewardship Council (CPSC), a group at the heart of the lobbying effort to pass the Alameda Ordinance, is to ensure that “Producers have the primary responsibility to establish, fund, and manage end of life systems for their products with state government setting performance goals.”  The CPSC hailed the decision below as a “landmark victory” for extended producer responsibility and is pressing for programs comparable to the Alameda pharmaceutical takeback program for medical sharps, paint, and batteries.

There is no reason to think that other jurisdictions in the Nation will not follow suit, as localities have every incentive to favor their own residents by shifting regulatory costs onto the interstate market.

Regulations similar to the Alameda County Safe Drug Disposal Ordinance have been enacted in King County, Washington.  There too, PhRMA, BIO, and GphA, along with  the Consumer Healthcare Products Association (“CHPA”), challenged as unconstitutional the County’s Secure Medicine Return Regulations establishing an industry-funded stewardship program for the collection and disposal of unwanted household medicines from county residents (see our previous post here).  That lawsuit is on hold for the moment.  According to an updated agreement between the parties, the matter “is stayed until such time as the as the Alameda County plaintiffs exhaust United States Supreme Court review or until the time for seeking such review has lapsed.”

Meanwhile, other state and local governments are pursuing (or are being pursued) to draft legislation and regulations modeled after the Alameda Ordinance.  For example, an Ordinance was recently proposed by the San Francisco Board of Supervisors that’s inspired by the Alameda Ordinance.  Indeed, the “Findings” section of the proposal mentions the Alameda County and King County regulations, as well as the Ninth Circuit’s decision (and a recent rule from the DEA on controlled substance disposal – see our previous post here), as justification for the passage of a San Francisco drug stewardship program.  Other California government authorities – including Sonoma County and Turlock City – are also reportedly considering Alameda-like ordinances, and appear to be taking steps (see here) to mobilize.  Indeed, in late October 2014, one California State Senator sent a letter to every county in the State informing them of the Ninth Circuit’s decision and urging them to adopt programs modeled after Alameda’s Ordinance.

By Kurt R. Karst –    

It’s been many months since we last posted on the issue of so-called “premature notice” (and over a year since we first posted on the issue).  Premature notice is notice – ineffective notice – of a Paragraph IV certification sent to the NDA holder and patent owner prior to FDA’s acceptance of an original ANDA, and is apparently intended to jump-start patent infringement litigation, potentially resulting in quicker ANDA approval actions.  FDA has addressed the issue (disapprovingly) in letter correspondence (here and here), and several courts have found that premature notice is improper, null, void, and without legal effect – see SB Pharmco Puerto Rico, Inc. v. Mutual Pharm. Co., 552 F. Supp. 2d. 500 (E.D. Pa. 2008) (here); Merck & Cie v. Watson Pharms., Inc., C.A. No. 12-161-RGA (D. Del. Sept. 25, 2012) (here); and Otsuka Pharm. Co. v. Par Pharm., Inc., C.A. No. 13-1979 (RGA) (D. Del. Mar. 10, 2014) (here).  Nevertheless, as detailed in a previous post, the practice has continued and spread among companies.  But some recent events in court, as well as some action by FDA with respect to the company some have considered the major proponent of premature notice – Par Pharmaceutical, Inc. (“Par”) – may signal the demise of the disfavored practive. 

On December 23, 2014, the U.S. District Court for the Eastern District of Texas granted in part a Motion for Summary Judgment stemming from a Complaint (later amended) Allergan, Inc. (“Allergan”) filed alleging premature notice concerning generic RESTASIS (cyclosporine ophthalmic emulsion) 0.05%.  Allergan was seeking, among other things, a “Declaratory Judgment of False Paragraph IV Notification” based on notice letter sent regarding an ANDA that was initially submitted to – and that was later the subject of a Refuse-to-Receive action by – FDA. 

After finding that there was specific personal jurisdiction, the District Court delved into the premature notice issue.  Citing to SB Pharmco, the District Court pointed out the similarities between the two cases, noting that in both SB Phamco and this case:

• the defendants submitted an ANDA, followed by an “amendment” to said ANDA;
• concurrently with (SB Phamco) or shortly after (this case) said amendment, the defendants sent the plaintiff a paragraph IV notice letter; 
• the FDA refused to receive said ANDA (this case) or had not received the ANDA at the time that the paragraph IV notice was sent (SB Phamco); 
• and the plaintiffs filed a complaint seeking declaratory judgment that the paragraph IV notices were deficient, or in the alternative seeking relief under 35 U.S.C. § 271(e)(2).

And the Court agreed with the SB Phamco holdings: that the defendants’ Paragraph IV notice was premature and improper under 21 U.S.C. § 355(j)(2)(B)(ii)(I) and 21 C.F.R. § 314.95(b), and that “the term ‘submit’ in § 271(e)(2) clearly means that an ANDA has been received, not merely delivered” (552 F. Supp. 2d at 511).  “To hold otherwise,” wrote Disctirc Court Judge Rodney Gilstrap, “would invite generic manufacturers to submit incomplete or otherwise deficient applications, in order to secure their position as the first-filed generic.  They could then attempt to remedy any deficiencies through an amendment to their premature application, while claiming priority to the original application for purposes of securing exclusive access to the market and other benefits.”

Judge Gilstrap didn’t buy Defendants’ argument that the statutory notice provisions at FDC Act § 505(j)(2)(B)(ii), and, in particular, FDC Act § 505 (j)(2)(B)(ii)(II) concerning ANDA amendments/supplements and the requirement to simultaneously send notice with a Paragraph IV certification, establish that FDA acceptance (i.e., receipt) of an ANDA is irrelevant with respect to compliance with 35 U.S.C. § 271(e)(2).  That patent law provision provides that it is an act of infringement to: “submit . . . an [ANDA or 505(b)(2) application] for a drug claimed in a patent or the use of which is claimed in a patent.”  This patent provision, wrote Judge Gilstrap

protects the property rights of name brand drug manufactures, and stands as a counterbalance to the expedited approval process and “safe harbor” provisions that dramatically decrease the cost of bringing a generic drug to market. . . .  In this context, Defendants’ argument is clearly flawed.  It would essentially eviscerate “the cardinal rule that a statute is to be read as a whole, . . . since the meaning of statutory language, plain or not, depends on context,”  King v. St. Vincent's Hosp., 502 U.S. 215, 221 (1991).

Moreover, noted Judge Gilstrap, citing to a letter FDA sent to Allergan, “FDA has expressly rejected this interpretation of the relevant statutes in the past.”

Reading the statute as a whole, the Court finds the FDA’s interpretation to be persuasive; 21 U.S.C. § 355(j)(2)(B)(ii)(II) clearly permits that the notice be sent concurrently with the amendment only if the amendment is submitted for an ANDA that has already been received for filing by the FDA.

Accordingly, the Court is persuaded that “submission” of an ANDA under 35 U.S.C. § 271(e)(2) requires said ANDA to be received by the FDA.  Mere transmission of an application cannot satisfy the statutory requirements for infringement.  Were transmission alone the test, such a result would unavoidably promote a flood of “hit and run” filings in which glaring deficiencies would be no impediment to gaining the benefits properly reserved for those applicants who now survive the FDA’s careful review and obtain its certification as “received” . . . .  Accordingly, because the FDA has not received Defendants’ ANDA, the Court is persuaded that Defendants’ ANDA cannot trigger infringement under 35 U.S.C. § 271(e)(2), as a matter of law.

Despite this initial holding, however, Judge Gilstrap did decine to declare, as Allergan requested, whether or not the premature notice triggered the statutory 45-day period for Allergan to timely file a patent infringement lawsuit, and whether or not a 30-month litigation stay would begin only with a lawsuit based on a valid Paragraph IV notice.  Citing to a 2001 decision from the U.S. Court of Appeals for the Federal Circuit in Minnesota Mfg. and Mining v. Barr Labs., 289 F.3d 775 (Fed. Cir. 2001), in which that Court clarified, in the context of a dispute about compliance with the Paragraph IV certification requirements of the statute, that there is no private right of action under the Hatch-Waxman Amendments, Judge Gilstrap wrote that

at least with respect to Allergan’s request for an order declaring that Defendants’ paragraph IV notices would not trigger the [45]-day countdown and/or the 30-month stay provided for in § 355(j)(5)(B)(iii)[,] [s]uch an order would go too far, effectively constituting a mandate that compells the FDA to take specific action with respect to Defendants’ ANDA.

But that District Court decision is not the end of our story for today; it’s only part of our offering. . . . 

Next, we turn to ongoing litigation in the U.S. District Court for the District of Delaware concerning a premature notice from Par with respect to that company’s ANDA for a generic version of Reckitt Benckiser Pharmaceuticals, Inc.’s (“RB’s”) SUBOXONE (buprenorphine and naloxone) Sublingual Film.  We’ve been following this case for a while.  Given a convergence of events – i.e., the RESTASIS premature notice decision and some recent filings in the SUBXONE premature notice case – it’s the perfect time to blog about the SUBOXONE case, even though there’s not yet a court decision on the pending issue of the potential consequences of premature notice.

We’ll spare you all of the details (you’re welcome), but suffice it to say that the litigation is premised on a fact pattern similar to that encountered in other premature notice cases.   Par filed a premature notice that RB challenged.  Last April, RB filed a Motion to Dismiss the case, which Par opposed (RB’s Reply Brief is available here).  In a May 17, 2014 Order, the Delaware District Court granted RB’s Motion to Dismiss.  And in a handwritten footnote, District Court Judge Richard G. Andrews said the following, referring to two other cases involving ANDAs for generic SUBOXONE Sublingual Film, including Par’s ANDA: “the Court will issue a separate order in regard to scheduling.”

That scheduling Order was handed down on May 28, 2014 and includes an interesting footnote concerning how the case should be scheduled in light of RB’s argument that Par “should not benefit from wrongdoing in triggering the litigation before the statutory requirements were met.”  Judge Andrews commented that “I
expect at some point when I have a better handle on the case, for example, at the Markman hearing, I will entertain a request from Plaintiffs for a later trial and pretrial date for some or all of the issues in No. 14-422 [(i.e., Par’s case)],” and dropped a footnote providing one potential remedy:

For example, if there is going to be a trial on infringement in No. 14-422, I might sever that issue and try it separately.  On the other hand, to the extent the Defendants in both cases have the same invalidity arguments, there is a lot to be said for trying them together.  Possibly, we might try all issues at the same time, and I would issue the No. 13-1674 opinion separately and before the No. 14-422 opinion.  I am sure the parties can come up with some other suggestions for how to avoid rewarding the 14-422 Defendants for their dubious conduct while at the same time minimizing the extra work that might otherwise be required of the Court and the Plaintiffs.

Fast-forward several months to the December 3, 2014 Markman hearing in the action.  At the hearing, RB reminded Judge Andrews of his invitation for RB to request a later trial and pretrial date vis-à-vis Par’s case.  In a subsequent letter to the court, Par laid out its reasons for Par’s case to remain consolidated with other Paragraph IV defendants:

Par’s actions in sending its first Notice Letter to Plaintiffs were done based on a good faith belief that it was required to do so under statute.  Additionally, Par has not gained any unfair advantage, nor have Plaintiffs . . . been prejudiced by Par’s consolidation.  ANDA cases filed on similar schedules . . . are routinely consolidated and tried together, and accordingly doing so here would not cause prejudice to any party. 

With respect to Par’s “good faith belief,” the company further stated in its letter that:

Par believed that the express language of the Hatch-Waxman statute required it to send a Notice Letter with its ANDA amendment.  21 U.S.C. § 355(j)(2)(B)(ii).  Par also understood that failure to send notice upon amendment had been held to disqualify an ANDA applicant from first-filer status.  Purepac Pharm. Co. v. Thompson, 354 F.3d 877, 888 (D.C. Cir. 2004).  Par has since reached agreement with the Agency on how to proceed for future products, and therefore Par does not expect that this circumstance will be repeated again. [(Emphasis added)] 

A week later, RB shot back in its own letter to the court: 

The simple fact is that if Par had followed the rules under the Hatch-Waxman statute, Par would not be allowed to reach a potential determination of its case until many months later than under the presently consolidated schedule.  The only reason Par, which has a proposed, non-FDA approved, not yet marketed product, is currently able to litigate any issues of infringement or validity of Plaintiffs’ patents is because of the procedures provided by the Hatch-Waxman regime, which represents a careful, negotiated balance between the interests of brand-name pharmaceutical innovators and the interests of would-be generic competitors.  That balance includes the timing of potential judicial determinations of the issues of validity and infringement.  There is no justification for allowing Par to leapfrog the Hatch-Waxman sequence to schedule a non-entitled, premature trial date, particularly, in the present situation, in regard to infringement, or to otherwise gain any potential and undue strategic advantage by having improperly “cut the line” on the way to the courthouse.

Judge Andrews has not yet decided how to resolve the issue; however, we’ll be watching closely to see if there is any court-imposed sanction for a premature Paragraph IV notice. 

We were particularly intrigued by one sentence in Par’s December 2014 letter to the court (emphasized above): “Par has since reached agreement with the Agency on how to proceed for future products, and therefore Par does not expect that this circumstance will be repeated again.”  Though we don’t know for sure, we suspect that the “agreement” reached with FDA is reflected in a March 11, 2014 letter from FDA to Par.  The letter was issued after the Agency requested a meeting with Par representatives “to discuss Par’s practice of sending premature notifications of paragraph IV certifications in violation of [FDC Act §] 505(j)(2)(B), and 21 C.F.R. 314.95(b).”  That meeting was held on January 24, 2014.

According to FDA:

At the January 24 meeting, Par informed the Agency that it intended to continue its violative practice.  Par’s explanation for its practice was that Par’s premature notification was based on a “literal” reading of section 505(j)(2)(B)(ii)(II) of the FD&C Act and 21 CFR 314.95(d), and was done “in an abundance of caution” in light of Purepac Pharmaceutical Corporation v. Thompson, 354 F.3d 877 (D.C.Cir. 2004).  Par acknowledged that its notice did not comply with 21 CFR 314.95(c) but did not explain why this provision did not apply to Par.  In response to questioning by the agency, Par also acknowledged that it was aware of the court’s decision in SB Pharmco Puerto Rico, Inc. v. Mutual Pharmaceutical Co., 552 F. Supp. 2d 500 (E.D.Pa.), appeal dismissed, 2008 App. LEXIS 27672 (Fed. Cir. 2008).

According to the FDA letter, “Par offered to include in its paragraph IV notifications language that Par believes could help reduce confusion, and distributed an already prepared draft of such language.”  At the time, FDA deferred specific comment on the language provided.  Subsequently, Par shared with FDA revised language.  FDA states in the Agency’s March 11, 2014 letter that:

In implementing 21 U.S.C. 355(j)(2)(B), the regulations at 21 CFR 314.95(c) state what must be included in a notice of certification.  This regulation at 21 CFR 314.95(c)(1) sets forth the requirement that the notice include “a statement that FDA has received an [ANDA] submitted by the applicant.”  FDA’s regulation at 21 CFR 314.101(b)(1) defines the term “received.”  It states that “An [ANDA] will be reviewed after it is submitted to determine whether the [ANDA] may be received. Receipt of an [ANDA] means that FDA has made a threshold determination that the [ANDA] is sufficiently complete to permit a substantive review.”  As FDA has conveyed to Par both in writing and at the January 24 meeting, and regardless of the additional language Par chooses to include, a notice provided before an ANDA is received for filing cannot comply with this regulatory requirement and therefore is invalid on its face.  This regulation does not, however, proscribe inclusion of any additional information or statements.  Indeed, the regulation plainly states that the notice “shall include, but not be limited to” the required information.  The agency, therefore, has no objections to the inclusion of the language above.  We do note, however, that FDA does not agree that the first sentence of your proposed additional language is true, complete, or accurate in light of our reading of the statute and regulations as a whole and the court’s finding in SB Pharmco.

Unfortunately, the language offered by Par is redacted from FDA’s letter; however, we’re pretty sure an NDA holder or patent owner who has recently received a (premature) notice letter from Par can easily identify it.

By Kurt R. Karst –      

In what is, to our knowledge, a first-of-its-kind written decision, Judge Esther Salas of the U.S. District Court for the District of New Jersey issued an Oral Opinion and Order on December 22, 2014 granting without prejudice in part and denying in part a Motion to Dismiss filed by Celgene Corporation (“Celgene”) in litigation brought by Mylan Pharmaceuticals Inc. (“Mylan”) alleging that Celgene violated federal and state antitrust laws by preventing generic competition for two of Celgene’s drug products: THALOMID (thalidomide) Capsules (NDA 020785) and REVLIMID (lenalidomide) Capsules (NDA 021880).  (Copies of the Opposition and Reply Briefs in the case are available here and here.)  

As we previously reported, Mylan, in its April 2014 Complaint, is seeking preliminary and permanent mandatory injunctive relief to compel Celgene to sell Mylan sufficient quantities of THALOMID and REVLIMID at market prices for purposes of bioequivalence testing and ANDA submission, and compensatory damages for Mylan’s lost sales of generic versions of both drugs (and profits on those sales) determined to be caused by the delay in Mylan’s ability to submit ANDAs to FDA.  Both THALOMID and REVLIMID are the subject of Elements To Assure Safe Use (“ETASU”) Risk Evaluation and Mitigation Strategies (“REMS”) – here and here – providing for restricted distribution of the products because of safety concerns.  According to Mylan, “Celgene . . . has used REMS as a pretext to prevent Mylan from acquiring the necessary samples to conduct bioequivalence studies, even after the FDA determined that Mylan’s safety protocols were acceptable to conduct those studies.” 

In her Oral Opinion, Judge Salas denied Celgene’s Motion to Dismiss with respect to Mylan’s claims alleging violations of Section 2 of the Sherman Act (Monopolization, Attempted Monopolization and Conspiracy to Monopolize, and Denial of an Essential Facility or Resource Necessary to Compete), Section 56:9-4 of the New Jersey Antitrust Act, and New Jersey Common Law (Unfair Competition and Tortious Interference with an Economic Advantage).  Judge Salas, however, also dismissed Mylan’s allegations under Section 1 of the Sherman Act (Contract, Combination or Conspiracy in Restraint of Trade in that “Celgene devised an anticompetitive scheme to prevent Mylan and others from filing ANDAs for generic versions of Thalomid and Revlimid, and that Celgene entered into unlawful agreements with wholesale distributors and pharmacies to unduly restrain trade”) and Section 56:9-3 of the New Jersey Antitrust Act.

Under Sherman Act § 2, a plaintiff must plead two elements: (1) monopolization; and (2) under Verizon Communs., Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004), “the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.”  Celgene and Mylan disputed the second element.  Celegene argued that “its conduct is not exclusionary as a matter of law because Section 2 does not impose an affirmative duty to deal with competitors except under limited circumstances, which it argues are inapplicable here,” while Mylan took the position that “Celgene’s conduct falls within the scope of cases where a duty to deal applies.”

In discussing the relevant refusal to deal law under Sherman Act § 2, Judge Salas found that a “prior course of dealing” between Celgene and Mylan was not strictly required under U.S. Supreme Court, Third Circuit, or district court precedent.  Rather, the District Court found that a prior course of dealing was simply an indicator or proxy for the larger inquiry of whether Celgene’s refusal to deal was legitimate or motivated by anticompetitive gain.  According to Judge Salas:

[T]he Supreme Court reasoned [in Trinko] that “prior course of dealing” was relevant to the § 2 inquiry insofar as it served as a proxy for the larger inquiry of whether the defendant’s conduct was anticompetitive. . . .  The Third Circuit cases to consider the scope of the “no duty to deal” do not appear to adopt a strict requirement that a party must plead “prior course of dealing” for its claims to proceed. . . .  [T]he cases in our Circuit that have considered the scope of the affirmative duty to deal suggest that a “prior course of dealing” is relevant but not dispositive in determining whether such a duty applies. . . .  Likewise, the district court cases in our Circuit do not appear to require pleading a prior course of dealing.

Judge Salas also rejected, as a matter of law, arguments raised by Celgene that the relevant product market, for Sherman Act § 2 monopolization purposes, could not be limited to a single drug and its generic equivalents, and that Celgene’s patents on THALOMID and REVLIMID precluded a finding of antitrust injury. 

The Mylan litigation is being watched closely by many in the pharmaceutical industry and in the government, because it could result in the first merits decision on the topic.  Previous antitrust cases involving restricted distribution products – Actelion Pharm. Ltd. v. Apotex, Inc., Case No. 12-5743 (D.N.J.) (see our previous posts here, here, and here) and Lannett Co., Inc. v. Celgene Corp., Case No. 8-3920 (E.D. Pa.) (see our previous post here) – although allowed proceed after motions to dismiss were denied based on facts similar to those before Judge Salas, were ultimately dismissed after the parties entered into settlement agreements.  The Federal Trade Commission filed an amicus brief in the Mylan case taking the position that a brand-name company’s refusal to sell samples to a an ANDA applicant can constitute exclusionary conduct under established U.S. Supreme Court precedent, that a brand-name company’s distribution agreements are not immune from antitrust scrutiny, and that a brand-name company’s patents alone do not establish a lack of antitrust injury.  And, as we previously reported, Congress has been considering legislation – H.R. 5657, the Fair Access for Safe and Timely Generics Act of 2014 – to amend the FDC Act to address the availability of products subject to a restricted distribution program.  Moreover, in December, FDA issued a draft guidance document to formalize the Agency’s long-standing process for prospective ANDA applicants to obtain a letter from the Agency stating FDA’s determination that the Agency will not consider it a violation of a REMS for the RLD sponsor to provide a sufficient quantity of a drug for bioequivalence testing purposes. 

By Kurt R. Karst –

FDA’s Sixth Annual Report to Congress, required by FDC Act § 505(q)(3), on the Agency’s experience during Fiscal Year 2013 (“FY 2013”) with citizen petitions subject to FDC Act § 505(q), though largely repetitive of reports filed for previous fiscal years (see our previous posts here, here, here, here, and here), includes more forceful statements about the effects of the statutory provision than we have seen in the past from the Agency. The report also includes updated figures and statistics on the numbers and outcomes of petitions FDA has received and acted on.

FDC Act § 505(q) was added to the law by the 2007 FDA Amendments Act (“FDAAA”) and is intended to prevent the citizen petition process from being used to delay approval of pending ANDAs and 505(b)(2) applications. The law was amended by Section 301 of Pub. L. No. 110-316 (2008), and again by Section 1135 of the 2012 FDA Safety and Innovation Act (“FDASIA”).  Among other things, FDASIA changed the original 180-day response deadline to 150 days, and made the law applicable to citizen petitions concerning biosimilar applications submitted to FDA pursuant to PHS Act § 351(k). In June 2011, FDA issued final guidance on FDC Act § 505(q). That guidance was revised in November 2014 to account for changes made to the law by FDASIA.  In January 2012, FDA issued proposed regulations to amend the Agency’s citizen petition regulations to implement changes made to the law by Section 505(q).

Under FDC Act § 505(q), FDA shall not delay approval of a pending ANDA, 505(b)(2) application, or 351(k) biosimilar application as a result of a citizen petition submitted to the Agency pursuant to 21 C.F.R. § 10.30 (citizen petition) or § 10.35 (petition for stay of action), unless FDA “determines, upon reviewing the petition, that a delay is necessary to protect the public health.” FDA is required to “take final agency action on a petition not later than 150 days after the date on which the petition is submitted.” FDA may not extend the 150-day period “for any reason,” including consent of the petitioner.

Although the statute provides that FDA may summarily deny a petition submitted with the primary purpose of delaying ANDA, 505(b)(2) application, or 351(k) biosimilar approval, the Agency has never done so. Instead, FDA seems to have resorted to a form of public shaming when the Agency suspects delay tactics (see our previous post here).  But outright denial of a 505(q) petition is clearly something that’s been on FDA’s mind. In the latest Report to Congress, FDA comments:

505(q) contains a provision that permits FDA to summarily deny a petition at any point If FDA finds that it was submitted with the primary purpose of delaying the approval of an ANDA or 505(b)(2) application and the petition does not “on its face” raise valid scientific or regulatory issues (FD&C Act, section 505(q)(l )(E)). As FDA previously noted in its report to Congress entitled “Encouraging Early Submission of Citizen Petitions and Petitions for Stay of Agency Action,” dated February 2009, we believe that the statutory language requires that both preconditions be present, and we believe this statutory standard would be extremely difficult to meet. To date, FDA has never applied this provision to summarily deny a petition, despite the fact that, in FDA’s estimation, many 505(q) petitions do not in fact raise persuasive scientific or regulatory issues when those issues have been reviewed by FDA (as previously noted, approximately two-thirds of these petitions are denied in full). Accordingly, it is FDA’s view that this provision has neither curbed the filing of frivolous petitions submitted with the primary purpose ofdelay, nor has it permitted FDA to dispose of such petitions without expending substantial amounts of resources.

FDC Act § 505(q)(3) requires that each annual report to Congress specify: “(A) the number of applications that were approved during the preceding 12-month period; (B) the number of such applications whose effective dates were delayed by petitions referred to in paragraph (1) during such period; (C) the number of days by which such applications were so delayed; and (D) the number of such petitions that were submitted during such period.” FDA says in its Sixth Annual Report that:

Between September 27, 2007, and September 30, 2013, FDA determined that a delay in approving an ANDA was necessary to protect the public health in the case of seven ANDAs with related 505(q) petitions. FDA has not delayed approval of any 505(b)(2) applications or biosimilar biological product applications based on 505(q) petitions.

During the FY 2013 reporting period, the Agency approved 37 applications submitted under section 505(b)(2), 440 ANDAs, and no biosimilar biological product applications. No approvals for any 505(b)(2) or biosimilar biological product applications were delayed because of the filing of a 505(q) petition in this reporting period. Two ANDA approvals were delayed in this reporting period because of pending 505(q) petitions.

The two ANDA approvals delayed in FY 2013 were delayed by 25 days because “FDA was concerned that if it approved the ANDAs before resolving the issues raised in the petition and later concluded that one or more ofthe arguments against approval were meritorious, then the presence on the market of drug products that did not meet the requirements for approval could negatively affect public health.” Although FDA does not identify by drug name or ANDA number the particular approvals delayed, they are clearly ANDAs affected by FDA’s consideration of a March 2013 citizen petition (Docket No. FDA-2013-P-0247) concerning Zoledronic Acid Injection. FDA denied that petition in August 2013 and specifically noted that the petition caused a 25-day delay in ANDA approvals.

As to the number of 505(q) citizen petitions submitted in FY 2013, the Report to Congress says that 15 of the 93 citizen petitions (or 16%) handled by the Center for Drug Evaluation and Research (excluding ANDA suitability petitions and petitions that raise only OTC monograph issues) were 505(q) petitions. “During FY 2008 through FY 2013, FDA received a total of 131 petitions subject to section 505(q). Over this 6-year period, FDA responded to all but six of the 505(q) petitions within the statutory time frame that was applicable during that period” (i.e., 180 days or 150 days). The report includes helpful tables showing the percentage of 505(q) petitions received during Fiscal Years 2008-2013, and the outcomes for the 124 petitions that have been resolved under FDC Act § 505(q) as of September 30, 2013. Our friends over at RAPS have also put together some tables based on the data reported by FDA (see here).

In previous Reports to Congress, FDA has repeatedly expressed frustration with how responding to 505(q) petitions interferes with other Agency work.  FDA’s Sixth Annual Report is no exception. If anything, FDA is expressing more frustration as the years go by:

The Agency is concerned that section 505(q) is not discouraging the submission of petitions that are intended primarily to delay the approval ofcompeting drug products and that do not raise valid scientific issues. The statute requires FDA to prioritize these petitions above other matters, such as safety petitions, that do raise important public health concerns. FDA also believes that innovator companies are, in some cases, implementing strategies to file serial 505(q) petitions and petitions for reconsideration in an effort to delay approval ofANDAs or 505(b)(2) applications for competing drugs. In addition, with the shortened timeframe under FDASIA, FDA remains concerned about the resources required to respond to 505(q) petitions within the statutory deadline at the expense of completing the other work of the Agency.

Whether FDA’s growing frustration will boil over into something more – perhaps a change in the law – remains to be seen.