News coverage of the citizen petition submitted by Dr. David Kessler has been somewhat breathless, so it was nice to read the document first hand when it was posted yesterday in the docket at regulations.gov – and you should do the same. Spoiler alert! In essence, the petition asks FDA to revoke the generally recognized as safe (GRAS) status of a number of substances categorized as “processed refined carbohydrates” because there no longer exists a consensus among qualified experts that current uses of those substances are safe within the meaning of section 409 of the FD&C Act (i.e., that there exists a reasonable certainty of no harm). Whether those substances could continue to be used in food in the long term would depend on the success of food additive petitions that industry would be required to submit to FDA. The Kessler petition thus presses FDA to follow the path trod by the agency when it revoked the GRAS status of partially hydrogenated oils ten years ago, thereby prompting  submission of a food additive petition that was subsequently denied. (Has it really been 10 years?)

The Kessler petition paints a dire picture of the health of the U.S. population, and draws on several lines of scientific argument to conclude that ultra-processed foods (UPFs) and “ultra-processed food technology” encourage food consumption patterns that contribute to a host of diet-related diseases. Rather than struggle over precisely defining UPFs and targeting their consumption directly, the petition argues in favor of targeting processed refined carbohydrates, which are “central to the widespread availability of” UPFs. To the extent that processed refined carbohydrates were previously determined to be GRAS, the petition argues that circumstances have changed such that there can no longer exist a consensus of safety under current conditions of use. The petition argues that those substances “act metabolically in a similar fashion to ‘added sugars’ and small chain saccharides.” Thus, they are “conducive to rapid eating, rapid digestion, fast gastrointestinal transit time, and rapid absorption,” and “stimulate blood insulin and glucose,” thereby resulting in several adverse health effects. Further, the petition argues that “metabolic damage can begin very early in life… as early as the first days of life.” Perhaps most strikingly, the petition argues that any evaluation of safety must take into consideration the already poor metabolic health of the U.S. population.

Some readers might recall that Dr. Kessler was Commissioner of FDA when the agency sought to regulate cigarettes under its then-existing statutory authority, in an effort that narrowly failed to persuade the Supreme Court in FDA v. Brown & Williamson Tobacco Corp. Thus, it comes as little surprise when the petition argues that, “[j]ust as nicotine was central to FDA regulation of tobacco products, processed refined carbohydrates used in industrial food processing are a key component of [UPFs] that the agency needs to address in order to protect the public health from the health risks of these products.”

To give credit where credit is due, this is not the first citizen petition to seek revocation of the GRAS status of substances widely used in processed foods. However, this petition considerably ups the ante by broadening the list of targets, folding in more recent evidence of alleged harm, and playing to a potentially sympathetic regulator by indirectly targeting UPFs. FDA now has 180 days to respond, but given the complexity of the petition, it would be surprising if that response says much beyond “we’re still reviewing your petition.” If a response is significantly delayed, then the petitioner will have to decide whether to sue the agency to compel a response. Here again, the prior fight over partially hydrogenated oils offers a potentially useful precedent.

On August 4, 2025, FDA hosted a public meeting related to the reauthorization of the Medical Device User Fee Act for fiscal years 2028 through 2032 (MDUFA VI).  The FDA invited public comment on the following questions and most speakers remarks provided perspectives related to these question (90 FR 24633).

• What is your assessment of the overall performance of MDUFA V thus far?
• What current features of MDUFA should be reduced or discontinued to ensure the continued efficiency and effectiveness of the medical device review process?
• What new features should FDA consider adding to the program to enhance the efficiency and effectiveness of the medical devices review process?
• What changes, if any, could be made to the current fee structures and amounts to better advance the goals of the agreement, including facilitating product development and timely access for consumers?

The meeting kicked off with remarks from FDA Commissioner Dr. Martin Makary who commented on the history of medical device user fees, improvements to FDA’s reviews since the first MDUFA was established, goals for modernization, use of common sense, and to make interactions with the agency a user-friendly process.  Next, CDRH Director Dr. Michelle Tarver spoke on the CDRH vision for patients in the US to have access to safe and effective medical devices of public health importance first in the world.  Dr. Tarver noted that the device center is strong and has met or exceeded review timelines established in MDUFA V.  Other topics touched on by Dr. Tarver include: the record use of pre-subs and proposal to further streamline the process, such as by submission type and evidence phase; use of real world evidence and the need for continued collaboration across the total product life cycle; digital health and the agency’s support of responsible innovation; expansion of the use and scope of the Accreditation Scheme for Conformity Assessment (ASCA); strengthening patient-centered development; and providing expanded dashboards with new metrics to improve visibility of the agency’s progress against the MDUFA V performance goals.  Dr. Tarver wrapped up stating that while CDRH has made progress in ensuring it has top talent, that they will need critical resources under MDUFA VI, and that CDRH staff will require leading edge scientific training.  This comment comes with some irony given the mass layoffs across FDA earlier this year.

The remainder of the meeting presented perspectives external to FDA, including panels from:  MedTech industry; patients and consumers; scientific, academic, and health care professionals; and the public.

Remarks from the MedTech panel focused on fine tuning the current FDA processes and highlighted the value of the pre-sub process and the importance of transparency and understanding of where user fees are spent.   This panel also noted that while not opposed to FDA’s use of medical device user fees to improve post-market activities, the program was intended for pre-market improvements.  Finally, this panel emphasized that user fees provide resources to FDA to support timeliness and predictability and are not and have never been a guarantee of approval.

Patient and consumer groups requested that patient advocacy groups be included as more formal partners in the MDUFA negotiations and also highlighted the need for MDUFA goals related to the quality of FDA reviews in addition to timeliness of reviews.  In contrast to the view of the MedTech panel, this panel recommended user fees support improvements to post-market initiatives within the Agency, noting that there have been higher numbers of adverse events in the last 10 years and questioning whether MDUFA pressure for premarket review speed has had an unintentional consequence of more adverse events.  One speaker on this panel noted that device user fees are a fraction of drug user fees, even for the biggest companies and commented that they believe user fees, especially for 510(k)s, are too low.

The scientific, academic, and healthcare professional panel noted that collaboration with FDA and developers is essential, especially with new technologies such as AI-enabled devices.  This panel also highlighted the need to ensure regulatory frameworks are inclusive of all populations, especially children.

The presenters from the public brought a variety of views.  Some felt FDA should be fully funded through appropriations, expressed concern with recent FDA reductions in force and recommended regulation of laboratory developed tests be considered as part of the MDUFA bill, such as the previous VALID act, which we have blogged on previously (link).  Others recommended user fees be increased, the program be expanded to provide robust postmarket safety information to the public, that MDUFA include a pilot program for use of digital twins and to reduce clinical trial requirements with in silico testing, and to make MDUFA performance goals more patient centric with a focus on quality and not just speed of review.

FDA’s Total Product Lifecycle Advisory Program (TAP) pilot was discussed by many over the course of the meeting.  Dr. Tarver noted that TAP is designed to expedite patient access by making the path to market more efficient and predictable and that 100% of quantitative performance metrics had been met in the pilot with 93 devices currently enrolled.  The MedTech panel commented that while the goals of TAP are laudable, that they fall outside of FDA’s purview and recommended revisiting the Breakthrough Program to incorporate the elements of TAP that are in FDA’s control.  Conversely, the patient and consumer panel as well as the scientific, academic, and health care professionals panel praised TAP for the integrated approach and bringing the patient and payor voices to the table earlier in the development process, and recommended the program be maintained and grown.

Across all presenters, the common goal of timely patient access to safe and effective devices was reiterated.  Public input on the user fee reauthorization can be submitted at https://www.regulations.gov/, Docket No. FDA-2025-N-1157 until September 4, 2025.

Hyman, Phelps & McNamara, P.C.’s John Gilbert will be speaking at the Demand Forecasting for Controlled Substances Hybrid Public Meeting sponsored by the Reagan-Udall Foundation for the FDA, Washington, DC. on August 27, 2025. The meeting is from 2-5pm (eastern) and includes both in-person and virtual attendance. The conference will include discussions on the factors that are considered when estimating the medical, scientific, and reserve stock needs for Schedule I and Schedule II substances, such as opioids and stimulants. These estimates along with other factors are used by DEA to establish annual aggregate and individual manufacturing quotas.

On August 6, 2025, the Office of Information and Regulatory Affairs (OIRA) published a notice that FDA has rescinded the Laboratory Developed Test (LDT) Final Rule that was vacated earlier this year by the U.S. District Court for the Eastern District of Texas. The rescission is pending regulatory review by OIRA pursuant to EO 12866.

Although the OIRA notice provides few details on the nature of the rescission, it will almost certainly entail the removal of the nine words the LDT Final Rule added to the definition of “in vitro diagnostic products” in 21 C.F.R. § 809.3, which stated that IVD products are FDA-regulated devices “including when the manufacturer of these products is a laboratory.”

Because the government chose not to appeal the decision vacating the LDT Final Rule, the rescission is largely a formality, as the added regulatory language is already a dead letter. FDA could be trying to claim credit for rescinding the rule as part of the general deregulatory push of this administration (see e.g., EO 14192, which requires that Federal agencies eliminate 10 regulations, guidance or similar materials for each new regulation). Whatever the reason, rescinding the LDT Final Rule further punctuates the end of this chapter in FDA’s long sought effort to claim jurisdiction over LDTs.

Hyman, Phelps & McNamara, P.C. (HPM) is excited to announce a program that we are co-hosting with Freshfields geared toward early-stage biotech and medtech companies.

This program will be a half-day, in-person event at Freshfields’ Silicon Valley office on Wednesday September 10, 2025, and will feature a number of panels and speakers.  HPM’s Michelle Butler and Allyson Mullen will be representing the drug and device perspectives, respectively.

Agenda (final titles and speakers to come):

• 1:00 – 1:30 PM: Registration
• 1:30 – 2:30 PM: Regulatory matters in M&A and licensing transactions
• 2:30 – 3:30 PM: Moderated CFO panel
• 3:30 – 3:45 PM: Break
• 3:45 – 4:45 PM: Moderated CBO panel
• 4:45 – 5:15 PM: Lightning round of additional regulatory/data topics
• 5:15 – 6:15 PM: Reception

Event Details:

Wednesday, September 10, 2025
1:00 – 6:15 PM PT

Freshfields’ Silicon Valley office
855 Main Street Redwood City, CA 94063

Please click here to register your interest in attending.

Boston was once again the hub for female leadership in life sciences law this summer as attorneys, executives, and policymakers gathered for the 12th Annual American Conference Institute (“ACI”) Women Leaders in Life Sciences Law Summit on July 30–31, 2025. Hosted at the Seaport Hotel, the event brought together top women leaders from across the biotech, pharmaceutical, and medical device industries – including the authors of this blog – to discuss the pressing legal and regulatory issues shaping the sector (agenda).

The agenda featured timely discussions on several topics of interest including: recent Executive Orders and U.S. Department of Justice/Equal Employment Opportunity Commission guidance; new initiatives at the U.S. Food and Drug Administration (FDA), U.S. Department of Health and Human Services (HHS), and the National Institutes of Health (NIH); the use of artificial intelligence (AI) in drug discovery and evolving regulatory frameworks; patent reform and march-in rights; drug pricing under the Inflation Reduction Act; fraud and abuse enforcement trends; and European Union pharmaceutical legislation. One session also explored recent policy shifts and state laws and their impact on reproductive health, and any resulting implications on drug and device manufacturers including the potential for expanded liability. These sessions offered more than just policy updates—they highlighted the growing need for regulatory agility as life sciences companies navigate shifting federal priorities and court rulings. Speakers cautioned being reactionary in an ever-evolving U.S. regulatory atmosphere. Other panelists emphasized the complexity of cross-border compliance, particularly as global markets face diverging regulatory regimes. They also explored the opportunities and challenges of emerging technologies such as AI, stressing the importance of strong, proactive legal frameworks to foster innovation while protecting both patients and data integrity.

As the summit concluded, a key takeaway emerged: women leaders are driving change across every corner of life sciences law—from shaping policy to steering companies through regulatory complexity. The conversations underscored that success in this environment requires not just technical expertise, but adaptability, collaboration, and a willingness to share experiences and lessons learned within the broader legal community.

At Hyman, Phelps & McNamara, we are proud to partner with many clients whose organizations are driven by female leadership who work collaboratively to advance patient-focused solutions in this dynamic and evolving industry. We look forward to seeing how the ideas shared at this year’s summit will continue to inspire and empower women across the life sciences legal landscape.

Late last week, the U.S. District Court for the Northern District of Texas ruled that FDA’s civil monetary penalty (CMP) provision for tobacco products contained at 21 U.S.C. § 333(f)(9) is unconstitutional.  Relying on the Supreme Court’s recent decision in SEC v. Jarkesy, 603 U.S. 109 (2024), the Court held that the CMP provision violates the Seventh Amendment’s right to a jury trial.

By way of background, in Jarkesy, the Supreme Court ruled that the SEC could not use its administrative authority to impose civil penalties for securities fraud through an administrative law judge proceeding on the grounds that these proceedings violate the Seventh Amendment’s right to a jury trial for all suits in common law.  We posted on the Jarkesy decision and predicted that litigants would similarly challenge the FD&C Act’s CMP provisions.  (We’ve also written about Jarkesy’s impact on DEA ALJ proceedings and the proposed Preserve Access to Affordable Generics and Biosimilars Act).

In Wulferic, LLC v. FDA, No. 4:24-cv-1183-O (N.D. Tex. Aug. 1, 2025), Plaintiff Vapor Lab—a business that makes and sells tobacco products—challenged a CMP administrative proceeding brought by FDA seeking a monetary penalty against Vapor Lab for selling e-liquid products that had not been authorized for sale by FDA.  The case was pending before an HHS ALJ, and Vapor Lab argued that the CMP provision for tobacco products was unconstitutional because the administrative proceeding violated its Seventh Amendment right to a jury trial.

The Court agreed, explaining that the Seventh Amendment’s right to a jury trial in suits at common law applies to cases traditionally decided in English law courts, as opposed to cases tried in courts of equity or admiralty.  Id. at 20.  While the Court did not find any “common law analogues” to the FD&C Act’s CMP provision for tobacco products, it noted that the remedy is the “more important” consideration.  Id. (citing Jarkesy, 603 U.S. at 123).  Here, the Court found that the CMP provision’s penalties were a type of remedy that could only be enforced in courts of law, particularly because the penalty was designed to punish and deter, included enhanced penalties for intentional violations, and was not intended to “restore the status quo” by ordering restitution to victims.  Id. at 20-21.  Thus, the Court held that the Seventh Amendment applied and that Vapor Labs had a right to a jury trial unless the public rights exception applied.  Id. at 21.

The public rights exception is a recognized departure from Article III judicial power, acknowledging that Congress may assign certain matters to an agency for decision without a jury consistent with the Seventh Amendment.  Id. at 22.  FDA argued that the public rights exception applied because the FD&C Act serves a “public-health purpose” that has been assigned to the Executive Branch.  Id. at 24-25.  The Court rejected that any such public health exception existed as a public rights exception for the federal government, reasoning instead that “the power to promote public health is a police power retained by the states, through the Tenth Amendment, and has never been a distinctive prerogative of the federal government.”  Id. at 26.

Because it found that no public rights exception existed, the Court declared the CMP provision for tobacco products—and FDA’s proceeding against Vapor Lab—to be unconstitutional.  The Court further enjoined the government to dismiss with prejudice the administrative complaint against Vapor Lab and from adjudicating civil monetary penalties against Vapor Lab in an administrative proceeding.  The Court, however, rejected Vapor Lab’s request for a nationwide injunction.

The Wulferic decision is the first case to find that the FD&C Act’s CMP provision for tobacco products is unconstitutional — but the catch is that it didn’t actually order FDA to stop carrying on as usual with respect to anybody else.  Wulferic threatens to significantly dismantle FDA’s arsenal of actions to enforce compliance with the FD&C Act’s tobacco provisions, and we expect many more similar challenges to follow if FDA stays on its current course.

Indeed, for those keeping tabs, a prior District Court challenge that we reported on was rejected for lack of subject matter jurisdiction, as was one other, Vape Central Grp., LLC v. FDA, No. 1:24-cv-3354-RDM (D.D.C. Feb. 27, 2025).  One more is awaiting a decision from a different judge in the same District, The Vaping Dragon LLC v. FDA, No. 25-cv-81-H (N.D. Tex.)).  And there’s more still: at least two other cases are looking to tee up this same issue in the Circuit Courts of Appeals right now.  In Texas Tobacco Barn, LLC v. HHS, No. 25-60200 (5th Cir.), and D and A Business Investments, LLC v. FDA, No. 25-1074 (D.C. Cir), the petitioners directly challenge FDA’s imposition of $19,000 CMPs under Jarkesy, among other things.

It remains unclear whether FDA will appeal the Wulferic decision under the current administration, and what it will do with its current CMP docket in light of it.  Close eyes will now go to The Vaping Dragon in particular: whether and how that case gets decided in FDA’s appeal window could make a big difference. We will be closing monitoring the fallout from this case and other challenges to FDA’s CMP statutory provisions in this post-Jarkesy world.

Since 2009, the term ultra-processed food (“UPF”) has gained recognition as there have been studies that suggest a relationship between consumption of UPFs and chronic diseases.  The term frequently focuses on processing and composition without consideration of food groups and nutritional composition.  At this time, there is great uncertainty about the explanation for the relationship between consumption of UPFs and adverse health outcomes.  A standardized definition may help shed light on the underlying causes.

In May 2025, the U.S. Food and Drug Administration (“FDA”) published its FY 2026 budget request which included $49 million to be “dedicated to combating the growing risks associated with ultra-processed foods . . . .”

On July 23, 2025, the Agency and the U.S. Department of Agriculture (“USDA”) took the first step towards addressing UPFs by jointly announcing a public request for information (“RFI”).  In the press release, U.S. Health and Human Services (“HHS”) Secretary, Robert F. Kennedy, Jr., asserted that “[u]ltra-processed foods are driving our chronic disease epidemic.”  Secretary Kennedy and his administration believe that establishing a clear federal definition is key to tackling obesity, diabetes, heart disease, cancer, and even neurological disorders.

The RFI is part of a wider effort spearheaded by Secretary Kennedy who has made food reform a central pillar of the Make America Healthy Again (“MAHA”) agenda.

Why a Clear Definition Matters

Currently, there is no single, authoritative, federally codified definition of what an UPF entails in the U.S. market.  The absence of a single clear definition generates inconsistencies in policymaking and consumer guidance and understanding.  For example, the RFI mentions several states that have proposed varying definitions for “ultra-processed” food—such disparate state efforts could lead to a patchwork regulatory scheme and consumer confusion throughout the country.  A uniform definition may:

• Enable consistent public health messaging
• Encourage more focused research
• Support clearer, more informative labeling
• Inform government programs and spending on food
• Provide a foundation for future regulation or standards

What Information is Being Requested?

Many questions need to be answered when considering a definition for UPFs and it remains to be seen whether a definition can be developed without further research.

The RFI lists many questions and requests that comments include explanations and supporting evidence.

Key questions include:

• Is the term “ultra-processed” the most apt terminology?
• What measurable factors (e.g., ingredients, processing techniques) should define an ultra-processed food?
• Should the definition consider the nutritional value of the product?
• How can such definitions be applied systematically across food products?
• What implications might this definition have for nutrition programs and labeling?

Any interested parties should submit comments by September 23, 2025 at 11:59 PM EDT.

One familiar with homeopathy might reasonably think that the practice would have a place in the Make America Healthy Again movement as an alternative to conventional pharmaceutical treatment. But after a recent court decision issued on July 15, 2025, the regulatory path for homeopathic medicine looks murkier than ever.

Homeopathy operates on the principle that “like cures like,” where practitioners use heavily diluted substances intended to cause the symptoms they are meant to treat. For decades, FDA largely ignored this $6 billion industry through a 1988 compliance policy guide (CPG) that essentially created a regulatory “safe harbor” for over-the-counter homeopathic products. Although they were unapproved new drugs, the CPG described the conditions under which FDA would allow these unapproved drugs to be on the market.

In 2015, FDA indicated that it increasingly was concerned about the safety of homeopathic drugs, and it claimed that the existence of the CPG limited its options to take enforcement action. In 2019, the agency withdrew that CPG and issued draft guidance describing its new risk-based enforcement policy to replace the CPG.  In 2022, it finalized this new enforcement guidance for homeopathic drug products.

In an effort to legitimize homeopathic drugs, the Americans for Homeopathic Choice Foundation (AHCF) submitted a petition requesting, among other things, recognition by FDA that homeopathic drugs, properly manufactured and labeled, and evaluated by appropriate standards, do not meet the legal definition of “new drugs,” and therefore were not subject to premarket review other than satisfying the requirements of current or likely inclusion in the HPUS. As we previously reported, FDA denied that petition one day before it issued the 2022 final guidance. As of that one-two punch, homeopathic remedies no longer enjoyed the benefits of FDA’s exercise of enforcement discretion from new drug approvals. As discussed in the 2022 guidance, FDA considers all homeopathic drugs to be new drugs, which can be taken off the market at any time for lack of approval. That said, enforcement actions against these unapproved drugs are generally based on safety considerations.

In 2024, the Alliance for Natural Health USA (ANH) and homeopathic drug distributor Meditrend , challenging the agency’s 2022 denial of the petition and arguing that FDA lacked authority to subject all homeopathic products to costly and lengthy new drug approval requirements. The CARES Act excluded homeopathic products from its reform of the OTC drug review process, and FDA and the homeopathic industry interpreted that absence from two opposing perspectives. FDA read the CARES Act exclusion to mean that Congress wanted to treat homeopathic drugs as unapproved new drugs. In contrast, the plaintiffs read the exclusion as evidence that Congress hoped to ease the path of homeopathic drugs to market.

Additionally, the plaintiffs challenged FDA’s guidance regarding enforcement priorities for (unapproved) homeopathic drugs as arbitrary and capricious.  Specifically, plaintiffs argued that the guidance violated their constitutional due process rights and was based on what the plaintiffs called “unsupported” safety concerns. Plaintiffs also claims that FDA’s concerns about safety of homeopathic drug product were insufficient reason to deny the AHCF petition.

The court dismissed most of plaintiffs’ claims outright. It found that FDA’s 2022 guidance document was not legally enforceable as final agency action and therefore could not be challenged under the Administrative Procedure Act. The court also rejected the constitutional due process claims and the statutory arguments that the plaintiffs raised about the CARES Act, ruling that Congress never intended to exempt homeopathics from standard drug approval requirements.

However, the court held open the question about whether FDA’s safety concerns about homeopathic practice were sufficient to justify the denial of the 2022 petition. It could not make a determination without a full administrative record; the “agency’s safety concerns may well be warranted. But whether they justify increased enforcement is a factual, not legal, determination. Therefore, the Court cannot reach a decision without a full record.”

For FDA, the ruling validates its revised risk based approach regarding homeopathic drugs. Plaintiffs promise to challenge FDA’s “attempt to regulate homeopathic medicines as conventional drugs” to the extent the decision allows, and the survival of the question of whether FDA had sufficient safety concerns to deny the petition keeps the door open for meaningful judicial review of that issue. We will be monitoring further developments.

Earlier this week, we posted on the retirement of DEA Chief Administrative Law Judge Judge John J. Mulrooney, II, and the lack of appointed DEA ALJs to hear DEA cases upon his retirement, effective August 1.  On a related note, HPM wants to take a moment to recognize Chief Judge Mulrooney’s tenure on the bench.  After joining OALJ in 2009, (then) Judge Mulrooney was quickly appointed as the chief judge.  In that position, he oversaw the office’s busy tribunal docket and administrative staff.  Our HPM attorneys had the privilege of appearing before him in many cases and litigated hearings over the last 16 years.  While Chief Judge Mulrooney’s well-known trial standards, fastidiousness to procedure, and expectations for preparedness could put a knot in the stomachs of experienced counsel from all over the country, litigators also knew him for his fairness, his dedication to establishing clear agency precedent, his keen wit from the bench (and in the footnotes), and his commitment to the rule of law.  And as a former law clerk, one of us can attest that there was never a better mentor or advisor who sought the best for his law clerks and who modeled dedicated public service.

Chief Judge Mulrooney’s 42-year career in public service highlights his commitment to public health and safety, spanning positions as a Navy judge advocate, an assistant district attorney, an Assistant U.S. Attorney, a DOJ trial attorney prosecuting terrorism cases, a judge on the Navy-Marine Corps Court of Criminal Appeals, an administrative law judge at the Social Security Administration, and culminating with his appointment at the OALJ where he dedicated the last sixteen years within a branch of DEA dedicated to protecting the public against the harms of diversion and drug abuse.  Thank you for your service, Chief Judge Mulrooney.  Sláinte!

On July 24, 2025, FDA released the Regulatory Accelerator, an initiative to help digital health sponsors bring their technology to market. New developers may want to bookmark this link as the initiative neatly corrals information in one place. For those who have been working in the space, most of the information is familiar.

The Regulatory Accelerator includes:

• Resource Index for Innovators, which compiles tools, engagement opportunities, and guidance throughout all phases of the total product life cycle and identifies those with associated fees,
• Medical Device Software Guidance Navigator, which represents an efficient method for identifying pertinent FDA guidance documents for medical device software development and marketing submissions, and
• Early Orientation Meetings, which are opportunities for sponsors to provide device demonstrations and/or an overview of the marketing submission and respond to questions from the FDA review team.

The Resource Index for Innovators may be of particular value to digital health innovators who are just starting their journey and learning about the different FDA submissions and programs. The index is a nicely organized visual guide identifying the available resources to innovators, all of which are accessible via active hyperlinks. Given that guidance documents and other resources have been removed from FDA’s website without warning (sometimes reinstated and sometimes not), we suggest you download any useful resources now.

While much of the Navigator organizes already existing information into an easy to find format, there was one new piece of information that caught our attention:  the introduction of Early Orientation Meetings. FDA recommends these interactions shortly after a submission has been accepted for review. The meetings are best for novel devices as they are intended to allow sponsors of marketing submissions to provide device demonstrations and/or an overview of the submission. Explanations, especially in the context of digital health products, have increasingly grown more important to demonstrate how the product will work in the intended use environment, and how, if it all, it will affect existing clinical workflows. Demonstration of software products can be a far more effective way to showcase novel features or functions as compared to still screenshots of the user interface that are included in a submission. Explaining early on how the technology works (e.g., how the device functions or achieves its intended use via inputs and outputs) to FDA reduces any gaps in knowledge that may hamper submission review,  and allows FDA to ask questions and receive clarification on any initial sticking points.

Early orientation meetings are appropriate for any traditional 510(k)s, De Novo requests, and PMAs. A sponsor can request an early orientation meeting in the cover letter of their marketing submission. However, as our recent blog post highlighted, sponsors are already experiencing delays scheduling meetings within the paradigm of existing initiatives. It is therefore unclear how FDA will be able to accommodate potentially additional requests for meetings. As FDA states on the website about early orientation meetings, it “will try to accommodate meeting requests, resources permitting.” Sponsors may want to consider their resources and return on value on these interactions if “[t]he FDA review team does not generally provide specific feedback on the submission during the meetings.” As we have opportunities to engage in these meetings in the future, we will report back on what we are seeing, and the extent to which having, or not having an early interaction meeting, has any impact on the ultimate submission review.

FDA announced earlier this month that it had updated its list of artificial intelligence (AI)-enabled medical devices and created new lists for medical devices that incorporate augmented reality or virtual reality and medical devices that incorporate sensor-based digital health technology.  The list for AI-enabled devices had not been updated since September 2024, so its lack of upkeep does not appear related to changes in the FDA workforce earlier this year.

While the information within these lists has always been available through the searchable FDA databases, having the information organized into a single location may be helpful for a number of reasons.  Developers searching for a predicate device may more easily identify devices that use technology similar to their device, or more easily determine that there is not another device with the same intended use and equivalent technological characteristics, which would indicate their device is likely appropriate for a De Novo submission.  Also, given the rapid changes in these types of technology, the information and testing being requested by FDA for review of these digital health technologies may be evolving, and being able to easily find recent submission summaries from across the review divisions may be a useful resource. At a recent conference, we heard from clinicians that it was often difficult for them to find information on the performance of medical device software that incorporates AI, so being able to easily locate devices of interest may especially be helpful for health care professionals to find summary information of the types of testing FDA reviewed and performance of the AI-models.

The lists include the date of FDA’s final decision, submission number, device name, company name, lead review panel (e.g., radiology or cardiovascular), and primary product code.  They provide a search bar to help find specific products and also include options to download the data to a CSV, Excel, or XML file.

We did some analyses of the lists and learned the following.

AI-enabled devices

There are 1,247 AI-enabled devices on the list, with the earliest approvals dating back to 1995.  As you might imagine, in the early years, there were few AI-enabled devices, with a total of 10 AI-enabled devices authorized in the first ten years.  In contrast, 253 AI-enabled devices were authorized in 2024 alone.  There have been 1,195 (96%) AI-enabled devices authorized via 510(k) clearance, 36 (3%) AI-enabled devices authorized via De Novos, and 16 (1%) AI-enabled devices authorized via premarket approval (PMA).

Of the 1,247 AI-enabled devices, 956 (77%) were authorized by the radiology panel and 116 (9%) by the cardiovascular panel.  The number of AI-enabled device submissions across the other review divisions is quite sparse with the neurology, anesthesiology, hematology, and gastroenterology-urology panels authorizing between 1% and 5% of AI-enabled devices, and the remaining panels each authorizing fewer than 1% of AI-enabled device applications.

Augmented reality/virtual reality devices

FDA’s website defines augmented reality as “a real-world augmented experience with overlaying or mixing simulated digital imagery with the real world as seen through a camera or display, such as a smartphone or head-mounted or heads-up display (HUD). Digital imagery may be able to interact with real surroundings (often controlled by users). This is sometimes referred to as mixed or merged reality.” Virtual reality is defined as “a virtual world immersive experience that may require a headset to completely replace a user’s surrounding view with a simulated, immersive, and interactive virtual environment.”

There are 92 augmented reality/virtual reality devices on the list, with the earliest submission cleared in 2015.  The radiology panel also topped review of these device types with 34 devices on the list (37%).  The orthopedic review panel authorized 25 submissions (27%), with neurology coming in third with 17 authorizations (18%).  Cardiovascular, ear, nose, and throat, general and plastic surgery, ophthalmic, and physical medicine review panels have each reviewed a small number of these device types.

Devices that incorporate sensor-based digital health technology

Sensor-based medical devices have been around for many years, but this list focuses on sensor-based digital health technology devices that are non- or minimally invasive, wearable, designed for continuous or spot check monitoring of an individual’s health parameters, and that can be used in non-clinical settings, such as the home.  As such, the list includes technologies authorized beginning in 2015.

There are 215 sensor-based digital health technology devices on the list.  Over half of these submissions (111 or 51%) were reviewed by the cardiovascular review panel.  The neurology, clinical chemistry, and anesthesiology review panels reviewed 18%, 17%, and 12%, respectively, with the ophthalmic and ear, nose, and throat review panels constituting only 1%.

The lists were updated on July 10, 2025, and do not appear to be updated daily as new devices are cleared.  We will watch to see if FDA updates the lists regularly (e.g., monthly when summary documents are added to the 510(k) database), or if it will be another nine months before the next update is made.

FDA notes that the lists may not be comprehensive, as they were generated based on the use of related terms in the summary descriptions of marketing authorization documents or the device’s classification.  FDA notes that it will explore methods to identify and tag medical devices that incorporate these technologies in the future.  Until then, users should be cautious and check other sources if the information being searched for is not found on the list.

Last week, DEA registrants and applicants with pending actions before DEA’s Office of Administrative Law Judges (OALJ) received an order from Chief Administrative Law Judge John J. Mulrooney, II, staying the hearing proceedings in those cases.  In those orders, Chief Judge Mulrooney announced that he was retiring from the bench effective August 1, 2025, and that, in the absence of any other DEA ALJs, all proceedings and hearing dates are postponed indefinitely.

The OALJ, which historically has maintained a heavy yet efficient workflow of complex diversion and drug scheduling cases, had a total of three ALJs in January prior to the change in administration in January 2025.  Since then, the number of ALJs quickly declined, leaving as of this summer Chief Judge Mulrooney as the sole tribunal overseeing a busy docket that typically requires multiple ALJs.

As a reminder, the OALJ is responsible for not only presiding over orders to show cause against DEA registrants, but also actions related to DEA decisions on imports, exports, drug scheduling, and issuing quotas.  Where does this leave DEA and all of the DEA registrants with pending or contemplated administrative actions?  It’s a bit too early to tell, but it is unlikely that the pending show cause matters will be resolved anytime soon; and, although less frequent, it creates a void for registrants who would want to challenge the other types of decisions identified above.  Under the Controlled Substances Act and DEA’s implementing regulations, proceedings to deny, revoke, or suspend a DEA registration must be conducted pursuant to the hearing procedures delineated in the Administrative Procedure Act as set forth in 5 U.S.C. §§ 551-559.  See 21 U.S.C. 824(c)(4); 21 C.F.R. § 1316.41.  And DEA’s implementing regulations require that a “presiding officer,” defined as an administrative law judge qualified and appointed as provided in 5 U.S.C. § 556, must conduct administrative enforcement hearings.  21 C.F.R. §§ 1316.42(f); 1316.52.

DEA must either (1) hire and appoint new ALJs to fill the vacant bench, or (2) appoint ALJs from other federal agencies to hear these cases.  But both options take time, and we believe that litigants facing orders to show cause or immediate suspension orders (ISOs) may not obtain relief for a period of time.  This, of course, can impact the due process rights of the parties, particularly recipients of an ISO and applicants for new DEA registrations which have been denied.  Individuals or entities facing pending administrative actions with the DEA should consider and evaluate with experienced counsel the impact that an “indefinite” stay may have on their cases as well as potential recourse.

FDA recently released a draft guidance regarding the transfer or sale of a 510(k) clearance. When a 510(k) for a device is sold or transferred from one entity to another, the new 510(k) holder must list the device with the FDA.  If the device has not been significantly changed or modified, the new 510(k) holder is required to provide the original 510(k) number when creating their device listing.

FDA notes that the sale or transfer of a 510(k) may involve changes to labeling, such as the name of the place of business and/or the device brand and model name, which likely requires a new unique device identifier (UDI) and as such will also require an update submission to FDA’s Global Unique Device Identification Database (GUDID).  Failure to register, list, or update GUDID information may render the device either adulterated, misbranded, or both. FDA has received requests from new 510(k) holders requesting that FDA update the information (e.g., establishment registration and device listings); however, this is the responsibility of the new 510(k) holder.  While it is true the new 510(k) holder can electronically update the device listing and establishment registration, unfortunately, the 510(k) database does not get updated.  This is unfortunate given that Sponsors typically search the database by applicant name or device name when searching for potential predicate devices. It would be an improvement if there was a way to update the 510(k) database with the new 510(k) holder name and new device name, or at least a way to search the registration and listing database by the 510(k) number.

While FDA’s guidance does not address considerations beyond transfer of a 510(k), there are other items that the purchaser should be aware of when acquiring a 510(k).  For example, the purchaser should ensure that, as part of the transaction, they receive a complete copy of the 510(k), including all correspondence to and from FDA regarding the submission.  If the purchaser fails to do so, the only other way to obtain the 510(k) would be through a Freedom of Information Act (FOIA) request, which can take a significant amount of time (especially at the current FDA, which has been hit hard with cuts to FOIA staff).  In addition, Sponsors should also obtain copies of all prior “Letters to File” documenting the prior 510(k) holder’s analysis of changes implemented since receiving clearance of the 510(k) being transferred or sold.

Finally, because FDA believes there can only be one 510(k) holder for a device at a time, the 510(k) purchaser should ensure there are appropriate representation and warranties in the acquisition documents establishing that the purchaser is the sole owner/holder of the 510(k).

Interested parties can submit comments regarding the draft guidance until August 4, 2025.

On July 14, 2025, the U.S. Food and Drug Administration (FDA) approved Gardenia Blue, a plant-based color additive, while simultaneously making clear to industry that the Agency encourages food manufacturers to accelerate their phasing out of the use of the synthetic dye FD&C Red No. 3 in food prior to the previously announced 2027 deadline.

This dual action underscores FDA’s continued alignment with and focus on the Make America Healthy Again (MAHA) initiative, which focuses on, among other things, the removal of petroleum-based synthetic dyes from foods.

“Natural Colors” In, Artificial Dyes Out

FDA has long claimed that there is no such thing as a natural color, as any color additive is artificial.  Any color substance, no matter if it is nature-derived or petroleum-based, must be approved by FDA via a color additive petition (CAP).  As we reported previously, the Department of Health and Human Services Secretary, Robert F. Kennedy, Jr., has highlighted the removal of petroleum-based synthetic dyes as a focus of the MAHA campaign.  See also link.  FDA has withdrawn the approval of Red No. 3 based on evidence that it causes cancer in animals, but even though there is no evidence that they are unsafe, Secretary Kennedy has encouraged industry to also (voluntarily) remove any and all petroleum-derived dyes from foods.  To aid the industry in this effort, FDA appears to have accelerated approval of nature-derived color additives, often referred to as “natural colors.”

Gardenia Blue, derived from the fruit of the Gardenia jasminoides plant using genipin, is the latest in a string of plant-based color additives to receive FDA approval.  It joins three others, which FDA authorized in May, two plant-based colors and one mineral-based color, reflecting a clear regulatory trend toward food colors derived from nature.  FDA determined that Gardenia Blue, meeting certain specifications, is safe for use in a variety of foods, such as sports drinks, flavored or enhanced non-carbonated water, fruit drinks and ades, ready-to-drink teas, and hard and soft candy.

Although color additive approvals result from CAPs and the relevant petitions have been in the pipeline for several years, the four approvals so far under this administration appear to mark a sharp uptick from years prior.  In 2025, before President Trump took office, there was one approval for the safe use of myoglobin as a color additive in ground meat and ground poultry analogue products.  In 2024, there were zero approvals.  In 2023, there was one approval for the safe use of jagua (genipin-glycine) blue as a color additive in various food categories, and, in 2022, there were three approvals for the safe use of spirulina (Arthrospira platensis), calcium carbonate, and Antarctic krill meal in various food products (link, link, link).  As of this writing, there are an additional four CAPs pending review.

These approvals align with MAHA’s broader strategy to replace petroleum-based synthetic color additives with consumer-preferred alternatives—a move that also responds to public pressure.

Red No. 3 Gets a Firm Deadline

For decades, Red No. 3 has faced criticism due to research linking it to cancer in lab animals (see, e.g., link).  Although it was banned in cosmetics in 1990, it remained legal for use in foods—until recently.  In response to a petition from 2022, FDA revoked Red No. 3’s authorization and repealed the relevant regulation.

FDA has set a firm deadline of January 15, 2027 for manufacturers to phase out the use of Red No. 3 in food products.  However, FDA encourages the industry to remove the color additive as soon as possible.  According to the Agency’s official announcement, this phase-out aims to “further the goal of Making America Healthy Again” and reduce health risks associated with synthetic dyes.

FDA has pledged to offer guidance and technical support to the industry throughout the transition.  Prompt approval of alternatives to Red No. 3 and other certified colors would certainly help accelerate the phase out.  That said, every new color comes with its own challenges, and the industry will need time to adjust processing and formulation to produce the right color using a color additive.

MAHA Agenda Continues to Gain Momentum

This regulatory momentum is part of a wider effort spearheaded by Secretary Kennedy, who has made food reform a central pillar of the MAHA agenda.  Among other things, the initiative aims to eliminate “unsafe additives.”

FDA’s FY 2026 budget request includes $49 million to support food chemical evaluations, safety reviews of high-risk additives like phthalates and synthetic dyes, and the development of a post-market surveillance system for food additives.

Industry Impact and Takeaways

As we have cautioned and discussed before (here, here), food and beverage companies should take careful note of these developments and related state-level initiatives.  With FDA setting clear deadlines and increasingly favoring plant-based alternatives, proactive adaptation will be critical.  Companies that invest in reformulation and label transparency will be better positioned to meet regulatory requirements and consumer expectations.