By James R. Phelps –

On November 7, 2008, the First Appellate District in the Court of Appeal of the State of California, which sits in San Francisco, issued a remarkable decision in Conte v. Wyeth, Inc.  The court said:  “We hold that the common law duty to use due care owed by a name-brand prescription drug manufacturer when providing product warnings extends not only to consumers of its own product, but also to those whose doctors foreseeably rely on the name-brand manufacturer’s product information when prescribing a medication, even if the prescription is filled with the generic version of the prescribed drug.”

Lawyers should read the entire opinion.  However, for present purposes, the interesting part of the decision is this:  The plaintiff’s successful argument was that Wyeth should have warned doctors that its product (metoclopramide) and the generic forms of its product should be administered for no more than 12 weeks at a time.  Conte was given a generic by her physician, and she claimed the physician didn’t give her the warning and she took the drug for a longer period, causing her harm.  Conte relied upon the fact that the alleged misrepresentations she used as the basis for her claim appeared in the labeling of Wyeth’s product, Reglan, and in a monograph on Reglan it provided for the Physician’s Desk Reference (“PDR”).  The generics used the language of the monograph in the FDA-approved labeling for their products.  Conte’s physician said he did not rely on the monograph, but he also said he had “probably” read it; he also acknowledged generally using the PDR.  That, the court ruled, was enough to raise a factual issue requiring a trial, and it reversed the summary judgment that had been granted for Wyeth.

The implications of this finding are potentially vast.  Product liability defense lawyers have expressed surprise and deep concern that the net of liability should be spread to include those who did not make or market the drugs that are the subject of tort litigation.  The decision, if it stands or is followed, certainly will further complicate the relationship between generic and brand name manufacturers.

Hat tip to Drug and Device Law Blog.

By Ricardo Carvajal –   

According to a web site set up by GAO to aid the 2009 congressional and presidential transition, the need to revamp oversight of food safety is one of several pressing issues that demand urgent attention.  Since the early-1990’s, GAO has issued a long string of reports that criticize numerous aspects of the federal government’s system for oversight of food safety.  GAO has been especially critical of the fragmented nature of the current system, noting that multiple agencies are tasked with administering 30 or more laws, resulting in “inconsistent oversight, ineffective coordination, and inefficient use of resources.”  Resource constraints are highlighted as a particular problem for FDA.

GAO previously advocated establishment of a single food safety agency, but its new transition web site stops short of reiterating that recommendation.  Instead, GAO urges the President to  “consider alternative structures for oversight of food safety to facilitate interagency coordination,” and suggests that Congress “commission the National Academy of Sciences or a blue ribbon panel to conduct a detailed analysis of alternative organizational food safety structures,” among other measures.  GAO also recommends that Congress enact “comprehensive, uniform, and risk-based food safety legislation.”

It is not difficult to find areas of the current food safety oversight system that are sorely in need of improvement.  However, devising cost-effective measures that will yield tangible improvements is another matter.  Let’s hope that the urge to do something is tempered by the restraint needed to ensure that matters are not made worse.

By Carrie S. Martin –

On October 16, 2008, the U.S. District Court of the District of Columbia issued an opinion in Hays v. Leavitt holding that the “least costly alternative” policy implemented by the Centers for Medicare and Medicaid Services (“CMS”) was contrary to the Medicare Act, 42 U.S.C. § 1395, et seq. (the “Act”).  The court granted summary judgment for Plaintiff Ilene Hays, a Medicare beneficiary, finding that Defendants unlawfully limited the reimbursement rate of DuoNeb (albuterol sulfate; ipratropium bromide), an inhalation drug, to the “least costly alternative,” contrary to Congressional intent.  Another plaintiff, Dey, L.P., the manufacturer of DuoNeb, was dismissed as lacking standing to sue.

In April 2008, the defendants, four Medicare contractors, issued a local coverage determination (“LCD”) for DuoNeb, changing the drug’s reimbursement from the average sales price to the “least costly alternative,” in this case, separate doses of DuoNeb’s active ingredients, albuterol and ipratropium.  Plaintiffs sued, arguing that the policy was contrary to § 1395y(a) of the Act, which prohibits the reimbursement of any expenses for “items and services” that are not “reasonable and necessary.”  Although the Act allows Medicare contractors, in certain circumstances, to determine what payments are barred under the “reasonable and necessary” standard through LCDs, Plaintiffs argued that application of that policy to DuoNeb was contrary to law.  Plaintiffs pointed to the explicit payment scheme for inhalation drugs set forth in the Act (42 U.S.C. §§ 1395u(o)(1)(G)(ii), 1395w-3a.).  Defendants, however, argued that the term “reasonable and necessary” was ambiguous and could be read to modify “expenses” rather than “items” or “services.”  Such a reading justified the LCD issued for DuoNeb. 

The court, analyzing the arguments under the familiar Chevron standard, concluded that the “most natural reading” of the law is that the term “reasonable and necessary” modifies “items and services.”  Furthermore, the court found that – contrary contrary to Defendants’ arguments – the explicit language of § 1394w-3a indicated that Congress did not intend the “reasonable and necessary” requirement to be construed broadly to allow LCDs for drugs like DuoNeb, which have pre-existing statutory payment schemes.  Hence, the court held that “Congressional intent is clear and section 1395y(a) does not authorize the Secretary [of the U.S. Department of Health and Human Services] to set a payment rate for an item or service that differs from the statutory formulary in section 1395w-3a.” 

By Bryon F. Powell –

On November 4, 2008, the United States District Court for the Middle District of Florida granted Defendants AstraZeneca’s and Parexel’s Motions to Dismiss in Ironworkers Local Union No. 68 v. AstraZeneca Pharmaceuticals LP.  In this case, the Plaintiffs, various union health and benefit funds and an individual consumer, claimed that the Defendants violated “the federal Rackeeteer Influenced and Corrupt Organizations ("RICO") statute and state consumer protection laws as well as common law claims for fraud, misrepresentation, civil conspiracy and unjust enrichment” on the basis that the Defendants allegedly misrepresented the safety and efficacy of the antipsychotic drug SEROQUEL (quetiapine fumarate), including via alleged off-label promotion.  The court dismissed the two RICO claims based on the Plaintiffs’ failure to show that their injuries were caused by the Defendants’ alleged scheme to defraud.

AstraZeneca Pharmaceuticals LP was represented by a number of law firms.  Parexel was ably represented by the Boston law firm of Sally & Fitch LLP through attorneys Kurt S. Kusiak, Peter E. Ball, Amber Anderson Villa, and William G. Cosmas.

This case continues a trend by the courts to dismiss off label use cases filed by private (non-government) plaintiffs.  See our earlier post on this subject: “Another Court Hammers an Off-Label Use Case.”

By Kurt R. Karst –      

Earlier today, the U.S. Court of Appeals for the District of Columbia Circuit issued its opinion in Teva Pharmaceuticals USA, Inc. v. Leavitt.  The case concerns the availability of 180-day exclusivity for a generic version of Janssen Pharmaceutica’s schizophrenia drug RISPERDAL (risperidone) Tablets based on Teva’s Paragraph IV certification to U.S. Patent #5,158,952 (“the ‘952 patent”).  Teva argued that the ‘952 patent was incorrectly removed from the Orange Book after the company submitted an ANDA with a Paragraph IV certification to the patent, because the annual paper version of the Orange Book listed the ‘952 patent while FDA’s electronic version did not.  In November 2006, U.S. Court of Appeals for the District of Columbia Circuit decided in Ranbaxy Laboratories Ltd. v. Leavitt that FDA may not delist a patent from the Orange Book following the submission of an ANDA with a Paragraph IV certification to that patent.

Teva sued FDA in March 2008 after the Agency denied a citizen petition Teva submitted in August 2007 requesting that FDA relist the ‘952 patent in the Orange Book and confirm Teva’s eligibility for 180-day exclusivity.  Teva argued in its petition (and in court) that because the “official Orange Book” (that is, the printed edition of the Orange Book) listed the ‘952 patent when the company submitted its ANDA, “FDA’s putative delisting of the ‘952 patent did not become effective until January 2002, when the official Orange Book reflected the delisting of that patent.”  As such, according to Teva, given the decision in Ranbaxy, FDA could not have lawfully delisted the ‘952 patent because of the company’s Paragraph IV certification to that patent, and the company remained eligible for 180-day exclusivity.

On April 11, 2008, Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia issued a 2-page order siding with Teva.  The order declared that the delisting of the ‘952 patent was unlawful, ordered FDA to relist the patent in the Orange Book and to restore Teva’s Paragraph IV patent certification, and enjoined FDA from approving any generic RISPERDAL Tablets ANDAs until Teva’s 180-day exclusivity expires.  FDA appealed the decision.

As we previously reported, on September 12, 2008 (the same day that oral argument was heard), a 3-judge panel of Circuit Judges Brown, Kavanaugh, and Senior Circuit Judge Williams filed a per curiam judgment vacating the district court’s April 11, 2008 injunction and reversing the district court’s order.  The Court also issued its mandate on September 12, 2008.

The Circuit Court’s November 7, 2008 decision, in conformity with the Court’s September 12, 2008 mandate and per curiam judgment, reverses the district court’s decision, vacates the district court’s injunction, and directs for the entry in judgment for FDA.  In reaching its decision, the Court states:

Teva’s ANDA did not meet the clear and unambiguous requirements of the statute because it did not and could not include a certification to a patent that claimed Risperdal . . . .  [(emphasis added)]

Unfortunately for Teva, an ANDA applicant’s right to a period of marketing exclusivity does not vest merely because a paragraph IV certification is filed. Only compliance with paragraph IV triggers exclusivity, and compliance presupposes the existence of a claiming patent.  The claim is a prerequisite; without it, there can be no valid certification.  Inadvertent failure by the agency to meet its separate publication requirement cannot defeat facts. Indeed, for this Court to accept Teva’s position, we would have to accept the proposition that even partial inadvertence is sufficient.  The electronic version of the Orange Book reflected the withdrawal of the ‘952 patent at least a month before Teva submitted its certification. Teva’s argument goes beyond punishing Agency inadvertence; it would reward willful blindness on the part of manufacturers – a position clearly at odds with Hatch-Waxman’s focus on fostering competition and lowering drug prices.

In a concurring opinion, Senior Judge Williams wrote “to clarify an ambiguity in the majority decision:”

The panel opinion says on the one hand that “a ‘claim’ is simply a description of the subject a patent purports to cover as established by the NDA holder.”  Maj. Op. at 6 (emphasis added).  This seems to imply that the statute requires the FDA to accept the NDA holder’s listing and delisting decisions, imposing on it the ministerial role that it has chosen for itself.  On the other hand, the majority opinion describes the FDA’s choice to adopt a ministerial role as a “common-sense policy choice” that is merely “consistent with the statute.”  Id. at 7.  I have seen no reasoning either in this opinion or in those of other courts that would support the idea that the statute mandates a ministerial role; for this case, all that is needed is a conclusion that the FDA’s adoption of that role is reasonable.

Senior Judge Williams repeatedly refers to the Fourth Circuit's 2002 decision in aaiPharma Inc. v. Thompson, in which FDA argued that its role with respect to patent issues is purely ministerial, while the plaintiff argued that FDA has to make its own determination about Orange Book patent listing.  The Fourth Circuit adopted FDA’s interpretation of the FDC Act as reasonable; however, Senior Judge Williams notes that “had the FDA adopted the plaintiff’s position and sought to protect third-party patent holders, the aaiPharma court would have viewed that construction of the statute as reasonable too.”  He concludes that “to read the majority opinion as implying that the statute locks the FDA into a ministerial role would be inappropriate.  Such a reading would prevent the FDA from taking a more active role in the listing process, thereby better protecting third parties’ rights, and finds no support in the cases cited by the majority opinion . . . .”

By Kurt R. Karst –

Answer: "October 24, 2008" . . . .  queue Jeopardy!  think music . . . .  Question: "What is the date on which patent information was first listed in the Orange Book covering an old antibiotic drug product?"  Alex Trebek: "Correct!"   

On October 24, 2008, the Electronic Orange Book listed information on three patents covering MiddleBrook Pharmaceuticals' MOXATAG (amoxicillin extended-release) Tablets – specifically, U.S. Patent Nos. 6,544,555, 6,669,948, and 6,723,341.  MOXATAG, a once daily product, was approved earlier this year under NDA #50-813 for tonsillitis and/or pharyngitis secondary to Streptococcus pyogenes in adults and pediatric patients 12 years and older.  Hyman, Phelps & McNamara, P.C. is proud to have assisted MiddleBrook in its efforts to obtain Orange Book patent listing.   

The Orange Book listing of patent information on old antibiotic drug products – i.e., antibiotic active ingredients (and derivatives of such ingredients) included in an application submitted to FDA for review prior to November 21, 1997, the date of enactment of the FDA Modernization Act – was made possible with the October 8, 2008 enactment of Section 4 – "Incentives For The Development Of, And Access To, Certain Antibiotics" – of the "QI Program Supplemental Funding Act of 2008" (Pub. L. No. 110-379).  As we previously reported, the 1984 Hatch-Waxman Amendments excluded antibiotic drugs, which were then approved under FDC Act § 507, from the Act's patent and non-patent market exclusivity provisions (except for the availability of a patent term extension); however, Pub. L. No. 110-379 amended the FDC Act to add § 505(v) – "Antibiotic Drugs Submitted Before November 21, 1997" – to make Hatch-Waxman benefits available. 

With respect to Orange Book patent listing, Section 4(b)(1) of the new law states that for "a patent issued before [October 8, 2008], any patent information required to be filed with [FDA] under [FDC Act § 505(b)(1) or (c)(2)] to be listed on a drug to which [FDC Act § 505(v)(1)] applies, shall be filed with [FDA] no later than 60 days after the date of enactment of this Act."  Section 4(b)(2) of the Act requires FDA to  publish such patent information in the electronic version of the Orange Book "as soon as it is received, but in no event later than the date that is 90 days after enactment of this Act."  Generic companies that amend their pending ANDAs not later than 120 dates after enactment of the new law to include a Paragraph IV certification to a newly-listed old antibiotic drug patent are considered "first applicants" for 180-day exclusivity purposes.  Provided FDA interprets the law consistent with changes made to the FDC Act by the Medicare Modernization Act, generic applicants that amend a pending ANDA to include a Paragraph IV certification should not be subject to a 30-month stay of approval if sued by the NDA holder or patent owner for patent infringement within the statutory 45-day period.  Presumably a company that first submits an ANDA containing a Paragraph IV certification after patent information is listed in the Orange Book could be subject to a 30-month stay if such generic applicant is sued for patent infringement within the statutory 45-day period.    

By Ricardo Carvajal –      

FDA recently published a notice of a proposed collection of information that solicits comments on the use of its new electronic system, called MedWatch^Plus Portal, for the collection, submission, and processing of adverse event reports and other safety information for all FDA-regulated products.  FDA intends to use the new system to meet the agency’s obligations under § 417(b) of the FDC Act – added by § 1005 of the FDA Amendments Act of 2007 ("FDAAA") – which requires that FDA establish a Reportable Food Registry and electronic portal by September 27, 2008.  As we discussed more fully in our FDAAA summary, § 417(d) requires a responsible party to submit an instance of a reportable food to the electronic portal within 24 hours for possible inclusion in the registry.  That reporting requirement went into effect on September 27.  However, FDA previously acknowledged that it would not meet the September deadline for establishment of the electronic portal, and indicated that it was developing a system that was expected to be operational in Spring 2009.  The agency appears to be on track to meet its target date.  In the interim, FDA has instructed industry to continue reporting instances of food adulteration to the relevant FDA District office.

By Diane B. McColl & Ricardo Carvajal –  

FDA has published a final rule and a draft Compliance Policy Guide (“CPG”) on prior notice of imported food shipments under the Bioterrorism Act of 2002 (“BT Act”).  The final rule and draft CPG are available here.  The BT Act added § 801(m) to the FDC Act to require that FDA receive prior notice for food imported or offered for import into the United States.  Inadequate prior notice can lead to refusal of admission.  FDA and the U.S. Customs and Border Protection ("CBP") have operated under the terms of an Interim Final Rule (“IFR”) that they jointly issued on October 20, 2003.  The final rule will introduce some significant changes.  For example, under the IFR, prior notice cannot be submitted more than 5 calendar days before the anticipated date of arrival at the anticipated port of arrival.  Under the final rule, this period will be lengthened to 15 days for submissions made through the Prior Notice System Interface (“PNSI”), and 30 calendar days for submissions made through the Automated Broker Interface of the Automated Commercial System (“ABI/ACS”) (this change will not affect the timeframes for prior notice for food arriving by international mail).

The final rule will appear in the Federal Register on November 7, 2008, and will become effective on May 8, 2009.  FDA does not plan to adopt a phased-in approach to enforcement as it did with the IFR.  Thus, FDA can be expected to begin enforcing the final rule on May 8, 2009.  The draft CPG sets out a number of factors that FDA and CBP may consider in deciding not to take regulatory action when a food is imported or offered for import without prior notice.  These include evidence that the food is imported for non-commercial purposes, for research and analysis purposes only, or, in the case of seed, for cultivation.  Comments on the draft CPG should be submitted to Docket No. 2003D-0554 by December 8, 2008 to ensure that they receive full consideration. 

By Kurt R. Karst –      

Commissioner Pamela Jones Harbour of the Federal Trade Commission (“FTC”) recently gave a speech, titled “The Federal Trade Commission’s Perspective on Biosimilars: Current Initiatives and Long-Term Goals.”  This is at least the second speech in which Commissioner Harbour has address the topic of Follow-On Biologics (“FOBs”).  In June 2007, she gave a speech, titled “The Competitive Implications of Generic Biologics,” in which she stated her hope and expectation that the FTC would play an important role in the debate over FOBs.

Commissioner Harbour’s recent speech largely follows up on the FTC’s May 2, 2008 comments provided in response to an April 3, 2008 letter from the House of Representatives Energy and Commerce Committee Subcommittee on Health.  As we previously reported, the letter was sent a to a diverse group of  stakeholders soliciting feedback on how to establish a pathway to allow FDA to approve FOBs.  The FTC’s response and Commissioner Harbour’s recent comments focus primarily on the lessons that can be learned from experience with the Hatch-Waxman Amendments and caution Congress to take care to avoid any “unintended consequences” that could limit or eliminate the benefits of any FOB legislation.  

Commissioner Harbour’s recent speech also follows up on the FTC’s recent announcement and Federal Register notice on the Commission’s plans to hold a workshop concerning “competition provided by developing an abbreviated regulatory approval pathway for follow-on biologic drugs.”  The workshop is scheduled to take place on November 21, 2008 in Washington, D.C.  The FTC plans to issue a report in spring 2009 analyzing the potential impacts of FOBs on the marketplace. 

In her recent remarks, Commissioner Harbour states that “the Commission supports the development of an abbreviated approval pathway for follow-on biologics, balanced by an appropriate recognition of consumer safety and incentives to innovate,” but cautions that “policymakers should tread carefully, to ensure they fully understand the likely competitive implications and long-term consequences of their decisions.”

By Kurt R. Karst –     

Your loyal and intrepid bloggers were in attendance at today's argument before the U.S. Supreme Court in Wyeth v. Levine.  The case has been billed by some as the business case of the century; however, we think such hype is a little overblown, as even a decision against Wyeth would not mean the end of the world for defense attorneys in product liability litigation.  The media feeding frenzy over the highly anticipated oral argument was given some chum late last week when Representative Henry Waxman (D-CA) issued a staff report critical of FDA’s current anti-preemption policy and Wyeth responded to the staff report in a 3-page letter. 

For those of you not familiar with the facts of the case, Diana Levine, a Vermont bass player and author of children’s music, sought treatment for a severe migraine headache and associated nausea and dehydration and was administered Wyeth’s antihistamine PHENERGAN (promethazine HCl) via a delivery technique known as an “IV push” (as opposed to relying on gravity for an IV drip).  PHENERGAN was inadvertently injected into one of Ms. Levine’s arteries, causing gangrene, and leading to the amputation of one of her arms.  The FDA-approved PHENERGAN labeling warned against – but did not prohibit – IV push administration.  Specifically, the PHENERGAN labeling states, among other things: “INADVERTENT INTRA-ARTERIAL INJECTION CAN RESULT IN GANGRENE OF THE AFFECTED EXTREMITY.” 

Ms. Levine brought a common-law negligence claim against Wyeth in Washington County Superior Court on the theory that Wyeth should have revised PHENERGAN’s FDA-approved label to bar IV push administration.  Wyeth countered that Ms. Levine’s state tort suit was impliedly preempted by federal law.  The jury in the trial court proceeding returned a verdict in favor of Ms. Levine, and the court issued an opinion independently addressing preemption as a matter of law, concluding that the jury’s state-law-based judgment presented no obstacle to FDA’s regulatory objectives.  Wyeth appealed to the Vermont Supreme Court, contending that the trial court erred by failing to hold that Ms. Levine’s common law claims were preempted, because: “(1) Wyeth would have been unable to comply with both Vermont’s common law duty to foreclose IV push injection and FDA’s directive, as evidenced by the drug’s approved label, to retain it; and (2) the claims would obstruct the full accomplishment of FDA’s risk-benefit objective to optimize use of Phenergan by imposition of a duty to foreclose IV push injection.” 

In October 2006, a divided Vermont Supreme Court upheld the trial court’s ruling, finding that because FDA approval is not required to strengthen warnings, Wyeth could have complied with both state and federal law, that FDA labeling regulations create only minimum labeling requirements, and that state tort liability for approved labels would not frustrate the objective of promoting the public health that led Congress to enact the FDC Act.  The Vermont Supreme Court did not afford any deference to recent FDA statements claiming that “FDA approval of labeling under the [FDC Act] . . . preempts conflicting or contrary State law,” and that “FDA interprets the [FDC Act] to establish both a ‘floor’ and a ‘ceiling,’ such that additional disclosures of risk information can expose a manufacturer to liability under the act if the additional statement is unsubstantiated or otherwise false or misleading.”

Wyeth appealed the Vermont Supreme Court decision to the U.S. Supreme Court.  The question posed to U.S. Supreme Court in this case is:

Whether the prescription drug labeling judgments imposed on manufacturers by the [FDA] pursuant to FDA’s comprehensive safety and efficacy authority under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., preempt state law product liability claims premised on the theory that different labeling judgments were necessary to make drugs reasonably safe for use.

As additional backdrop for the case, keep in mind that earlier this year in a decisive win for medical device manufacturers, the Supreme Court ruled 8-1 in Riegel v. Medtronic that preemption principles and the 1976 Medical Device Amendments (“MDA”) bar common law claims on the basis of safety or effectiveness of devices approved by FDA under a Premarket Approval Application.  However, unlike the MDA, which amended the FDC Act to include an express preemption provision (FDC Act § 521), the drug provisions of the FDC Act do not contain such a provision. 

(For additional background on the case, Drug & Device Law Blog provides an excellent primer.  Copies of the briefs filed in the case and other background materials are available via the SCOTUS Wiki.)

So on to today’s oral argument, which was argued on Wyeth’s behalf by Seth Waxman, on FDA’s behalf by Deputy Solicitor General Ed Kneedler, and on Ms. Levine’s behalf by David Frederick. . . . 

The Justices showed a keen interest in the case, interrupting all three attorneys of record with questions before they barely spoke their opening sentences.  One line of questioning by the Justices (initiated by Justice Ginsburg) raised the issue of whether the lack of an express drug preemption clause in the FDC Act (as opposed to existence of one with respect to medical devices – see Riegel) is of any significant import.  Not surprisingly, Wyeth and FDA argued that such absence is not significant, as the U.S. Constitution’s Supremacy Clause is controlling, and that preemption should be found. 

Mr. Frederick, who was heavily questioned by Chief Justice John Roberts and Associate Justices Antonin Scalia and Samuel Alito, at one point conceded that preemption would exist in this case had FDA considered and rejected the comparative risks of IV drip versus IV push administration.  But according to Mr. Frederick, FDA was not provided with such information when the Agency approved PHENERGAN, and Wyeth, allegedly knowing the risks of IV push administration, should have presented FDA with such information.  Mr. Waxman and Mr. Kneedler were adamant that FDA was informed and aware of the risks of IV push administration when the Agency approved PHENERGAN – and, in fact, FDA rejected Wyeth’s attempts to amending PHENERGAN’s labeling.  Chief Justice John Roberts summed up this line of argument as follows: if FDA was aware of and considered the risks associated with IV push administration and approved the PHENERGAN labeling, then why wouldn’t preemption apply?

It is always difficult to prognosticate about Supreme Court decisions . . . and we are not willing at this juncture to say whether the Court will rule in favor of or against Wyeth.  That being said, given the tenor of the Court’s questions, which dealt specifically with what FDA knew and what the submissions were, we believe that: (1) an outcome either way is likely to be narrowly focused; and (2) that a narrow outcome could result in additional litigation as to whether preemption is available in any specific set of facts (i.e., a sweeping proclamation of preemption involving all drug labeling is unlikely).  But the Court’s opinion may not be issued for quite a while – perhaps not until mid-2009.  And because it is now less than 24 hours before the election, we should also note for good measure that even if the Court rules for Wyeth, the legal pundits are already speculating that “a Democrat in the White House and a Democratic Congress could erase any preemption protection companies have won in the last eight years.”  In other words, the debate is far from over.  Stay tuned for more.

UPDATE:

• A transcript of today's oral argument in Wyeth v. Levine is available here.
• The Drug and Device Law Blog provides an excellent summary of today's oral argument.

The FDA Law Blog would like to congratulate our colleagues Jim Phelps and Jeff Gibbs on being named among the best Food and Drug Lawyers in Washington, DC, according to "Washington DC's Best Lawyers," in association with the Legal Times.  We've always thought they were top-notch; it's good to see others in agreement!   The best of list was published in a special supplement to the October 31, 2008 edition of The Washington Post. 

By Kurt R. Karst –      

Happy Halloween!  Earlier this week, Health News Daily reported that Dr. Sidney Wolfe, Director of Public Citizen’s Health Research Group, was named a permanent member of FDA’s Drug Safety and Risk Management Advisory Committee.  A copy of Dr. Wolfe’s  Curriculum Vitae is available here. 

Throughout his 36-year tenure as Public Citizen’s Health Research Group Director, Dr. Wolfe has repeatedly challenged pharmaceutical companies and FDA regarding drug and other product issues.  For example, earlier this year, Public Citizen sued FDA for failing to respond to a 2006 citizen petition seeking the removal of propoxyphene drug products from the market.  And just yesterday, Public Citizen submitted a citizen petition to FDA requesting that the Agency immediately ban the diabetes drug AVANDIA (rosiglitazone).

So how will Dr. Wolfe affect FDA’s Drug Safety and Risk Management Advisory Committee as a permanent member?  Well, one might only need to look at his recent participation as a temporary voting member at a May 6, 2008 joint meeting of FDA’s Drug Safety and Anesthetic and Life Support Drugs Advisory Committees concerning FENTORA (fentanyl buccal tablet).  During the meeting, Dr. Wolfe reportedly played a significant role in setting the tone that led the committees to vote against approving FENTORA for the management of breakthrough pain in opioid-tolerant patients with chronic pain conditions.  Folks will get to see Dr. Wolfe in action as a permanent advisory committee member when the Drug Safety and Risk Management Advisory Committee meets later this year (in November and December).

By Ricardo Carvajal –

In its most recent response letters to New Dietary Ingredient ("NDI") notifications submitted pursuant to FDC Act § 413(a)(2), FDA included the following paragraph:

Based on the information in your submission, it is possible that a recently enacted law may affect the legal status of dietary supplements containing [the NDI].  Section 301(ll) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 331(ll)) prohibits the introduction or delivery for introduction into interstate commerce of any food (including a dietary supplement) that contains a drug approved under 21 U.S.C. 355, a biological product licensed under 42 U.S.C. 262, or a drug or a biological product for which substantial clinical investigations have been instituted and their existence made public, unless one of the exemptions in section 301(ll)(1)-(4) applies. In our review of your notification, FDA did not consider whether section 301(ll) or any of its exemptions apply to dietary supplements containing [the NDI]. Accordingly, this response should not be construed to be a statement that a dietary supplement containing [the NDI], if introduced or delivered for introduction into interstate commerce, would not violate section 301(ll).

We previously reported that FDA began to include a similar paragraph in its “no questions” letters issued in response to GRAS notices.  The inclusion of the above paragraph in response letters to NDI notifications suggests that, at a minimum, FDA is keeping the door open to interpreting “food” as used in § 301(ll) to include dietary supplements.  This is one of the issues on which FDA requested comment  with regard to possible interpretations of § 301(ll).  Although that comment period closed on October 27, numerous requests asking for an extension of the comment period were submitted to FDA.

According to FDA, the deadline for submission of comments has been extended until November 25, 2008.  When asked, FDA officials have responded orally that the extension is party-specific; that is, only those parties that submitted a timely request for an extension can be assured that comments submitted during the extension period will be considered.  However, in the past FDA has ordinarily considered relevant comments even when submitted after the deadline has expired and no extension period is granted, and it would be surprsing for FDA to reject comments on § 301(ll) except from those who have formally requested an extension, given the potential importance of this new section to the food, dietary supplement and drug industries.

By Ricardo Carvajal & Kurt R. Karst –    

On October 28, 2008, FDA announced that the Agency issued Warning Letters to Bayer HealthCare contending that two of Bayer’s products, Bayer Women’s Low Dose Aspirin + Calcium and Bayer Aspirin with Heart Advantage (Heart Advantage), are unapproved new drugs and are misbranded.  Copies of the Warning Letters are available here and here.  The Heart Advantage Warning Letter further contends that the cardiovascular claims in the labeling of that product are not entitled to First Amendment protection because they are false, misleading, or concern illegal activity.  In the alternative, FDA argues that its objections to the claims are permissible under the First Amendment because: (1) FDA’s interest in protecting public health by ensuring that drugs are safe, effective and properly labeled is substantial; (2) the drug approval process, OTC drug review, and associated labeling requirements directly advance FDA’s substantial interest; and (3) that process and those requirements are no more extensive than necessary to serve FDA’s interest.

The FDA Warning Letters come on the heels of October 14, 2008 letters from Representatives John Dingell (D-MI) and Bart Stupak (D-MI) of the House of Representatives Energy and Commerce Committee to Bayer and the U.S. Department of Health and Human Services asking for information about the marketing of Bayer’s products as part of the Committee’s investigation of direct-to-consumer advertising of drug products.  The letters cite FDA’s May 2000 letter to industry, which recommends against the marketing of combination OTC drug/dietary supplement products.  More recently, the American Herbal Products Association sent FDA a letter that referenced Bayer’s Heart Advantage and asked for clarification of the Agency’s current policy on the marketing of combination OTC drug-dietary supplement combination products. 

By Kurt R. Karst –

Further cementing FDA’s position that a generic applicant can forfeit 180-day exclusivity after patent information is "withdrawn" by the NDA holder, FDA ruled earlier today that Hi Tech Pharmacal Co., Inc. (“Hi Tech”) forfeited 180-day exclusivity after the information on  two exclusivity-qualifying Orange Book-listed patents covering the ophthalmic drug product COSOPT (dorzolamide hydrochloride; timolol maleate) had been withdrawn by the NDA holder, Merck & Co., Inc. (“Merck”).  FDA’s ruling was issued in the U.S. District Court for the District of Columbia around 10:00AM this morning, after the Court decided earlier this month not to grant Hi-Tech’s preliminary injunction motion seeking to prevent FDA from granting final ANDA approval to any subsequent ANDA applicant during Hi-Tech’s period of 180-day exclusivity.  Hyman, Phelps & McNamara, P.C. has represented Hi-Tech in its efforts – thereby explaining our decision not to address, until now, this case on the FDA Law Blog.  Apotex, Inc., a subsequent ANDA applicant, is an Intervenor-Defendant in the case, and Teva Pharmaceuticals USA, Inc., also subsequent ANDA applicant, filed an amicus brief in the case supporting Hi-Tech’s position.

We will spare you all of the details of the case.  Instead, we will focus on FDA’s Letter Decision.  But first, some quick facts . . . .  

Hi-Tech submitted the first ANDA to FDA containing a Paragraph IV certification to three patents listed in the Orange Book covering COSOPT.  This qualified Hi-Tech as a “first applicant” eligible for 180-day exclusivity.  Merck challenged Hi-Tech on one of those patents – U.S. Patent No. 4,797,413 (“the ‘413 patent”) – and Hi-Tech lost.  The ‘413 patent expired on April 28, 2008, but was subject to a period of pediatric exclusivity that expired on October 28, 2008.  Merck did not challenge Hi-Tech on the remaining two patents – U.S. Patent Nos. 6,248,735 (“the ‘735 patent”) and 6,316,443 (“the ‘443 patent”).  Instead, on April 26, 2006, Merck sent a letter to FDA requesting that information on the ‘735 and ‘443 patents be delisted from the Orange Book.  The patents have continued to be listed in the Orange Book, even today. 

Then along comes FDA’s May 2008 Letter Decision concerning 180-day exclusivity for generic PRECOSE (acarbose) Tablets.  In that case, FDA ruled that a request to withdraw patent information from the Orange Book is a forfeiture event under the “failure to market” provisions at FDC Act § 505(j)(5)(D)(i)(I), which were added to the law in December 2003 by the Medicare Modernization Act (“MMA”).  (See our May 11, 2008 post for a discussion of FDA’s acarbose decision.)  Hi-Tech then sent a letter to FDA arguing that the company could not forfeit 180-day exclusivity, and requesting that FDA make a prompt exclusivity decision to allow Hi-Tech to seek judicial relief in case of an adverse FDA decision.  FDA refused to make a decision before October 28, 2008, when the period of pediatric exclusivity on the ‘413 patent expired, and Hi-Tech sued FDA to get an exclusivity decision.  FDA subsequently opened a public docket, and, as mentioned above, the District Court, denied Hi-Tech’s motion for preliminary injunction, but instructed the parties to meet in court at 10:00AM on October 28, 2008 when FDA would issue its Letter Decision. 

FDA’s 16-page COSOPT Decision Letter concludes that Hi-Tech forfeited 180-day exclusivity on April 11, 2008, which is 30 months after Hi-Tech submitted its ANDA, and is also the “later of” date under the FDC Act § 505(j)(5)(D)(i)(I) “failure to market” forfeiture analysis.  In FDA’s January 2008 Letter Decision concerning 180-day exclusivity for generic KYTRIL (granisetron), the Agency determined that there must be both an item (aa) and an item (bb) forfeiture event under FDC Act § 505(j)(5)(D)(i)(I) for the Agency to determine a “later of” forfeiture date.  With respect to generic COSOPT, the item (aa) date was April 11, 2008, and the item (bb) event was, according to FDA, July 10, 2006 – 75 days after Merck withdrew information on the ‘735 and ‘443 patents (FDC Act § 505(j)(5)(D)(i)(I)(bb)(CC)).  With respect to Hi-Tech’s argument that FDC Act § 505(j)(5)(D)(i)(I) requires a failure on Hi-Tech’s part (and that Hi-Tech did not “fail” to do anything it was required to do), FDA ruled that the “failure to market” forfeiture provisions “must be read as establishing a ‘no-fault’ forfeiture when an applicant fails to market by one of the identified dates.”  Hi-Tech also argued that the 180-day exclusivity tolling provisions under the Best Pharmaceuticals for Children Act (FDC Act § 505A(m)) should prevent a forfeiture.  FDA, however, ruled that FDC Act § 505A(m) applies only in the pre-MMA context, where 180-day exclusivity could be triggered by a court decision of patent invalidity, non-infringement, or unenforceability. 

FDA’s position for not providing an early exclusivity decision with respect to generic COSOPT – and in other cases as well – is that “[m]aking and advance decision on generic exclusivity . . . would result in FDA making decisions in piecemeal fashion, and FDA could be inundated with such requests from ANDA sponsors.  In addition, FDA would be unable to fully explain the basis for an advance exclusivity decision since many details of ANDAs are non-public until approval, and judicial review would thus be similarly circumscribed.”  FDA also notes that a policy of not making advance decisions “is also consistent with Congress’s choice to vest FDA with the authority to take and give effect to its actions, such as approving drugs, subject to subsequent challenge under the Administrative Procedure Act.”  Notwithstanding these concerns and points, and as we stated in court today, and the judge has articulated on several occasions, such a system leads to unnecessary court fire drills, and, more importantly, can preclude meaningful judicial review of FDA decisions.  FDA would do well to rethink its exclusivity decision-making process.  A status conference on the case has been scheduled for November 7, 2008.