In a previous post, we covered Gilead’s Citizen Petition to the FDA requesting FDA change its policy on how it allocates five years marketing exclusivity. Gilead argued that the current ruling whereby the five year exclusivity cannot be granted if even one active ingredient in the new drug application (“NDA”) has been previously approved should be altered. Stribild®, which has two previously-approved active ingredients and two new active ingredients, is currently precluded from obtaining the five years new chemical entity (“NCE”) exclusivity.
Mylan filed a Comment in Response, supporting FDA’s current FDA interpretation, arguing against the various points raised in Gilead’s Citizen Petition. First, Mylan points out that FDA’s interpretation is not a matter of policy but governed by the plain language of the statute passed by Congress. The relevant statute is “The Drug Price Competition and Patent Term Restoration Act of 1984” (“Hatch-Waxman” or “the Act”) which states in the section dealing with allocation of the five-year new chemical entity (“NCE”) marketing exclusivity: “[I]f an application submitted under subsection (b) of this section for a drug, no active ingredient … of which has been approved in any other application under subsection (b) of this section.” Mylan argued that: (i) despite Gilead’s attempts at re-interpreting the meaning of “drug” and “active ingredient”, the statute still plainly says that there must be no active ingredient in the NDA that has been previously approved for the five year exclusivity to be granted and (ii) when Congress wrote “an application submitted under subsection (b) for a drug”, it reasonably understood the word “drug” as used in this phrase to mean drug product and, not as Gilead would like to believe, a single component of the drug, such as the active ingredient.
As further support, Mylan pointed to the language of the three-year new clinical data marketing exclusivity provision:
Section 505(j)(5)(F)(iii) states:
If an application submitted under subsection (b) for a drug, which includes an active ingredient (including any ester or salt of the active ingredient) that has been approved in another application under subsection (b), is approved after the date of the enactment of this subsection and if such application contains reports of new clinical investigations (other than bioavailability studies) essential to the approval of the application and conducted or sponsored by the applicant, the Secretary may not make the approval of an application submitted under this subsection for the conditions of approval of such drug in the subsection (b) application effective before the expiration of three years from the date of the approval of the application under subsection (b) for such drug.
Thus, Mylan argued, taken together the plain language of the statute for both exclusivities leads to the conclusion that the current FDA interpretation is correct.