FDA Lawyers Blog

Frommer Lawrence & Haug LLP is proud to announce that the Food and Drug Law Institute ("FDLI") just published the FDLI Primer, "The Drug/Biologics Approval Process" authored by FLH Partner Brian J. Malkin and Associate Scot Pittman. Mr. Malkin has been a member of the Primer Committee for several years now. Recently, FDLI decided to make each Primer separately available for purchase ($119 for nonmembers, $95 members) rather than an entire series for its predecessor FDLI Monograph publication. FDLI asked Mr. Malkin to author this Primer based on a previous FDLI publication authored by Geoffrey M. Levitt, Senior Vice President and Associate General Counsel, Regulatory and Policy, Pfizer, Inc. Updates in the FDLI Primer include adaptations based on recent FDA legislation, including the latest user fees acts for generic drugs and biosimilars and the Food and Drug Administration Safety and Innovation Act ("FSASIA"). According to FDLI, Primers are:

[E]xtensively researched, referenced, and edited by some of the most experienced and respected professionals in the field. ... The Primers are designed to provide you with information and proprietary analysis to enable you to advise your clients or help your company comply with vexing issues, regulations, and guidance.

Written by Brian J. Malkin

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For this particular FDLI Primer, FDLI writes:

This publication will explain, in practical terms, the approval processes for drugs and biologics. It will describe the various FDA premarket requirements and pathways for drug and biologics application reviews, including changes enacted under the Food and Drug Administration Safety and Innovation Act (FDASIA). Topics addressed will include the New Drug Application (NDA) process, non-NDA routes to market, generic drugs and the abbreviated new drug application process, as well as over-the-counter drugs and biologics. With this Primer, pharmaceutical stakeholders will feel confident that they have a helpful overview to support successfully navigating the FDA drug and biologics review processes.

Yesterday, FDA issued two new items to help clarify combination products: 1) a Final Rule published in the Federal Register entitled, "Current Good Manufacturing Practice Requirements for Combination Products" and 2) a Draft Guidance entitled, "Guidance for Industry and FDA Staff:
Submissions for Postapproval Modifications to a Combination Product Approved Under a BLA, NDA, or PMA", also announced in the Federal Register.

The Final Rule is intended to clarify which good manufacturing practice ("CGMP") requirements apply when drugs, devices, and biological products are combined to create combination products. The Rule also provides a mechanism that FDA describes as "transparent and streamlined regulatory framework" for companies to use when demonstrating compliance with CGMP requirements for "single-entity" and "co-packaged" combination products. "Single-entity" combination products are two or more regulated components, e.g., drug/device, biologic/device, drug/biologic/device, which are physically, chemically, or otherwise combined or mixed and produced as a single-entity. Two or more separate products packaged together in a single package or as a unit and comprised of two or more regulated products is a "co-packaged" combination product. The Final Rules started as a Draft Guidance announced on October 4, 2004 (69 FR 59239), entitled "Current Good Manufacturing Practices for Combination Products." Based on comments and FDA's own internal review, FDA decided that "rulemaking was warranted" and issued Proposed Rules on September 23, 2009 (74 FR 48423).

Written by Brian J. Malkin

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The concept behind the CGMP Rule is simple for parts that are separately manufactured and marketed: each of the constituent parts of a combination product are subject only to the CGMP regulations applicable to that part, e.g., drug, biologic, or device. The two categories of combination products mentioned above, however, "single-entity" and "co-packaged" are slightly different due to the possibility for overlapping CGMP requirements for the different regulated components. Companies have two basic options for these types of products: 1) demonstrate compliance with the specifics of all CGMPs to each of the parts, or 2) demonstrate compliance with the specifics of either the drug CGMPs at 21 C.F.R. Parts 210 and 211 or the quality system ("QS") regulation at 21 C.F.R. Part 820 rather than both, for drug/devices under certain conditions. For combination products including biologics, the specific regulations are 21 C.F.R. parts 600 through 680, and for product including any human cell, tissue, and cellular tissue-based products, the regulations are 21 C.F.R. Part 1271.

Earlier this week, the U.S. Supreme Court denied GlaxoSmithKline's certiorari petition in a case that would have helped clarify the scope of 35 U.S.C. § 271(e)'s safe-harbor provision. The issue facing the Court was whether section 271(e)(1) applies to postmarketing activity as well as premarketing activity.

Section 271(e), which states that it is not an act of infringement to make, use, offer to sell, or sell a patented invention "solely for uses reasonably related to the development and submission of information under [federal drug laws]," does not include a time limitation. The question about timing was highlighted in two recent Federal Circuit cases. In Classen Immunotherapies, Inc. v. Biogen Idec, 659 F.3d 1057 (Fed. Cir. 2011), the Federal Circuit explained that "§ 271(e)(1) is directed to premarketing approval of generic counterparts before patent expiration." Last year, however, a different panel of judges in Momenta Pharmaceuticals, Inc. v. Amphastar Pharmaceuticals, Inc., 686 F.3d 1348 (Fed. Cir. 2012) held that post-approval studies performed for the FDA fall within § 271(e)(1)'s safe harbor and explained that Classen held that 271(e)(1) "does not apply to information that may be routinely reported to the FDA, long after marketing approval has been obtained."

Written by Scot B. Pittman

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As previously blogged on here, the Solicitor General had urged the Supreme Court to deny GSK's petition in the Classen case. Despite a belief that the Federal Circuit erred in Classen, United States Solicitor General Donald Verrilli offered the following reasons why the Supreme Court should deny certiorari: (1) the Federal Circuit's Momenta decision sufficiently clarified and narrowed the Classen holding; (2) it was unclear whether the safe harbor applied to the types of patents at issue in the Classen case; and (3) the petitioners were not entitled to the safe harbor protection regardless of the Supreme Court's interpretation of the provision.

Over the past 8 years, thousands of your fellow legal professionals - from Associates to Partners to GCs have relied on ACI's FDA Boot Camp Conference to provide them with both a comprehensive overview of the basics of FDA law and current information on the status of regulatory law in the pharmaceutical, biotechnology, and medical device industries. We hope that this time you will be able to join your peers as this unique event returns to Boston in September.

Learn FDA regulatory basics from the experts--a veritable Who's Who of the FDA Regulatory Bar--and save the calls to regulatory counsel for the really complicated questions. Come, hear, and learn from a stellar faculty of the nation's leading food and drug lawyers, who will explain:

• The application and approval processes for drugs, biologics, and devices
• The regulatory balance between brand name and generic products
• The complexities of the patent and IP landscape, including Hatch-Waxman, Orange Book, 180-day exclusivity, 30-month stay, Paragraph IV, NDA, ANDA and 505(b)(2)
• The pivotal role of labeling in the drug and biologics approval process
• The importance of cGMPs to the post-approval regulatory process
• Advertising and Promotion, DTC Advertising, & Off-Label
• The protocols of adverse events monitoring, pharmacovigilance, and REMS
• Non-patent exclusivity, bioequivalency, and Follow-On Biologics
• Recalls, product withdrawals, and FDA oversight authority

Save the phone calls to your colleagues or other regulatory counsel for the truly complicated issues; attend ACI's FDA Boot Camp to boost your regulatory IQ
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In an effort to further investigate the position in emerging economies, FDA commissioned the Institute of Medicine ("IOM") to study and identify the core elements of food, drug, medical product, and biologics regulatory systems in developing countries with a view to identifying the main gaps in those systems and to design a strategy for FDA and other stakeholders, which can be used to strengthen the food and medical products regulatory systems abroad. FDA is under relentless pressure to increase the number of inspections it carries out of foreign medicinal product manufacturers. However, FDA cannot do this without help and without substantial improvements in the capacity of their counterpart agencies, particularly those in emerging economies.

The report compiled by the IOM Committee on Strengthening Core Elements of Regulatory Systems in Developing Countries and entitled "Ensuring Safe Foods and Medical Products Through Stronger Regulatory Systems Abroad" put forward several recommendations as to how the United States can play its part in helping strengthen the regulatory systems in low- and middle-income countries by promoting cross-border partnerships, including government, industry, and academia, to foster regulatory science and build a core of regulatory professionals. In putting together their report IOM staff travelled to China, Brazil, South Africa, and India to meet with regulators, representatives of regulated industry, academics, and health and development workers.

Written by Howard E. Rosenberg, Ph.D.

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The IOM recommended that the FDA should use enterprise risk management to assist its inspection, training, regulatory cooperation, and surveillance efforts and should facilitate training for regulators in developing countries. The objective being workforce training and professional development through an ongoing, standard regulatory science and policy curriculum. The IOM stated that, "[E]nsuring the safety of food and medical products imported from around the world is a difficult task, and one that the FDA has executed fairly successfully so far. There is no reason to believe that their luck will hold over the next 10 years without substantive improvements in the capacity of their counterpart agencies abroad."

On April 24, at the Food and Drug Law Institute's ("FDLI's") 55th Annual Conference 2012, reflecting on history of the FDA and FDLI, FDA Commissioner Margaret A. Hamburg, M.D., noted that dating back to the first FDLI/FDA informal conference back in 1957, FDA continues to regulate an "enormous scope" of products with a continuing need for more resources. Hamburg said that FDA is now at a "turning point"--there is a need to develop medical countermeasures for biological threats either natural- or terrorism-oriented, such as new antibiotics, and there are needs for new product such as treatments for type II diabetes and obesity. At the same time FDA is poised for various riders expected to be added to the four user fee bills presented to Congress. Some of those riders include new provisions for accelerated approval, increased authorities for FDA to regulate products or component of products made overseas (e.g., 85% of the active ingredients are manufactured outside us and 40% drug products are made outside the United States), increased monitoring for drug shortages, and strengthening FDA's rare disease program. Hoping to create a "brand" for FDA, Hamburg said there is a need for stronger and more sophisticated science to help bolster reliance by the world on FDA's decision-making as the "gold standard."

Following Hamburg, three of FDA's relatively-new Deputy Commissioners discussed key issues confronting each of them. Michael R. Taylor, Deputy Commissioner for Foods, said that he believes resource allocation is important. Taylor's key issues include antimicrobial resistance, nutrition labeling, nanotechnology, chemical contaminants, a new strategic plan for foods and veterinary medicine, and executive leadership management--all with a need to involve stakeholders in the process. Stephen P. Spielberg, M.D., Deputy Commissioner for Medical Products and Tobacco, said that he is excited to be working at FDA at a time when the medical community is better understanding the causes of diseases. He is looking at the potential for more synergies between the centers and also looking at his own responsibilities, including how to help prevent children from initiating smoking and becoming addicted to nicotine. Deborah M. Autor, Deputy Commissioner for Global Regulatory Operations and Policy, said she is interested in "leap frogging" and developing an enterprise management where domestic and foreign inspection are handled the same in an increasingly global environment with statutes and regulations drafted with domestic manufacturing primarily in mind. Autor is hoping that manufacturers take a better look at the supply chain and components that go into their products, while developing better risk analytics to maintain quality.

Written by Brian Malkin

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Following a discussion on FDA regulatory science and a lunch session highlighting FDLI's new upcoming conference in Brazil, each of the FDA centers presented their outlooks for the upcoming year. Presenting for the Center for Drug Evaluation and Research ("CDER"), Deputy Center Director, Douglas C. Throckmorton said that a key priority will be to finalize and implement the requirements of FDA's requested user fees. CDER plans to fill a number of key senior leadership position: an additional Deputy Center Director and directors for the Office of Generic Drugs, the Office of Biostatistics, the Office of Clinical Pharmacology, and the Office for Surveillance and Epidemiology. In addition,

FLH Partner Brian Malkin will attend the Food and Drug Law Institute's ("FDLI's") Annual Conference in Washington, D.C. on April 24-25. For 55 years, FDLI's Annual Conference has been considered the venue for food and drug law lawyers and professionals to hear from FDA and industry about new and emerging topics covering all the products FDA regulates. FDLI has reported that this year's event is expected to draw more than 600 attendees, who will hear directly from FDA's key leaders including Commissioner Margaret Hamburg; Deputy Commissioners Deborah Autor, Stephen Spielberg, and Michael Taylor, various representatives from FDA's six product Centers; newly-appointed Chief Counsel Eliabeth Dickinson, as well as a number of former Chief Counsels. An updated agenda is available here.

FDA Lawyers Blog is a Media Partner of FDLI's 55th Annual Conference. Prior to FDLI's Annual Meeting, Mr. Malkin will participate in a FDLI Monograph Committee Meeting on April 23 and will be working out of Frommer Lawrence & Haug LLP's Washington, D.C. office next week. Mr. Malkin looks forward to seeking you and catching up at FDLI's Annual Conference this year.

For more than 50 years, the Food and Drug Law Institute's ("FDLI's") Annual Conference has provided the venue for food and drug law professionals to discuss and debate emerging topics, as well as participate in valuable education programs. At this year's event, more than 600 attendees will hear directly from FDA leadership including Commissioner Hamburg; Deputy Commissioners Autor, Spielberg, and Taylor; representatives from FDA's six product Centers; Chief Counsel Dickinson and former Chief Counsels.

Programming at the Conference addresses a range of topics including: regulatory science; global developments and emerging markets; economic, legal and regulatory challenges of innovation; social media and mobile apps.

Join FDLI for the largest networking opportunity for food and drug law professionals. We look forward to seeing you at the 2012 FDLI Annual Conference next week.

FDA Lawyers Blog is a Media Partner of FDLI's 55th Annual Conference.

by Brian Malkin

On March 7, FDA announced in a Request for Comments in the Federal Register a two-day public hearing to obtain feedback and suggestions regarding ways that FDA can modernize its regulations, policies, and practices that apply to the conduct of clinical trials for FDA-regulated products. FDA hopes that with this input it can modernize the regulatory framework that govern clinical trials and form approaches for good clinical practice ("GCP") providing for greater effectiveness and efficiencies in the process.

FDA explained in its Request for Comments that FDA's clinical trial regulations are now more than twenty-five years old and has been showing its age. In the past years, clinical trial management has changed dramatically, including increased size and complexity of clinical trials, increased number of clinical trials performed globally, greater use of contract research organizations ("CROs"), increased participation of "vulnerable" populations (children, individuals with orphan-designated diseases, others), and numerous scientific and technological advances, including increased use of the Internet. FDA has learned in various forums that FDA's current regulations and compliance policies may not facilitate the use of innovative methods to improve clinical trial quality, the Request for Comments observes. For example, CROs or other clinical investigators may continue to use older data collection methods given the uncertainties involved in using new procedures that may not be aligned with FDA's older guidances and recommended procedures.

FDA said that its focus is on good clinical practice, including enhanced clinical protocol design to take advantage of newer technologies to ensure reliability of data, safety surveillance reporting, quality control processes including auditing, data integrity, and human subject protection. FDA is interested in workshops or strategic alliances that may help to encourage the implementation of innovative methods in clinical trials including risk-based methods in the design, oversight, and conduct of clinical investigations.

by Scot B. Pittman

FDA's Center for Veterinary Medicine ("CVM") announced last week that it was restricting the use of certain antibiotics in farm animals. On January 6, 2012, CVM published a final rule in the Federal Register that prohibits certain uses of cephalosporin drugs in food-producing animals. The rule is a modification of FDA's 2008 order banning all extralabel uses of cephalosporins in food producing animals. The roughly 170 comments in response to the 2008 proposal convinced FDA that the ban was too broad.

Specifically, the new rule prohibits certain extralabel uses of cephalosporin drugs in cattle, swine, chicken, and turkey. Included among the prohibitions are:

• Using cephalosporin drugs at unapproved dosage levels, frequencies, durations, or routes of administration;
• Using cephalosporin drugs in cattle, swine, chickens, or turkeys that are not approved for use in those species; and
• Using cephalosporin drugs for disease prevention.

• Extralabel use of approved cephapirin products in food-producing animals;
• Use to treat or control an extralabel disease indication, provided that the use adheres to a labeled dosage regimen approved for that particular species and production class; and
• Extralabel use in food-producing minor species (e.g. ducks and rabbits).

by Brian Malkin

On December 27, FDA issued a draft guidance, "Responding to Unsolicited Requests for Off-Label Information About Prescription Drugs and Medical Devices," which was jointly issued by the Center for Drug Evaluation and Research, the Center for Biologics Evaluation and Research, the Center for Veterinary Medicine, and the Center for Devices and Radiological Health. The Guidance "updates and clarifies" FDA's current thinking and policies for providing unsolicited, off-label information to consumers, including information provided by "emerging electronic media." "Off-label" uses are unapproved or uncleared indications or conditions of use for products that are otherwise approved or cleared by FDA for other uses. Medical professionals with prescribing authority may generally prescribe any product approved by FDA for any conditions or uses, whether FDA approved or not, as part of their practice of medicine.

FDA explained that its rationale for providing the guidance is an effort to balance the desire or need of individuals to obtain additional information about approved products with the potential for a product's manufacturer to provide information that may be viewed as promotional. FDA's Guidance, however, appears motivated, at least in part by a Citizen Petition filed by seven medical product manufacturers asking FDA to clarify FDA its regulations and policies governing communication of new or off-label use of marketed products. According to the Petition, FDA's vagueness regarding permissible manufacturer speech regarding off-label use has significant consequences to manufacturers, the government, physicians, and patients., as we reported here.

As part of FDA's rationale, the Guidance stated that on the one hand, a product's manufacturer typically maintains a large database of information about their FDA-approved products, including information obtained about possible off-label uses that may over time become the medically-recognized standard of care. On the other hand, a manufacturer's statements that promote their products for off-label uses are considered potential evidence of a manufacturer's illegal intent to promote its products for those off-label uses or conditions. FDA also recognizes that the Internet with its emerging news sources, such as social media or chat rooms, provides additional opportunities for consumers to seek medical information and receive information that is both accurate and useful or biased and otherwise inaccurate from product manufacturers or third-party sources.

by Scot B. Pittman

On November 7, FDA denied two citizen petitions related to the use of certain antibiotics in food animal production. A 1999 Petition, submitted on behalf of the Center for Science in the Public Interest ("CSPI"), the Environmental Defense Fund, the Food Animal Concerns Trust ("FACT"), the Public Citizen's Health Research Group, and the Union of Concerned Scientists, and a 2005 Petition, submitted on behalf of Environmental Defense, the American Academy of Pediatrics, the American Public Health Association, and the Union of Concerned Scientists, requested that FDA rescind its approval of the non-therapeutic use in livestock of any antibiotic used in (or related to those used in) the treatment of humans. Such antibiotics include penicillins, tetracyclines, aminoglycosides, streptogramins, lincomycins, and sulfonamides. According to the petitions, the widespread use of these antibiotics in livestock for disease prevention/control and growth promotion causes a significant increase in the amount of antibiotic resistance in human pathogens.

In its responses (Response to 1999 Petition and Response to 2005 Petition), FDA recognized the concern about using medically important antibiotics in livestock but denied the petitions on statutory grounds. According to FDA, the withdrawal of new animal drug approvals requires providing the new animal drug sponsor with notice and an opportunity for a formal evidentiary hearing. As there have been no formal evidentiary hearings on this matter, FDA determined that it could not mandate a withdrawal and denied the petitions.

To the extent that the petitions asked FDA to initiate formal withdrawal proceedings, the Agency denied those as well. FDA cited its previous experience with formal proceedings and concluded that they were typically overly time consuming and expensive. FDA defended these denials by referencing its 2010 draft guidance, "The Judicious Use of Medically Important Antimicrobial Drugs in Food-Producing Animals," as an alternative way to ensure safer uses of antibiotics in livestock.

by Fitz Beckwith Collings

The U.S. District Court for the middle district of Florida dealt FDA a setback in U.S. v. Franck's Lab, ruling that the agency did not possess the statutory authority to regulate the traditional compounding practices of veterinary pharmacies.

Franck's Lab is a large, Florida-based compounding pharmacy. In 2009, Franck's was responsible for the deaths of 21 Venezuelan national polo team ponies. The deaths were traced to a mathematical error made by one of Franck's prescribing veterinarians during the compounding process. The resulting solution of Biodyl proved too potent, and the Florida Board of Pharmacy imposed fines and reprimanded Franck's. After this incident, FDA expressed concern that Franck's compounded a number of the drugs at its facility outside the context of a valid veterinarian-client-patient relationship. The scope and scale of Franck's production, combined with the alleged lack of a veterinarian relationship, led FDA to conclude that Franck's was operating as a drug manufacturer.

Under Florida state law, pharmacists are permitted to compound a medication when a veterinarian prescribes it for an individual patient. This process enables the veterinarian to tailor the medication to the animal's needs, e.g., by accounting for allergies to ingredients in commercially-available medications. Franck's routinely prepared quantities of compounded medications from bulk substances in the absence of a prior prescription by a veterinarian, with the expressed purpose of maintaining a sufficient supply for new customers. FDA ultimately sought to enjoin Franck's from compounding any quantity of veterinary pharmaceuticals from bulk substances indefinitely - a first for the agency - unless Franck's obtained FDA approval as a drug manufacturer. The central issue in the case was whether the Food, Drug and Cosmetic Act (as originally enacted in 1938) conferred to FDA the authority to enjoin Franck's from engaging in traditional veterinary compounding.

The Food and Drug Law Institute's ("FDLI's") Annual Conference starts in just two weeks in Washington, D.C. on April 5-6. As media partner for the program, FDA Lawyers Blog knows the importance of attending this Annual Conference each year.

The Conference is packed full with a range of topics including: a report-out from the Government Accountability Office, the new Consumer Product Safety Commission (CPSC) product safety database, Drug Enforcement Administration (DEA) scheduling, global supply chain integrity, nutrition label regulations and biosimilars regulation.

For more than 50 years, FDLI's Conference has provided the venue for food and drug law professionals to discuss and debate emerging topics, as well as participate in great educational sessions At this year's event, attendees will hear directly from FDA leadership including Commissioner Hamburg, Chief Counsel Tyler and FDA's six product center directors.

Thank you for your support of the FDA Lawyers Blog. We look forward to seeing you at the 2011 FDLI Annual Conference.

Register for the FDLI Annual Conference here.