Articles Posted in Generics

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Congress passed the Food and Drug Administration Amendments Act of 2007 (“FDAAA”) to give the U.S. Food and Drug Administration (“FDA”) new authority to regulate the safety of marketed drugs. As part of this authority, FDA may require drug companies to propose and implement Risk Evaluation and Mitigation Strategy (“REMS”) for certain drugs whose risk- benefit profiles warrant safety measures beyond professional labeling. FDA may require REMS as part of the approval of a new drug or biologic (brand or generic), or for an approved product when new safety information arises. If FDA determines that a drug has been shown to be effective but is associated with an adverse drug experience, the FDA will require that the REMS have elements to assure safe use (“ETASU”). An example of an ETASU is that health care providers who prescribe the drug have particular training or experience or are specially certified.

The FDA, Federal Trade Commission, and generic drug manufacturers have raised concerns that branded drug manufacturers could be using REMS to impede generic competition. One concern is that branded companies may use REMS distribution restrictions to deny generic companies the drug samples they need to conduct necessary testing and otherwise meet the requirements for generic drug approval. Another concern is that branded drug firm may abuse situations where FDA approval of a generic drug is conditioned on the utilization of a single, shared ETASU by both the generic and branded companies. Essentially, the concern is that branded firms are impeding negotiations of a single, shared ETASU in order to delay generic entry.

To address these concerns, the Senate Judiciary Committee introduced Creating and Restoring Equal Access to Equivalent Samples (CREATES) Act of 2016 on June 14, 2016. The bill—co- sponsored by Senators Grassley (R-IA), Klobuchar (D-MN), Leahy (D-VT), and Lee (R-UT)— permits a generic manufacturer to sue the branded manufacturer if: (1) the branded manufacturer fails to “provide sufficient quantities of [a drug sample] on commercially reasonable, market- based terms”; or (2) branded and generic manufacturers are unable to develop single, shared ETASU after 120 days of initiating a request to develop a shared ETASU. The relief contemplated in the bill is (1) a court order that the brand company provide the drug sample or the brand and generic develop single, shared ETASU or generic firm join a pre-existing ETASU; and (2) monetary award.

drugs.pngOn January 6, 2014, FLH Partner Brian J. Malkin was quoted in an article by Derrick Gingery in The Pink Sheet entitled “Generic Drugs 2014: OGD Creates Internal Review Goals, May Make OND-Inspired Changes”.

Gingery’s article focused on FDA’s Office of Generic Drugs (“OGD”) taking steps to meet review deadlines that will be imposed by the Generic Drug User Fee Act (“GDUFA”), and enacted by the Food and Drug Administration Safety and Innovation Act (“FDASIA”) of 2012. For example, sixty percent of all applications accepted for filing in fiscal year 2015 must be reviewed within 15 months, which is included in a GDUFA commitment letter. According to the article, as of December 1, 2013, OGD’s project managers started setting internal goals to help reviewers get used to a review clock–a new concept for OGD but something that has been around since the Prescription Drug User Fee Act (“PDUFA”) first implemented in the 1990s for FDA’s Office of New Drugs (“OND”). Acting OGD Director Kathleen Uhl, M.D. (“Cook”) commented there, “We need to have all the reviewers practice the review to a goal date and then we need to monitor what’s our predictability of meeting those goal dates.” Uhl also told Gingery that the “primary purpose” of the goal dates was to help OGD determine the time it will take to complete various parts of the abbreviated new drug application (“ANDA”) reviews and would not be shared with sponsors.

Malkin was asked to comment on the internal goals, which appeared in the article as follows:

Attorney Brian Malkin, of Frommer, Lawrence and Haug LLP, agreed that the internal goals likely would not be helpful to sponsors.

“They’re not going to be able to react to FDA’s deadlines unless FDA shares additional information with them, except perhaps to set some of their own timetables for what FDA may be doing on their end,” Malkin said in an interview.

Malkin said the aim appears to be finding areas where the process can become more efficient.

“It’s tied to FDA’s realistic expectations of what they can do to meet their timeframes, but also … it may not be exactly what industry thought they were getting,” he said. “The concept would suggest shorter review times, but we’ll have to see.”

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troubleswallowingpills.pngOn December 9, 2013, FDA issued a new draft guidance: Size, Shape, and Other Physical Attributes of Generic Tablets and Capules. FDA said that it issued the guidance because it is concerned that patients perceive differences in the physical characteristics (e.g., size and shape of a tablet of capsule) of generic drugs in relation to its referenced listed drug (“RLD”) counterpart. FDA believes that these perceived differences are “important” and “may affect patient compliance and acceptability of medication regimens or could lead to medication errors.” FDA does not plan for the Guidance to apply to generic drugs that are already on the market, unless there are safety issues, or other oral dosage forms.

According to the Guidance, many individuals have difficulty swallowing tablets and capsules, perhaps as many as 40 percent of Americans. Of these individuals, most blamed the dosage form size as an issue. In some instances, the larger tablets or capsules have been “shown to prolong esophageal transit time,” which may lead to disintegration of the product in the esophagus or cause injury to the esophagus, or more general adverse events such as pain, gagging, choking, and aspiration. In the industry, these larger tablets or capsules have been called “horse pills.” Some tablet and capsule shapes are known to be easier to swallow and have faster esophageal transit times than similar dosage forms with the same weight, e.g., oval sizes are easier to swallow than round. In turn, patient compliance may be affected by the size and shape of a tablet or capsule. Other physical attributes that affect ease of swallowing include coatings, weight of the tablet or capsule, and surface area of the dosage form.

As a result, FDA recommends that as part of its quality initiatives for generic drug products, generic oral tablets and capsules should be of a similar size to their corresponding RLD. In particular:

  • If the RLD is less than or equal to 17 mm in it largest dimension, the generic product should be no more than 20 percent larger than the RLD in any single dimension (resulting dimention not to exceed 17 mm) and no more than 40 percent larger than the RLD in volume.
  • If the RLD is greater than 17 mm in its largest dimension, the generic product should be no larger than the RLD in any single dimension or volume.
  • We recommend the largest dimension of a tablet or capsule should not exceed 22 mm and that capsules should not exceed a standard 00 size

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FDA.bmpFDA issued a draft guidance Wednesday that provides its recommendations for generic-drug makers seeking to show bioequivalence to a reference listed drug. The document–Bioequivalence Studies with Pharmacokinetic Endpoints for Drugs Submitted Under an ANDA–does not represent a significant change or shift in FDA policy/opinion, but it covers many approaches and revises and replaces parts of two existing FDA Guidances (see here and here). And, most notably perhaps, the document is a consolidation of many of FDA’s previous opinions and guidances on establishing bioequivalence that concludes with an attachment providing a summary of general approaches for the design and data handling of bioequivalence studies with pharmacokinetic endpoints. The document should provide would-be generic-drug applicants with a good starting place.

FDA’s advice is very general, as the Agency states that companies should see FDA’s product-specific guidances for information on individual drugs. But despite the lack of product-specific advice, the guidance provides significant detail about common study parameters. FDA starts with a general discussion of how best to establish bioequivalence. The Agency notes that applicants can establish bioequivalence using in vivo and/or in vitro methods, which include–in descending order of preference–pharmacokinetic, pharmacodynamic, clinical, and in vitro studies.

Regarding pharmacokinetic studies, FDA suggests that applicants use: (1) a two-period, two-sequence, two-treatment, single-dose, crossover-study design; (2) a single-dose-parallel-study design; or (3) a replicate-study design. To establish bioequivalence from the studies, FDA urges applicants to use the average bioequivalence method of analysis. The guidance provides that, if possible, the study population should consist of enough subjects–18 years and older and representative of the entire population, considering age, sex, and race–to provide adequate statistical power.
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genericdrug.jpgFDA is proposing to amend its regulations to permit generic drug companies to add or strengthen safety warnings in labeling of their products on the basis of newly acquired safety information, even before the Agency has approved this safety information in the labeling of corresponding brand name drugs.

Under current rules, a generic drug must have the “same labeling” as its reference listed drug. This prevented an ANDA holder from inserting or altering a safety communication unless and until FDA has approved this information in the labeling of the brand name drug.

The purpose of the amendment is to “level the playing” field for generics, which arises from two conflicting Supreme Court decisions involving Federal preemption of safety warnings in prescription drug labeling. In Wyeth v. Levine, the Court held that a failure to warn claim in a Vermont personal injury action was not preempted by FDA labeling regulations, because the brand name drug company could have voluntarily amended its labeling to include a stronger safety warning even if FDA had not approved it. In contrast, the Court subsequently held in Pliva v. Mensing that a state failure to warn claim was preempted by FDA-approved labeling, since the generic company could not unilaterally add or strengthen its warning due to the same labeling requirement.
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gpha-headerLogo.gifDay 2 of the Generic Pharmaceutical Association (“GPhA’s”) annual Fall Technical Conference focused on RTR issues, FDA’s efforts to update the inactive ingredient database, stability, Uhl’s OGD update, and closing remarks.Some of the key take aways for RTRs is that once year three of GDUFA kicks in, FDA will take a closer look at RTR issues such as DMFs, which need to be accepted for referencing rather than just filed prior to the ANDA. In the past, many sponsors had filed their ANDAs close in time–and sometime simultaneously–with the ANDA to prevent competitors and referenced drug holders alike from suspecting their ANDA filing in advance of a patent challenge notice. Now FDA is recommending that DMFs be filed at least six months in advance to permit a completeness assessment for filing. FDA’s recommendation is based on an observation that it typically takes between two to five months for DMF holders to address submission deficiencies.

Johnny Young, M.A.L.A., Regulatory Health Project Manager, OGD, explained that OGD has been viewing excipients more critically than before, e.g., ophthalmic drugs need to be Q/Q even though the current regulations provide certain exceptions, based on what has been learned. Young also noted that there are new microbiology and stability requirements for ANDA that may also lead to RTRs, and he recommended that industry take a careful look at the new RTR guidance as well as ANDA checklist, which is regularly updated. Representing industry’s viewpoint, Robert Pollock, M.S., R.Ph., Senior Advisor and Member of the Board, Lachman Consultant Services, Inc. said that the proposed five-day turn around to remedy a RTR prior to its issuance (from the current 10-day scheme) may prove to be difficult for industry to meet. Pollock also thought that it would be important for ANDA applicants to submit higher-quality ANDAs at the onset rather than hoping to fix them later, even when there is a rush to be the first patent challenger for 180-day exclusivity, because a RTR could remove that incentive.

During a question-and-answer period, FDA explained that its new RTR guidance put into writing many of the policies it had been following, so not that much in it was particularly new. Ian Margand, R.Ph., Regulatory Support Management, OGD, explained that for GDUFA to work, ANDA applicants have to take a greater responsibility for their DMF holders. In particular, ANDA applicants need to provide time for their DMF holders to provide an adequate DMF for their ANDA to be filed. Regarding labeling carve-outs to attempt to avoid certain Orange Book-listed patents with method-of-use claims or unexpired exclusivity, Young said that like other RTR issues, FDA will provide ANDA applicants with five days to fix prior to receiving an RTR, if the carve out is not in line with the Agency’s expectations of appropriate carve outs.
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gpha-headerLogo.gifOn October 29-30, 2013, the Generic Pharmaceutical Association (“GPhA”) held its annual Fall Technical Conference that featured a Keynote by Director, Center for Drug Evaluation and Research (“CDER”), Janet Woodcock, M.D., the Acting Office of Generic Drugs (“OGD”) Kathleen “Cook” Uhl, M.D., and a variety of other FDA and industry speakers. While the Conference included typical fare such as bioequivalence issues, a predominant topic was FDA’s implementation of the Generic Drug User Fee Act (“GDUFA”).

Starting with Woodock’s Keynote, her message was OGD’s reorganization, including the development of the Office of Product Quality (“OPQ”) to help drive home the message that abbreviated new drug applications (“ANDAs”) need to be high quality for OGD to meet its GDUFA goals. Some of the changes Woodcock spoke about included reviewing generics by dosage form by specialized groups and centralizing elements of the generics program in 2015: microbiology, project management, and a policy office with policy functions for chemistry, manufacturing, and controls, quality issues, and inspections. Woodcock described OGD as having assembled “SWAT teams” to handle specific types of ANDA applications in the backlog, noting that next year will be critical to control the backlog before GDUFA measures kick in 2015.

Next a barrage of quality presentations from FDA and industry followed, emphasizing the need to develop quality metrics, methods to develop internal audit programs to continuously monitor identified quality issues, and FDA’s expectations for quality going forward. FDA said that Quality by Design (“QbD”) needs to be second nature, focusing on metrics that are clinically relevant to patient safety and health. Some metrics suggested included: batch/lot failure rates (rejected, reworked), right the first time, demonstration of active pharmaceutical ingredient/excipient compatibility and stability, and standards for sampling/acceptance plans. Rather than just include passing bioequivalence studies, FDA explained that sponsors need to explain how they arrived at a bioequivalent drug product and their scale-up plans.
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FLH Partner Brian J. Malkin will join more than 700 generic industry professionals and FDA staff who attend the Generic Pharmaceutical Association’s (“GPhA’s”) Fall Technical Conference in Bethesda, Maryland from October 28-30, 2013. This unique educational conference has become the vehicle for key FDA officials to disclose and discuss the key regulatory and technical issues affecting pending or yet-to-be-filed generic products. Here, more than a dozen top FDA officials, including a keynote from the Director of the Center for Drug Evaluation and Research (“CDER”), Janet Woodcock, M.D., and panel discussions will discuss the issues affecting the generic drug industry and ultimately innovators and all of us in FDA regulatory affairs in a meaningful way.

Topics to be discussed include:

• The impact of the Generic Drug User Fee Act (“GDUFA”)

rapaflo.jpgEarlier this month, FDA denied a Citizen Petition filed by Watson Laboratories Inc. (now part of Actavis, Inc. or “Actavis”) on May 10, 2013, requesting that FDA deny any abbreviated new drug applications (“ANDAs”) it receives for a generic version of Rapaflo® (silodosin) Capsules unless the applicant demonstrates bioequivalence for both silodosin and its metabolite KMD-3213G. Watson requested that bioequivalence for both the drug and its metabolite be measured using a strict statistical evaluation of the standard pharmacokinetic measures of area under the plasma concentration-time curve (“AUC”) and peak drug concentration (“Cmax”). Watson further requested that FDA revise its draft guidance on bioequivalence testing for silodosin capsules to require a demonstration of bioequivalence for both silodosin and KMD-3213G.

On October 8, 2008, FDA approved Watson’s new drug application (“NDA”) for Rapaflo®, 4 mg and 8 mg, indicated for the treatment of the signs and symptoms of benign prostatic hyperplasia (“BPH”). BPH is a noncancerous enlargement of the prostate that makes urination difficult and uncomfortable. Sandoz Inc. (“Sandoz”) recently filed an ANDA for generic Rapaflo®.

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Written by Shelly Fujikawa. Ph.D

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Silodosin is an alpha-1 adrenergic receptor antagonist and undergoes extensive metabolism. Its main metabolite is a glucuronide conjugate, KMD-3213G, which has been shown in vitro to be active. KMD-3213G has an extended half-life (approximately 24 hours) and reaches plasma exposure approximately four times greater than that of silodosin.
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refusetoreceive.pngOn September 30, 2013, before the federal government shut down hit, FDA published a new guidance, “ANDA Submissions-Refuse-to-Receive Standards“. FDA’s guidance explains many of the principles that have been articulated in FDA’s “ANDA [Abbreviated New Drug Application] Checklist for Completeness and Acceptability of an Application” (“ANDA Checklist”), which is reviewed quarterly basis (calendar year) and updated on an “as needed” basis. The Guidance reported that refusal-to-receive decisions (“RTRs”) “underscore the need for improvement in the quality of original ANDAs.” Between 2009 and 2012, FDA’s Office of Generic Drugs (“OGD”) refused to receive 497 ANDAs, the Guidance explains. RTRs occurred with regard to original submissions, in 2009 – 12%; 2010 – 18%; 2011 – 15.5%, and 2012-9.4% (estimated). The most common reasons for RTRs included serious bioequivalence deficiencies and serious chemistry deficiencies, with other lead causes being format or organizational flaws, clinical deficiencies, and inadequate microbiology. As a result, FDA believes that it would help to clarify its RTR criteria to help improve ANDA quality.

First, FDA noted that as part of its threshold determination for filing, FDA reviews ANDAs following the ANDA Checklist, which is formatted to mirror the organization of the Electronic Common Technical Document (“eCTD”). As a matter of general policy, FDA will notify an applicant if it will issue a RTR and provide the applicant with the opportunity to withdraw its ANDA, amend to correct the deficiencies, or take no action. FDA intends to work with applicants if there are fewer than ten minor deficiencies, with such notification by phone, e-mail, or facsimile. If the applicant can correct the deficiencies within five business days and FDA so finds, then FDA will still receive the application from its original receipt date; if not so corrected, FDA will RTR the application. FDA will issue an RTR, however, if the application contains more than ten minor deficiencies or one or more major deficiencies.

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Written by Brian J. Malkin