Making A Move To The Hamptons

luxury home for sale

Live Like A Celebrity And Move To The Hamptons

Given that it is such a brief travel from New York or even New Jersey, the unbelievable amount of natural beauty that exists here in East Hampton is extremely astonishing. If you haven’t been here, there are these long stretches of blue Coast lines that are flowing with golden sands. In addition, the natural landscapes that exist, there are also plenty of city parks that unite to form one of the most relaxing and breathtaking destinations along the upper East Coast. If you live near here and you have money, then you know about the Hamptons! There are mega movie stars and musicians that own beautiful property here, which as a result has attracted fantastic restaurants and dining establishments for those that like the finer things in life. There are posh boutiques popping up all over town, and despite its prevalence, however, East Hampton has worked tirelessly to keep its village-like charm, something you will quickly if you visit on vacation or decide to move to the Hamptons. There are few moving companies we trust in New York and New Jersey to move families into the Hamptons, but the team at Bluebell Moving And Storage has proven time and time again that they are the East Coasts premier moving agency for the upper class on the East Coast

As A New Resident Prepare To Shop And Surf The Hamptons

Due to its astonishing landscape, perfect location, and natural abundance of awesomeness, East Hampton has a lot of activities for you to get into once you move to the Hamptons. Main Beach is the biggest attraction for a lot of East Hampton locals and visitors. Believe it or not, it is among some of the best-ranked shorelines in the country, but it is more than just a place to relax on the beach and soak in some sun rays. Main Beach hosts many of the college’s water sports competitions, there is surfing, biking, paddle boarding, body surfing, and boogie boarding. Those of you that prefer spending money on fashion, you will love what Main Street has to offer, with its fashionable posh boutiques, they cater to the upper class that has money to spend on the nicer things in life. If that is not you, don’t bother moving here because poor people don’t fit in.

Embrace The Lavish Culture Of The Hamptons

If you can tear yourself away from the shore, the city of East Hampton has lots of family-friendly attractions to check out during the day and in the evenings. One of the true gems of Long Island is LongHouse Reserve. The beautifully maintained garden stretches 16 acres across the Hamptons and is filled with amazing eye-catching stone sculptures. The Pollock-Krasner House (once home to the artists Jackson Pollock and Lee Krasner) is just another location that civilization aficionados will not want to miss out on checking out, true history at it’s finest. Folks of all ages will love the fascinating tour, and children will love making their very own Pollock-style drip paintings. Living in the Hamptons offers so many great things to enjoy, and those are just a few. Becoming culturally aware of art and the area will be necessary if you are going to fit in here.

If You Are Lucky Enough To Buy Shorefront Property

If you are lucky enough to buy shorefront property you better soak it up! Most families that buy into this luxury area don’t give up their property that easy. move to the hamptons - family home in east hamptonHouses and land are passed down through the generations over the years and children and grandchildren are often left with vacation homes they rather not sell. The experience living on the shore is unforgettable. Even though the months of June through August are the nicest, September is also a fantastic time to enjoy some good sun and good times. If you are not a sun worshiper, late spring is also an amazing time of year. Temperatures are somewhat milder, but East Hampton nonetheless retains its magical, village-like vibe. For those that want to move to the Hamptson this vibe is priceless, for visitors making a vacation of the Hamptons, they often times do not want to leave!

If You Make The Move To The Hamptons Enjoy The Parks

When you move here you may find that there is an overwhelming amount of things to do at first. Moving in, unpacking, finding your way around and all that fun stuff. But after you get settled, you need to check out the Hampton Parks. East Hampton is home to no less than 8 country parks and two county parks, with Cedar Point County Park being the most popular destination among local residents and out of town visitors. It encompasses over 600 acres of coastal beauty and is famous for its magnificent views of Gardiner’s Bay. There is an abundance of things to do such as fishing, hiking, biking, and playing in the park. Additionally, It plays host to a rich ecosystem of wildlife together with everything from deer to ducks. There are also designated dog areas for the dog lovers of the Hamptons. The rich love their poodles and purse dogs, there is no shortage of those dogs here in our parks. Locals take pride in their parks and we ask that if you move to the Hamptons that you bring your dog out to enjoy the natural beauty with you that you clean up after your animal if they poop in the park grass.

READ: New Jersey Proposes New Limits……

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Why You Need Orthodontic Insurance Coverage

Why You Need Orthodontic Insurance Coverage

Insurance insures help patients when they want financial aid to obtain the needed service and have a difficulty. Such policies are used by them as a threat coverage tool, and one main policy folks take, is orthodontic insurance if they have been aware about their oral health. Correcting abnormalities and dental issues like misaligned or damaged teeth can improve grin and an individual’s facial features. Sadly, the prices can bite difficult in the lack of quality insurance. Dental treatment from Sky Orthodontist Oklahoma City changes among individuals so, the adolescents; therefore, many parents are under pressure in the adolescents who need to wear good looking braces.

Things become a lot simpler as the cover protects all processes and gear when you’ve got insurance insuring an orthodontist’s treatment. Check whether the policy contains coverage of treatment if you’ve got an existing dental insurance. Should it not have, then contemplate purchasing a supplementary form especially for this to cover your treatment prices. It’ll save you big time if you’ve got family members that want braces or treatment.

Just like your dental or insurance coverage that is routine, you’ll need to pay a monthly or annual premium. More than a few companies pay as much as fifty percent of the overall care expenses. So, if treatment is required by some of your nearest and dearest at once, your financial weight can ease significantly.

A bulk of the expenses come from the price of gear used in the restoration procedure like other additional dental products, braces, and retainers. The price of dental x rays, allowances that are needed, and monthly visits influence the amount being spent on treatment making it higher as opposed to dental care services that are routine. Averagely, the supplier to cater up to a specific quantity of dental care per year after which the maximum annual sum for all the dental prices become your company was just wanted by the typical dental cover.

In several cases, such processes are seen by individuals as being just decorative thus resulting in just several insurance companies providing cover for such a treatment services.

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Is It Necessary To See A Dentist Frequently?

Is It Necessary To See A Dentist Frequently?

The prevention of periodontal disease, cavities, and bad breath is reached with oral direction techniques which are powerful and affordable, easy to perform on a daily basis. A professional should be consulted or more often depending on significant care attempts and dental demands. Dentist OKC offers complete oral health care services to patients to help in the care of a cavity grin that is free. Personal wellness techniques and advanced oral technology are supplied according to individual conditions.

The oral evaluation can discover changes and tooth issues in tissues indicative of major ailments including cancers and diabetes. Some of the most significant measures that people can take to maintain the healthy state of teeth would be to see with the dental offices frequently. A routine checkup contains the detection of tartar, plaque and cavities in charge of gum disease and tooth decay. The formation of a failure and bacteria can improve discoloration, oral deterioration and decay. A failure to correct oral issues including little cavities may lead to important destruction of tissue and enamel including tooth loss and acute pain.

A dentist will counsel patients on easy and affordable suggestions for health care care that is individual to grow strong teeth and gums. This can be a simple and affordable method shield the state of oral tissues and to prevent cavities. Specialized tools are integrated at the practice to supply a professional clean and accomplish places that cannot be reached with flossing and brushing. It shields against spots and decay that undermine the healthy state of pearly whites. A dental practice provides complete oral care helping in treating gum and tooth ailments. Meeting an oral professional often and following day-to-day hygiene measures can best protect and improve the state of your grin.

It is important to get it assessed time to time and to take good care of your dental health and stay healthy. Google “oral health”  if you want to learn more about the oral health.

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Things To Look For In An Attorney Before Hiring Them

Things To Look For In An Attorney Before Hiring Them

Permit me to start by saying that do it yourself has its limitations. Certainly, contracts can be drafted by you by yourself, it is possible to survive discussions that are grotesque with your company customers, a married dispute can be settled by you but you should get an attorney when the demand to come to court appears. Expenses will be incurred, professional fees must be paid and the normally drawn-out procedure must be born. The prices of solving a difficulty are much greater in relation to the prices of preventing the issue. However, hiring a Sugar Land criminal defense attorney can eliminate the complexity, who knows what needs to be done.

When locating a lawyer so, search for a “competent” attorney. Before you start to share your innermost secrets together it’s absolutely ethical to require a lawyer permit. Generally though, their certifications would hang. He may be a professional in any among the following types of law: taxation law, labor law, civil law, international law, litigation, or criminal law. These are the important types. Therefore, you may learn of an immigration lawyer or a litigation attorney. Note however, that attorneys’ specialties are “obtained” through expertise, not only because they believe they have been excellent at it.

This can be one facet of being a lawyer where a youthful, inexperienced attorney can in fact get ahead of a seasoned one. Young attorneys usually are sympathetic, encouraging and lively. They have a tendency to treat their customers like their infants. They take care of every small detail, even the ones that are unimportant. But this just is paying customers desire to be treated. Customers often believe that they’re getting their money’s worth with the type of focus they can be becoming.

The personal qualities to try to find in a New Hampshire personal injury attorney depend significantly on the type of customer you might be. Should you be the no nonsense sort, you may choose to hire an old attorney who is about to retire. These kinds of attorney are interested in what you will need to say. Occasionally, they’re not thinking about what they must say. But their expertise is impeccable. The credibility of an attorney may be viewed in several circumstances. It can be built on charm coupled with referrals from previous satisfied customers. To be sure, no attorney can get customers if he’s not trustworthy and believable.

So at this point you have a credible, skilled and competent injury attorney having the individual qualities you try to find. Another matter to contemplate is whether that attorney can be acquired to attend to your own issue. Your attorney will say he is capable, willing and happy to help you. He said the identical thing to last week, and several others this morning, and the week. The point is, an attorney can only just do so much. He can not all be attending hearings all. He’d likely resort to rescheduling or cancelling hearings and assemblies that are significant to make ends meet. If your preferred attorney has a law firm, there will surely be other attorneys who can attend in case he is unavailable to you personally. You’ll find this satisfactory but not until your case continues to be reassigned to another from one hand.

The representation starts when you meet with your customer. This, nevertheless, isn’t what defines professionalism. So don’t be misled by the attorney-appear alone. It’d be amazing if your attorney can pull it away with the professionalism that is authentic and the attorney appearance though.

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FDA Cracks Down on Reporting Failures

FDA Cracks Down on Reporting Failures

By McKenzie E. Cato & Michelle L. Butler

On April 28, FDA issued its first Notice of Noncompliance for failure to submit required clinical trial results information to  The notice was given to Acceleron Pharma, Inc., for failure to submit the required information following completion of a clinical trial evaluating the safety and effectiveness of the drug dalantercept in combination with axitinib in patients with advanced renal cell carcinoma (see FDA press release announcing the Notice of Noncompliance here).

The database is a public database of clinical studies administered by the U.S. National Library of Medicine.  Section 402(j) of the Public Health Service Act (PHS Act) (42 U.S.C. § 282(j)), enacted via section 801 of the FDA Amendments Act of 2007 (FDAAA), requires that the “responsible party” of an “applicable clinical trial” submit for posting on certain required information, including the study title, study design, start date and estimated completion date, outcome measures, recruitment information, study site locations, and results.

The “responsible party” is the sponsor or principal investigator of the trial.  An “applicable clinical trial” is generally defined to mean any clinical trial (other than a device feasibility trial or a phase I drug trial) to collect data to support an FDA premarket submission, such as a New Drug Application or 510(k) premarket notification.

The results from a completed clinical trial must be submitted for posting in the database no later than one year after the “completion date” of the trial, which is defined to mean “the date that the final subject was examined or received an intervention for the purposes of final collection of data for the primary outcome.”  42 C.F.R. §§ 11.10, 11.44(a).  The implementing regulations provide an alternative option for delayed submission of results information if the responsible party submits a certification that a premarket submission “has been filed or will be filed within 1 year” of the reporting deadline.  Id. § 11.44(b)(1).  If eligible, the responsible party can delay submission of results information until up to 30 calendar days of (i) the FDA approval or clearance date, (ii) the date that FDA ends the review cycle without approving or clearing the product, or (iii) the date that the submission is withdrawn.  However, submission of results information cannot exceed 2 years from the date the certification is submitted, even if FDA has not yet reached a decision on the application.  Id. § 11.44(b)(2).

The PHS Act grants the Secretary of Health and Human Services (HHS) the authority to issue a notice of noncompliance to a responsible party for failure to submit clinical trial information as required, but states that the responsible party should be allowed 30 days to correct the noncompliance and submit the required information.  42 U.S.C. § 282(j)(5)(A)(iii).  The failure to submit clinical trial information to as required is also a prohibited act under section 301(jj)(2) of the Federal Food, Drug, and Cosmetic Act (FDC Act).  This violation is subject to potential civil monetary penalties of up to $10,000 for each day the violation continues.

The database was launched more than 10 years ago in 2008.  However, FDA historically had not enforced the reporting requirements, due in part to HHS’ long delay in issuing implementing regulations.  HHS issued implementing regulations in 2016, almost 10 years after enactment of FDAAA and nearly 6 years after the deadline imposed on HHS (see our blog post here).

In March 2020, an investigative journalist and Peter Lurie, former FDA associate commissioner and president of the Center for Science in the Public Interest, challenged FDA’s failure to engage in enforcement action (see our blog post here).  The District Court for the Southern District of New York found that FDA’s obligation to issue a notice of noncompliance only arises after FDA determines that clinical trial information has not been submitted, but that determination is within FDA’s discretion and FDA had never made such a determination.  Nevertheless, in August 2020, FDA issued a guidance document titled Civil Money Penalties Relating to the Data Bank putting study sponsors and principal investigators on notice that the Agency intended to begin enforcement of reporting requirements.

The April 28th Notice of Noncompliance to Acceleron is noteworthy because it is the first ever issued by the Agency.  The notice alerts Acceleron of “potential noncompliance with the requirement to submit clinical trial results.”  The notice references an earlier July 2020 letter, a “Pre-Notice of Noncompliance,” in which FDA requested that Acceleron review its records and submit all required results information promptly.  As described by FDA, the July 2020 Pre-Notice stated that FDA would conduct further review after 30 calendar days and might take regulatory action.

The April 28th Notice gives Acceleron 30 days to submit the required results information.  The Notice threatens the possibility of civil monetary penalties if Acceleron fails to submit the required information.  As stated in the Notice, in addition to civil monetary penalties, violations may also result in other regulatory action, such as injunction and/or criminal prosecution.

Companies are now on notice that FDA is starting to enforce reporting requirements.  Now that FDA has finally developed its process for assessing noncompliance and issuing notices to responsible parties, we can expect to see additional notices posted in the near future.

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I Hear You Knockin’… Preparing for and Managing DEA Inspections (Part 1)

I Hear You Knockin’… Preparing for and Managing DEA Inspections (Part 1)

By Larry K. Houck

Observers can be forgiven for thinking that the Drug Enforcement Administration’s (“DEA’s) primary focus is suspicious controlled substance orders or pharmacists’ “corresponding responsibility.”  While these areas have been the subject of increased enforcement activity because of the national opioid epidemic, DEA registrants should not forget that at the local level compliance with the Controlled Substances Act (“CSA”) and DEA regulatory requirements on recordkeeping, reporting and security remain an Agency priority.  Granted COVID has impacted regular DEA inspection schedules for most local DEA offices, but that is likely to change in the coming months.

Maintaining complete and accurate records with direct, ongoing oversight by management reduces risk of internal employee pilferage and maximizes potential for early detection should diversion occur.  Recent Department of Justice (“DOJ”) press releases continue to show evidence of reported registrant civil settlements with the Government alleging recordkeeping and reporting deficiencies.  Incomplete and inaccurate records currently subject registrants to civil monetary penalties of up to $15,691 per violation.  28 C.F.R. § 85.5.  Needless to say, monetary penalties add up quickly for multiple violations of the same requirements.

We have also noticed a renewed emphasis on requirements related to remedial compliance programs in these civil settlements, often including a Memorandum of Agreement (MOA) with DEA and in some cases requiring a third-party auditor.  Thus, non-compliance can be very costly, so it is more important than ever to dot every “i,” cross every “t.”

As the nation opens up from the Covid-19 shutdown, and DEA resumes cyclic and on-site regulatory inspections, it behooves registrants to “kick the tires” of their controlled substance recordkeeping, reporting and security.  Management not directly overseeing daily or weekly compliance is always surprised when recordkeeping and reporting deficiencies are brought to their attention during the Agency’s on-site inspections.  The opioid epidemic has led DEA to take a more aggressive approach to cyclic and on-site inspections.  In July 2020, DEA stated as a justification for increasing registration fees that it planned to increase the number of scheduled regulatory inspections and investigations.  Registration and Reregistration Fees for Controlled Substances and List I Chemical Registrants, 85 Fed. Reg. 44,710, 44,716 (July 24, 2020).

We thought this would be a good time to post a series of blog posts focusing on DEA inspections and how registrants should prepare for and manage them, with a list of registrant do’s and don’ts.  While DEA has broad inspection authority under the CSA, registrants need to be aware of the scope and limits of such inspections and be proactive in preparing for and managing inspections.

Part 1 provides background and explains the scope of DEA cyclic and on-site inspections.

A.  Background

Congress enacted the CSA in 1970 establishing a comprehensive statutory framework to prevent the diversion and abuse of legitimate and illicit controlled substances with the Bureau of Narcotics and Dangerous drugs, now DEA, the primary federal agency responsible for enforcement.  The Agency’s mission is to eliminate illicit controlled substances altogether but its responsibilities for legal controlled pharmaceuticals is far more complex.  DEA seeks to prevent, detect and eliminate the diversion of controlled pharmaceuticals while ensuring their availability for legitimate medical, scientific and industrial purposes.  The CSA establishes a closed system of controlled substance distribution that requires every entity in the chain, from importers to manufacturers, distributors, exporters, pharmacies, hospitals, narcotic treatment programs and practitioners, to obtain a DEA registration and account for the controlled substances they handle.  The CSA establishes classifications for drugs based on their potential for abuse relative to their legitimate medical use.  21 U.S.C. § 812.  A drug’s classification, or “schedule,” triggers certain recordkeeping and reporting, registration, quota, and security requirements applicable to each controlled substance.

DEA’s Diversion Control Division is the dedicated unit responsible for regulating legitimate controlled pharmaceuticals and regulated chemicals.  Diversion investigators ensure that registrants comply with the CSA’s regulatory requirements and bring registrants into compliance when they are noncompliant.  DEA can seek administrative action, and working with U.S. Attorney’s Offices, civil or criminal action, against registrants who fail to comply with the CSA and its regulations.  We have also seen increased participation by the DOJ Consumer Protection Branch in DEA investigations and enforcement actions brought against DEA registrants.  See, for example, Federal Court Orders North Carolina Pharmacy, Pharmacy Owner, and Pharmacist-in-Charge to Pay More Than $1 Million and to Cease Dispensing Opioids or Other Controlled Substances, Dec. 17, 2020.

DEA Diversion investigators are primarily responsible for conducting inspections of the regulated industry.  However, more recently, we have observed that DEA special agents are also becoming more involved in investigations of registrants, thus, raising the stakes for compliance.  Also, local task force officers with law enforcement and regulatory agencies have also become increasingly involved in such actions.  Pre-registration and cyclic inspections are critical to DEA diversion investigators ascertaining new and existing registrant compliance with the CSA and DEA regulations.  Diversion investigators and DEA special agents may also conduct targeted investigation inspections which often are accompanied by an Administrative Subpoena or Administrative Inspection Warrant.  We will discuss these actions in more detail in later blog.

It is worth noting that DEA headquarters is actively involved in establishing annual workplans for the DEA local offices identifying certain  “non-practitioner” registrants (manufacturers, distributors, importers, exporters, narcotic treatment programs) for local diversion groups to inspect during the year within their geographic region.  This ensures that every non-practitioner registrant is inspected periodically.  Beginning about 2009, DEA “intensified its regulatory activities to help the registrant population better comply with the CSA and to identify those registrants who violated the CSA and implementing regulations.”  Controlled Substances and List I Chemical Registration and Reregistration Fees, 76 Fed. Reg. 39,318, 39,324 (July 6, 2011).  At that time, DEA began conducting more frequent scheduled investigations of “non-practitioners.” Id.

Then-Administrator Michele Leonhart, testifying before the House of Representatives Committee on Energy and Commerce’s Subcommittee on Commerce, Manufacturing and Trade, affirmed the Agency’s “renewed focus on regulatory control [that] has enabled DEA to take a more proactive approach on multiple fronts to ensure that DEA registrants are complying with the Controlled Substances Act and implementing regulations.”  Warning: The Growing Danger of Prescription Drug Diversion Hearing Before the Subcomm. On Commerce, Manufacturing and Trade of the H. Comm. On Energy and Commerce, 112th Cong. 6 (2011) (statement of Michele M. Leonhart, Administrator, DEA, Department of Justice).  Since that time, DEA has undertaken initiatives addressing the current opioid abuse epidemic, including moving its focus from prescribers as controlled substance gatekeepers to patient access up the chain to pharmacies, distributors and manufacturers.

Non-practitioner registrants can expect DEA investigators to inspect their controlled substance operations about once every three years, and Drug Addiction Treatment Act (“DATA”)-waived practitioners (physicians who are administering, dispensing, and prescribing specific FDA-approved controlled substances for narcotic addiction treatment) approximately once every five years.  However, although non-practitioners are not subject to routine cyclic inspections, we are aware of local DEA offices conducting random inspections of pharmacies, hospitals, veterinarians and other non-practitioners.  We expect this trend to continue.

B.  Scope

The CSA authorizes DEA investigators and agents to inspect “controlled premises,” defined as places where registrants “may lawfully hold, manufacture, distribute, dispense, administer, or otherwise dispose of controlled substances or listed chemicals or where records relating to those activities are maintained.”  21 U.S.C. § 880(a)(2).  Investigators and agents can inspect and copy acquired records and reports; inspect finished and unfinished drugs, equipment, containers, labeling, processes and controls.  Investigators may inventory controlled substances on-hand and take samples.  21 U.S.C. § 880(b)(3).  They are not authorized to inspect financial data, sales data other than shipment and transaction data, or pricing data unless the registrant provides written consent.  21 U.S.C. § 880(b)(4).

Investigators also typically request personal information about officers and employees with access to controlled substances, employee background checks and policies/procedures.  While this information is not specifically required to be maintained by the CSA or the regulations, it is relevant for assessing the registrant’s ability to comply with the recordkeeping, reporting and security requirements.


Part 2, scheduled for posting in about two weeks, will explain the DEA inspection process and how registrants should prepare for and manage inspections.  Lastly, Part 3 will provide our list of DEA inspections do’s and don’ts for registrants.

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The Good, the Bad and the Ugly: New Legislation Would Reform the ANDA Suitability Petition Process and Require Timely Assignment of 505(b)(2) NDA Therapeutic Equivalence Evaluation Codes (“the Good”)

The Good, the Bad and the Ugly: New Legislation Would Reform the ANDA Suitability Petition Process and Require Timely Assignment of 505(b)(2) NDA Therapeutic Equivalence Evaluation Codes (“the Good”)

By Kurt R. Karst

Over the past few days there’s been an avalanche of FDA-related legislation introduced in both the U.S. House of Representatives and the U.S. Senate.  Some of the bills introduced are related to a House Judiciary Antitrust Subcommittee hearing, titled “Addressing Anticompetitive Conduct and Consolidation in Health Care Markets,” while others found their way into the Bill Hopper because of a renewed interest in Congress to address drug prices (see a recent U.S. Government Accountability Office report here).

As we perused the bills, we sorted them into three categories: the Good, the Bad, and the Ugly.  Today, we’ll address a couple of bills that fit Clint Eastwood’s role as “the Good” in the 1966 Italian epic spaghetti Western film, “The Good, the Bad and the Ugly.”  In another post or two, we’ll address those that fit the role of Lee Van Cleef as “the Bad,” and Eli Wallach as “the Ugly.”

Both bills – S. 1462, the “Simplifying the Generic Drug Application Process Act,” and S.1463, the “Modernizing Therapeutic Equivalence Rating Determination Act” – were introduced by Senators Bill Cassidy, M.D. (R-LA) and Tina Smith (D-MN) “to speed the development of and improve access to lower-cost generic drugs” by making changes to the FDC Act and 505(b)(2) NDA approval pathway, “which will make it easier for generics to come to market driving up competition and driving down drug prices,” according to a press release announcing the introduction of the bills.  While we’re pretty excited about the changes both bills would make to the law, we’re particularly stoked about S. 1462, the “Simplifying the Generic Drug Application Process Act.”

Simplifying the Generic Drug Application Process Act (S. 1462)

For years we’ve been critical of FDA’s ability (or rather, inability) to timely rule on ANDA Suitability Petitions.  Suitability Petitions permit the submission of an ANDA that differs from an NDA-approved listed drug in strength, dosage form, route of administration, or active ingredient (in a combination drug).  But until FDA approves a Suitability Petition, an ANDA cannot be submitted to the Agency for the proposed change.  Although the statute requires FDA to approve or reject a Suitability Petition within 90 days of receiving the petition, FDA very, very rarely meets that deadline.  Instead, FDA takes several years to rule on a Suitability Petition, by which time there may no longer be much of any interest (or value) in marketing the proposed generic drug product.  Indeed, back in 2014, we put together a review of more than 1,300 ANDA Suitability Petitions submitted to FDA since the enactment of the 1984 Hatch-Waxman statutory provision creating them.  That analysis (here) shows that FDA has been largely unable to meet the mandatory statutory 90-day goal of approving or disapproving a petition.

Despite FDA’s historical policy of not ruling on ANDA suitability petitions within the statutory deadline, leading to a loss of faith in the process itself, FDA, in August 2013, published a Manual of Policies and Procedures (“MaPP”) – FDA, Manual of Policies and Procedures, Office of Generic Drugs: ANDA Suitability Petitions, MaPP 5240.5 (Aug. 21, 2013) – establishing the policies and procedures for responding to suitability petitions, and that reiterates that “[u]nder 21 CFR 314.93(e), the Agency will approve or deny the petition no later than 90 days after the petition is submitted.”  According to the MaPP:

[The Office of Generic Drugs’ (“OGD’s”)] goal is to respond to suitability petitions in an efficient and effective manner.  To meet this goal, a number of parties within the Center for Drug Evaluation and Research (CDER) and throughout the Agency must work in a coordinated manner.  OGD, the office primarily responsible for responding to suitability petitions, has developed procedures for enhancing communication among parties involved in addressing the request(s) in the suitability petitions.

Unfortunately, in the nearly eight years since FDA issued MaPP 5240.5, little progress has been made.  Curiously, the most recent version of MaPP 5240.5 omits any discussion of the 90-day statutory period, as well as to OGD’s goal to respond to suitability petitions in an efficient and effective manner.

Perhaps as a result of FDA’s failure to timely address suitability petitions, Congress expressed its expectation that FDA meet this 90-day deadline in Section 805 of the 2017 FDA Reauthorization Act (“FDARA”).  In addition to a “Sense of Congress” provision stating that FDA “shall meet the requirement under [FDC Act § 505(j)(2)(C)] and [21 C.F.R. § 314.93(e)] of responding to suitability petitions within 90 days of submission” (FDARA § 805), Congress hoped to encourage FDA to expedite responses to such petitions by requiring a report of the number of outstanding suitability petitions and a report of the number of suitability petitions that remained outstanding 180 days after submission.  In addition, the GDUFA II Performance Goals Letter states that “FDA aspires to respond to Suitability Petitions in a more timely and predictable manner.”

FDA has thus far not complied with this congressional mandate and GDUFA II Performance Goal.  According to FDA’s most recent FDARA § 805 activities report – from Fiscal Year 2020 – 174 suitability petitions are pending a substantive FDA response for more than 180 days from the date of receipt of the petition, and there are 180 suitability petitions pending a substantive FDA response.

That brings us to S. 1462.  According to the press release on the bill:

The Simplifying the Generic Drug Application Process Act repeals section 505(j)(2)(C) of the Food Drug and Cosmetic Act (FDCA) so that sponsors can submit generic drug applications (ANDAs) without the need for the U.S. Food and Drug Administration (FDA) to first grant a suitability petition.  FDCA requires that if a generic drug sponsor wants to submit an ANDA for a drug that differs from the brand in terms of its route of administration, dosage form, or strength, then the generic needs to first submit a suitability petition to FDA requesting permission to file the ANDA.  FDCA requires FDA to respond within 90 days, but if FDA does not respond, the generic cannot file the ANDA.  Unfortunately, FDA has not responded to many suitability petitions filed over the last seven years – preventing submission of ANDAs for drugs in shortage and drugs without generic competition.  This bill repeals the requirement to file a suitability petition for ANDAs that do not require clinical data.  Even with this change, FDA still has the opportunity to review the proposed change to the brand before the ANDA is filed and then again when reviewing safety and efficacy as part of the review process.

That’s right!  Congress has finally given up on waiting for FDA to reform the Agency’s handling of ANDA Suitability Petitions and has wisely decided to step in and reform the system.

Specifically, the bill would amend current FDC Act § 505(j)(2)(C) to allow the submission of an ANDA that differs from the listed drug in dosage form or strengths (i.e., the two most common Suitability Petition changes).  Instead of having to wait (years) for FDA to separately approve a Suitability Petition before submitting an ANDA for the proposed change, the law would be amended such that “[t]he Secretary shall approve or disapprove the submission of such an abbreviated application during the course of its determination whether to receive the application pursuant to [21 C.F.R. § 314.101].”  That is, the current petition process would effectively be collapsed into FDA’s filing (receipt) determination.

This is a fantastic legislative proposal, and one that may truly reinvigorate the historical “petitioned ANDA.”

Modernizing Therapeutic Equivalence Rating Determination Act (S. 1463)

Beginning with the 36th (2016) edition of the Orange Book, the Orange Book Preface was updated to state that “[a] person seeking to have a therapeutic equivalence rating for a drug product approved in a 505(b)(2) application may petition the Agency through the citizen petition procedure (see 21 CFR 10.25(a) and 21 CFR 10.30).”   Since then, FDA has received numerous citizen petitions requesting the assignment of a Therapeutic Equivalence Code (“TE Code”).  In most cases, however, those petitions languish at FDA for an extended period of time (usually years).  In the meantime, 505(b)(2) NDA holders must pay an annual PDUFA user fee for such products and request a refund contingent on FDA’s citizen petition determination.  Prompt TE Code determinations (i.e., either “A” or “B” ratings) for drug products approved under a 505(b)(2) NDA would eliminate these inefficiencies, the costs to the Agency and the generic drug industry associated with those inefficiencies, and would clarify the substitutability of several drug products.

According to the press release on S. 1463:

The Modernizing Therapeutic Equivalence Rating Determination Act requires FDA to assign therapeutic equivalence ratings for 505(b)(2) applications at the applicant’s request, as it does for ANDAs.  The 505(b)(2) approval pathway is used to approve new drugs while leveraging certain data from an already approved drug.  To the extent that the drug candidate differs from the already approved drug, the sponsor has to generate sufficient data including clinical data to support the differences, but does not automatically receive a therapeutic equivalence rating.  A therapeutic equivalence rating is necessary to trigger automatic substitution at the pharmacy level and thus critical to driving competition.  Because 505(b)(2) is technically a new drug pathway, the statute does not require FDA to assign a therapeutic equivalence rating.  Sponsors can request it via the citizen petition process, but this can take significant time.  Requiring FDA to assign a therapeutic equivalence rating for 505(b)(2) applications will level the playing field for 505(b)(2) products to compete with name brand drugs.

Specifically, the bill would amend the statute’s Orange Book provisions FDC Act § 505(j)(7)(A) to require that FDA make a TE Code determination for a 505(b)(2) NDA “at the time of approval of such application or not later than 30 days after the date of such approval, provided that the sponsor requests such a determination in the original application, in a form prescribed by the Secretary.”

Like S. 1462, S. 1463 would make small, but very meaningful, changes to the statute to address and remedy current FDA inefficiencies.  And if there’s one thing this German-blooded American likes, it is efficiency!

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FASTER Law Adds Sesame as Major Food Allergen

FASTER Law Adds Sesame as Major Food Allergen

By Karin F.R. Moore & Riëtte van Laack

On Friday April 23, President Biden signed into law the Food Allergy Safety, Treatment, Education and Research (FASTER) Act that designates sesame as the ninth major food allergen.  The first eight major allergens – peanuts, tree nuts, fish, Crustacean shellfish, soy, milk, eggs, and wheat – were designated major allergens with the passage of the Food Allergen Labeling and Consumer Protection Act (FALCPA) in 2004.  The FASTER law requires foods containing sesame to be clearly labeled on products entering interstate commerce on January 1, 2023, and directs the Department of Health and Human Services to prioritize regular reviews of promising food allergy treatments and research, which will help identify new allergens to be designated number 10 and beyond.

Specifically, the FASTER Act amends section 201(qq)(1) of the Federal Food, Drug, and Cosmetic Act (FDCA), and makes sesame subject to FDCA requirements for major food allergens, including labeling disclosure, and cGMP and preventive controls requirements for allergen control.

This Law has been a long time coming.  As we reported (here and here), proposals related to sesame allergen labeling have been introduced in Congress on several occasion. Then in 2019 Illinois enacted a law that required sesame allergen labeling.  In addition, FDA had been petitioned to issue regulations to declare sesame a major allergen and released a draft guidance which strongly encouraged companies to voluntarily declare sesame as an allergen, and recommended disclosure of the presence of any sesame derived ingredients in spices and flavorings.

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The Fifth Circuit Addresses Pay-for-Delay Agreements: Money for Nothing (and Patent Settlements for Free?)

The Fifth Circuit Addresses Pay-for-Delay Agreements: Money for Nothing (and Patent Settlements for Free?)

By Sara W. Koblitz

So-called “Pay-for-Delay” settlements, also called Reverse Payment, settlements—in which an innovator sponsor pays a generic sponsor to settle ongoing patent infringement litigation in exchange for a delay in generic market entry—have been fodder for antitrust concerns for decades (see, for example, our coverage from 2013).  Effectively, the first generic filer gets paid not to market—and, as a result of its 180-day exclusivity, block subsequent filers from coming to market—while an innovator gets an extension of its monopoly.  Critics of these agreements believe that these agreements belie the intent of the ANDA pathway: facilitation of access to affordable medicines.  Supporters, on the other hand, point out that the public ultimately benefits from these arrangements: sponsors can lower the costs of their medicines as a result of the money saved from lengthy litigation, and, should the relevant patent be valid and enforceable, generic sponsors can market their products earlier than if they had to await patent expiration.  To balance these concerns, Congress delegated to FTC the authority to review and sign off on all generic drug and biosimilar patent settlement agreements based on a “rule of reason” standard established in the 2013 case, FTC v. Actavis

In February 2017, FTC had the opportunity to test out the Actavis framework.  After reviewing a settlement between Impax Laboratories and Endo Pharmaceuticals with respect to Paragraph IV patent litigation arising from Impax’s ANDA—eligible for 180-day exclusivity—seeking approval of a generic version of Endo’s Opana ER (oxymorphone), FTC brought separate enforcement actions against the parties alleging that the settlement was an unfair method of competition under and an unreasonable restraint of trade in violation of the FTC Act.  At that time, Endo had decided to launch a crush-resistant Opana ER and remove the original Opana ER from the market, which would ultimately render any generic to original Opana ER not substitutable, but Endo needed some time to shift the market to its crush-resistant product.  To buy some time, Endo sued Impax for patent infringement and triggered a 30-month stay in Impax’s ANDA approval.  One month before the expiration of the 30-month stay, FDA tentatively approved Impax’s ANDA, and, on the cusp of trial, Endo and Impax settled the litigation.

Under the terms of that settlement, Impax would delay first commercial marketing of its generic until January 2013—which, as the first applicant with 180-day exclusivity, would delay all subsequent generic launches—and Endo agreed not to launch an authorized generic until after expiration of Impax’s 180-day exclusivity; to provide credit for any lost revenues upon Endo’s launch of crush-resistant Opana ER; to provide Impax a license for all existing and future Opana ER patents; and to collaborate with Impax on a new drug product with payments up to $40 million.  In total, Impax received approximately $100 million not to delay market entry for 2.5 years.  And, when Impax finally could come to market, Endo product-hopped to its crush-resistant Opana ER so that Impax’s generic did not even compete with Endo’s product.  Unfortunately for End, FDA the new crush-resistant Opana was withdrawn for safety reasons, leaving Impax’s the only version of Opana ER on the market.

Endo settled with FTC while Impax fought the allegation allegations.  An Administrative Law Judge reviewed the agreement and determined that it restricted competition, but its procompetitive benefits outweighed the anticompetitive effects.  FTC, however, rejected the ALJ’s determination and determined that the cited procompetitive benefits could have been achieved through a less restrictive agreement.  Consequently, FTC issued a cease-and-desist order enjoining Impax from entering into any similar reverse payment agreements in the future.  Though Impax did not challenge the classification of the agreement as a “Reverse Payment” agreement, it appealed the FTC Order to the Fifth Circuit arguing that the payments and settlement size were justified.

On April 13, 2021, the Fifth Circuit upheld the FTC’s Order looking to whether the agreement caused anticompetitive effects that outweigh the procompetitive benefits.  Under Actavis, the Court explained that the “likelihood of a reverse payment bringing about anticompetitive effects depends upon its size, its scale in relation to the payor’s anticipated future litigation costs, its independence from other services for which it might represent payment, and the lack of any other convincing justification.”  When that payment is large an unjustified, it creates a likelihood of significant anticompetitive effects.  Using the Actavis “rule of reason” standard, the Court agreed that the FTC met its burden to show that the settlement was anticompetitive based on size and lack of justification.  Indeed, the size of the payment from Endo to Impax was comparable to other instances in which courts inferred anticompetitive effect, and that Endo’s savings in litigation expenses from settling—totaling approximately $3 million—was not enough to justify the $100 million that Endo would end up paying Impax under this agreement.   With the threat of competition “snuffed out” by the reverse payment agreement—combined with Endo’s known product-hop plans—the Court agreed that the FTC had “substantial evidence to conclude that the reverse payments replaced the ‘possibility of competition with the certainty of none.’”

The Court rejected Impax’s argument that the FTC should have considered the strength of patent as irrelevant.  While Impax explained that the settlement would not have been anticompetitive if the patents were strong, as it would have permitted generic entry prior to patent expiration, the Court inferred anticompetitive effect merely from the large amount Endo was willing to pay to prevent further competition.  The Court further declined to look at the agreement in hindsight.

While the next rule-of-reason question concerned whether the agreement has any procompetitive benefits—and FTC argued that it did not—the Court did not address this element because the FTC assumed arguendo that it have procompetitive benefits.  Instead of requiring Impax to meet its burden of demonstrating procompetitive benefits, the Court turned directly to the question of whether FTC reasonably found that the presumptive procompetitive benefits “could be reasonably achieved through less anticompetitive means.”  For such an assessment, FTC relied on industry practice, economic analysis, expert testimony, and credibility of Impax’s lead settlement negotiator.

Based on the fact that most Paragraph IV patent challenge settlements do not include reverse payments and the economics showing that Endo likely would have entered the settlement agreement without the $100 million payout, the Court found that substantial evidence supported the FTC’s finding that the settlement could be achieved through less anticompetitive means.  Despite the testimony of the Impax negotiator, whose credibility was questioned, insisting that Impax would not have agreed to such a settlement, the Court explained that “any reluctance Impax had to agree to a no-payment settlement . . .  cannot undermine the Commission’s finding that a less restrictive settlement was viable.”  Because evidence supported a reasonable factfinder to make such a conclusion, the Court upheld the FTC Order.

This case is important.  Not only does it reaffirm the utility of the FTC’s review of patent settlement agreements, but it for the first time clearly applies the rule-of-reason framework, including the necessary shifting of burdens, for evaluating the pay-for-delay cases.  While much deference is afforded to the FTC’s opinion, it’s clear that the framework leaves room for justification as to the procompetitive benefits of such a settlement, suggesting that each settlement truly will be evaluated on a case-by-case basis.  Unlike the recent California pay-for-delay law, in which these types of settlements are presumptively anticompetitive, the Court’s analysis here leaves room for sponsors to continue negotiating these types of settlements, as long as the terms are justifiable and ultimately beneficial to the public.  Nevertheless, the decision’s deference to FTC’s determination that a no-payment settlement, which theoretically should be available in any patent settlement, is a feasible less restrictive alternative to a reverse-payment settlement suggests that the FTC’s unspoken anticompetitive presumption may be difficult to overcome.

The FTC brought additional action against both Impax and Endo in January 2021 for conspiring to share monopoly profits from Impax’s extended release oxymorphone product—the only extended release oxymorphone remaining on the market—after FDA withdrew approval of crush-resistant Opana ER.  On the condition that Endo would refrain from reentering the market, FTC alleges, Impax agreed to pay Endo a percentage of its oxymorphone ER profits.  This case remains ongoing.

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The Supremes Give the FTC “Nothing but Heartaches”: Court Unanimously Rules No Restitution in Injunction Cases, and How Will This Ruling Impact FDA?

The Supremes Give the FTC “Nothing but Heartaches”: Court Unanimously Rules No Restitution in Injunction Cases, and How Will This Ruling Impact FDA?

By Karin F.R. Moore & Jeffrey N. Gibbs & John R. Fleder & Michael S. Heesters

The Supreme Court has handed down a decision in AMG Capital Management, LLC, et al. v. Federal Trade Commission, No. 19-508 (Apr. 22, 2021) [hereinafter Slip Op.], gutting the FTC’s use of §13(b) of the FTC Act, 15 U.S.C. § 53(b), to obtain equitable monetary relief and, in the words of Miss Ross and the Supremes (1965), bringing the FTC “Nothing But Heartaches.”  Background on the case can be found in earlier posts here, herehere, and here.

Justice Breyer, writing for a unanimous court, summed it up:

Section 13(b) of the Federal Trade Commission Act authorizes the Commission to obtain, “in proper cases,” a “permanent injunction” in federal court against “any person, partnership, or corporation” that it believes “is violating, or is about to violate, any provision of law” that the Commission enforces.  87 Stat. 592, 15 U. S. C. §53(b).  The question presented is whether this statutory language authorizes the Commission to seek, and a court to award, equitable monetary relief such as restitution or disgorgement.  We conclude that it does not.

Slip Op. at 1.

The Court pointed out that its task was not to determine whether the ability of the FTC to substitute §13(b) for the administrative procedure in §5 and consumer redress under §19 were desirable, but rather to answer a “more purely legal question,” Slip Op. at 6.  It did that by focusing on the text of the statute.  Indeed, the first (and very succinct) point in the Court’s analysis of the statute is that “the language [of §13(b)] refers only to injunctions.”  Id.  The “coherent enforcement scheme” that the statute intended allowed the FTC to “obtain monetary relief by first invoking its administrative procedures and then §19’s redress provisions (which include limitations).  And the Commission may use §13(b) to obtain injunctive relieve while administrative proceedings are foreseen or in progress, or when it seeks only injunctive relief.”  Id. at 10.

In addition to the textual analysis, the Court also noted that §13(b) is prospective, not retrospective – using terms such as “is violating” rather than “has violated.”  Id. at 8.  The Court also looked at the structure of the FTC Act beyond §13(b) to §5(l) and §19 which provide for the imposition of limited monetary penalties and awards of monetary relief where the FTC has already engaged in administrative proceedingsId. at 9.

FTC Acting Chairwoman Rebecca Kelly Slaughter was quick to issue a strongly worded statement calling on Congress to act swiftly to undo the Court’s decision.  There is already a full-court press – acknowledged in the Court’s decision – for Congress to act quickly on two different pieces of legislation that would affirmatively confirm the asserted authority of the FTC to seek equitable relief, S. 4626 and H.R. 2668.  Indeed, earlier this week, the full Commission testified before the U.S. Senate Committee on Commerce, Science, and Transportation and submitted testimony on the need for such legislation.

So, the obvious question to many readers is how does this Supreme Court decision implicate FDA?  In other words, can FDA, through the Department of Justice (DOJ), request that a court impose monetary sanctions against a person who violates the Federal Food, Drug, and Cosmetic Act (FDC Act) in light of the AMG decision?

This is hardly a new question for us.  Almost twenty years ago, two of the writers of this blog addressed that question in a law review article published by the Food and Drug Law Institute:  Jeffrey N. Gibbs & John R. Fleder, Can FDA Seek Restitution or Disgorgement?, 58 Food and Drug L.J. 129 (2003).

The article followed some high-profile cases where FDA had collected hundreds of millions of dollars from companies which had allegedly violated the FDC Act.  We noted that FDA itself had informed the U.S. Supreme Court in 1999 that the agency lacked the authority to obtain compensatory relief or punitive damages.  Id. at 132.  The article also discussed the operative language of the FDC Act and its legislative history to demonstrate that the FDA does not have the authority to get monetary relief in injunction cases filed in court.  Id. at 142-45.  Our central conclusion was: “Section 302 [of the FDC Act] does not explicitly or even implicitly authorize FDA to ask a court to order restitution or disgorgement.”  Id. at 147.  As shown below, the Court’s decision in AMG should eliminate any legitimate question about the accuracy of that conclusion.

There are really several subparts to the question posed above.  First, is the AMG decision binding on FDA.  Second, will the decision impact the way that FDA enforces the FDC Act?

Regarding the first question, the starting point is to compare the wording of the FTC Act to the wording of the FDC Act.  The key operative language of §13(b) of the FTC Act is: “the Commission may seek, and after proper proof, the court may issue a permanent injunction.”  Section 302 of the FDC Act, 21 U.S.C. § 332, states: “The district courts of the United States and the United States courts of the Territories shall have jurisdiction, for cause shown to restrain violations of section 301” [the Prohibited Acts provision of the FDC Act].  So, the FTC is empowered to seek permanent injunctions for FTC Act violations, while the FDA (through the DOJ) can ask a court to restrain violations of the FDC Act.

As noted above, the Court’s decision cites several reasons why the FTC lacks the authority to obtain equitable relief under Section §13(b).  The first reason cited is that “§13(b)’s ‘permanent injunction’ language does not authorize the Commission directly to obtain court-ordered monetary relief.  For one thing, the language refers only to injunctions. . . .  An ‘injunction’ is not the same as an award of equitable monetary relief.”  Slip Op. at 6.

This conclusion should apply to FDA even though the language in the two statutes is somewhat different.  Just like the operative FTC Act provision, Section 302 of the FDC Act is totally silent regarding monetary relief.  Moreover, the word “restrain” is forward-thinking.  The Merriam Webster dictionary defines the word “restrain” to mean “to prevent from doing.”  Preventing a defendant from future violations of the FDC Act is to restrain that defendant.  In contrast, asking a court to take money from a defendant based on past violations of the FDC Act is largely, if not entirely, backward-thinking and perhaps even punitive.  Thus, just as the Court ruled in AMG that the operative FTC Act’s language means that an injunction is not the same as an award of equitable monetary relief, it should seem inescapable that to “restrain” a violation does not permit a court to award equitable monetary relief.

There is a second relevant commonality between the FTC Act and the FDC Act.  The Court’s AMG decision cites several other provisions in the FTC Act where Congress explicitly authorized district courts to impose monetary penalties and equitable relief for violations of the FTC Act.  The Court cited these provisions for the purpose of its conclusion that “[i]t is highly unlikely that Congress would have enacted provisions expressly authorizing conditioned and limited monetary relief if the Act, via §13(b), had already implicitly allowed the Commission to obtain that same monetary relief . . . .”  Slip Op. at 9.

Similarly, the FDC Act explicitly authorizes FDA to obtain monetary relief in several provisions.  For example, Section 303(a), (b)(1), and (e)(3) authorize a court to fine a defendant in a criminal case.  In the civil context, Section 303(b)(2), (f), and (g) authorize FDA to obtain civil penalties regarding violations of the FDC Act concerning drug samples, devices, foods, tobacco products, and direct to consumer drug advertisements.  Section 518(e) authorizes FDA to mandate refunds to persons who FDA believes have been damaged by a violation involving medical devices.  Thus, the absence of monetary relief in Section 302 coupled with the presence of monetary relief in other provisions of the FDC Act should lead to the inescapable conclusion that Congress did not authorize the government to obtain monetary relief in a Section 302 lawsuit.

While we focus on the commonalities between the FTC Act and FDC Act, one point of differentiation that may be important is that FDA has a fairly large stick that FTC does not often have.  As we know, the FDC Act is a strict liability criminal statute, so every cGMP violation that supports an injunction also supports a criminal charge.  There is no question that FDA and DOJ can obtain fines, forfeiture, and restitution under its criminal authority, and while unlikely, this Supreme Court decision could have the perverse effect of encouraging broader use of criminal sanctions if FDA wants monetary relief.  But, keep in mind that the FTC has some – but more limited – authority under its statute to seek a criminal prosecution, limited to food and drug advertising under 15 U.S.C. § 54, whereas the FDA has broader criminal jurisdiction.

There is the second and equally important question we will next address:  how will FDA react to the AMG decision?  FDA through the DOJ could decide to file one or more injunction cases where the government seeks monetary relief from a defendant.  But will it exercise that right?  The answer will have to be provided by FDA and DOJ.  Of course, the government could decide, after reading the AMG decision, that the ruling will similarly bar the government from seeking monetary relief pursuant to Section 302.  But what if it decides to bring a test case.  The defendant can certainly contest FDA’s statutory authority.  If that happens, the district judge assigned the case will have to decide the issue, subject to later appellate court review.  As noted above, we believe that any such case would fail.

A more likely scenario would involve pre-filing negotiations between FDA and a potential defendant.  When FDA wants to get an injunction through a district court filing, the agency typically drafts and submits a proposed Consent Decree to counsel for the likely defendant[s].  We would not be surprised if FDA continues this practice by, in appropriate cases, asking the defendant[s] to agree to pay monetary relief as a component of the Consent Decree.  Of course, the proposed defendant can either agree or disagree to that demand for money.  If the defendant agrees to a monetary payment, the proposed Consent Decree would be submitted to the district court judge for approval.  But the judge has the legal authority to question the legality and indeed propriety of a proposed Consent Decree.  The judge could (but might well not) ask for briefing on whether the judge has the authority to award monetary relief under Section 302.  Some judges might well conclude that because the FDC Act does not authorize monetary relief, that part of the Consent Decree must be stricken.

But what happens if a proposed defendant responds to an FDA demand for monetary relief by refusing to pay, citing the AMG decision?  And should a proposed defendant do so?

FDA, not the proposed defendant, initially drafts proposed Consent Decree.  The agency puts forth a proposal on the remedial provisions the agency wants in the Decree such as a possible shutdown of certain operations, remedial steps the agency wants the defendant to take, and the sanctions that will be imposed if the defendant violates the Consent Decree.  If a proposed defendant balks at paying monetary relief for past violations, what will and should happen next?  FDA and DOJ can say (and probably would say before the AMG case was decided) that absent monetary relief there will be no Consent Decree.  Of course, a proposed defendant will have to make its own decision regarding whether to give in to FDA’s demand for monetary relief.

We believe however, that in most cases, proposed defendants are on very strong legal and practical grounds in refusing an FDA demand for monetary relief.  FDA should realize that absent a change in the law, FDA will likely lose in court if it demands monetary relief.  If a proposed defendant accepts the remedial provisions of a proposed Consent Decree but rejects the monetary provisions, will FDA reject the settlement?  The answer to that question is unclear as it will need to be resolved by FDA and the DOJ.  Will FDA insist on even tougher remedial terms if a proposed defendant rejects a monetary payment.  The answer should be no.  Once FDA articulates the remedial terms it needs in a proposed Consent Decree, the agency will have a hard time justifying the need for additional remedial terms just because the company rejects a monetary payment.

This leaves a final ancillary question.  Will FDA seek a legislative change to Section 302 to explicitly authorize the government to get monetary relief in an injunction suit?  We do not know the answer to that question, but we will eagerly await the answer.  Of course, FDA and the FTC may not be the only federal agencies negatively impacted by the AMG decision.  Thus, Congress could decide to implement a “legislative fix” to AMG that would apply to a multitude of federal agencies.  Alternatively, as has been the case all too often, Congress may be unable to reach an agreement on how to fix AMG, and the relevant law will remain unchanged.

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New Administration, “Old” Rules: FDA and HHS Jointly Withdraw 11th Hour Trump Administration Proposal for Sweeping 510(k) Exemption

New Administration, “Old” Rules: FDA and HHS Jointly Withdraw 11th Hour Trump Administration Proposal for Sweeping 510(k) Exemption

By Allyson B. Mullen

In a return to regular order, on April 16, HHS and FDA jointly withdrew a January 15, 2021 proposal issued by HHS under the prior administration recommending wide-spread 510(k) exemptions (the “Notice”).  See 86 Fed. Reg. 20167, 20174 (Apr. 16, 2021) (available here and here).  The Notice, specifically, proposed exempting 83 Class II devices, ranging from thermometers to digital therapeutics and ventilators, and immediately exempted seven types of Class I gloves.  Because the glove exemption was immediate upon issuance of the January Notice, HHS and FDA are issuing a notice and request for comment to reinstate the 510(k) requirements for these devices.

The only thing this group of Class I and II devices had in common was that they were all subject to an FDA enforcement discretion policy issued during the COVID-19 public health emergency.  See.  86 Fed. Reg. 4088 (Jan. 15, 2021).  In brief, the January Notice determined that because these devices were granted regulatory flexibility during the public health emergency that they should be permanently exempt from the 510(k) notification requirements (even if that’s not what the enforcement policy said).  In support of this proposal, the Notice looked only to FDA’s publicly available device adverse event database, FDA’s Manufacturer and User Facility Device Experience (MAUDE), to identify any safety risks.  Anyone in industry who has ever tried to argue to FDA that a device that is commercially available outside the U.S. should be cleared because there have been no or minimal adverse events knows how willing FDA is to accept lack of adverse events as a sign of safety (for those who haven’t tried this argument, it’s not a winning one).

When this author read the January Notice, it seemed like an ill-thought-out proposal.  But, it was actually a gift in waiting having led to what can only be described as two scathing withdrawal notices issued last week, in which HHS and FDA found that “the proposed exemptions . . . were published without adequate scientific support, . . . contained errors and ambiguities, and . . . [were] otherwise flawed.”   The Federal Register notice announcing the withdrawal also noted that the enforcement policies that the previous administration proposed expanding and making permanent, “were issued in response to a highly unusual set of facts and circumstances; the most sweeping [public health emergency] to occur in over a century.”

It should not come as a surprise to anyone that at a time when FDA, particularly CDRH, is experiencing an unprecedented workload, it needed to prioritize resources and ensure that it was not a bottle neck to getting devices to people that needed them in a way that minimized risk to the public.  It acted by issuing enforcement discretion policies.  These policies were never meant to be permanent – each stating that, “This policy is intended to remain in effect only for the duration of the public health emergency related to COVID-19.”  Indeed, the glove withdrawal notice goes into detail about the evidence that FDA considers when evaluating a 510(k) exemption for a Class I device noting that if the Agency believed that the gloves met the criteria for exemption it could have issued it, but “instead it chose an enforcement policy, which reflected FDA’s careful balancing of the public health considerations in response to the [public health emergency].”

The withdrawal notices also stated that HHS and FDA had received “dozens” of inquiries, both formal and informal, about the proposal highlighting confusion around ambiguities and errors in the proposal.  Interestingly, public comments in response to the January Notice were mixed with some supporting the proposal for specific device types (e.g., digital pathology devices) and others opposing the proposed exemption.  The comments in opposition highlighted risks to public health, the methodology for identifying those devices for exemption, and the industry confusion that could be caused if the proposal were to be finalized.  The government appeared to agree on the methodology point, stating that “adverse event data is not adequate on its own for assessing safety, let alone whether to determine a device to be exempt from 510(k).”

Many in industry found the January Notice odd given that it came from HHS, rather than FDA.  Indeed, in the withdrawal notices, HHS and FDA noted that they “did not find any evidence that HHS consulted with, otherwise involved, or even notified FDA before issuing” the proposed exemptions.  The withdrawal made quite clear how HHS and FDA should work together stating, “Section 1003(d) of the FD&C Act (21 U.S.C. 393(d)) provides that the Secretary ‘shall be responsible for executing’ the FD&C Act ‘through the [FDA] Commissioner.’  Here, the January 15, 2021, Notice is clearly an action ‘executing’ the FD&C Act.”

Because the January Notice merely proposed an exemption for the 83 Class II devices, HHS and FDA were able to withdraw it immediately.  Thus, there is no change to the regulatory status of those devices.  As discussed above, HHS and FDA are currently seeking comment on the reinstatement of the 510(k) requirements for these devices.  The notice indicates that HHS and FDA, “believe that only a limited subset of regulated entities may have placed legitimate reliance on the January 15, 2021 Notice” and the government is “concerned about the public health risks posed by the exemption.”  Glove manufacturers affected by the exemption should beware of the likely reinstatement of the 510(k) requirements.  The comment period closes May 17, 2021.

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FDA Updates the Regulatory Definitions of Certain Software Types for Consistency with 21st Century Cures Act Exclusions

FDA Updates the Regulatory Definitions of Certain Software Types for Consistency with 21st Century Cures Act Exclusions

By McKenzie E. Cato

The 21st Century Cures Act (“Cures Act”), which was enacted in 2016 (see our blog post here), excluded from the statutory definition of “device” five categories of software:

  1. Software for administrative support of a health care facility;
  2. Software for maintaining or encouraging a healthy lifestyle and is unrelated to the diagnosis, cure, mitigation, prevention, or treatment of a disease or condition (so-called “general wellness” software);
  3. Electronic medical record software;
  4. Certain types of medical device data system (MDDS) software, which is software intended to transfer, store, convert formats, or display device data; and
  5. Certain types of clinical decision-support software.

To date, FDA had not updated its classification regulations, the FDA regulations defining categories of devices and outlining the applicable regulatory controls, to carve out the categories of software devices excluded from the device definition by the Cures Act.  This lag was, at times, a source of confusion when attempting to determine whether a new software functionality was subject to regulation as a device and required 510(k) clearance.

On April 19, FDA published a final rule amending eight classification regulations to exclude software functions that no longer fall within the device definition:

Classification Regulation

(21 C.F.R.)

Device Type Modification
862.2100 Calculator/Data Processing Module for Clinical Use Remove non-device software functions to maintain and retrieve laboratory data
862.1350 Continuous Glucose Monitor (CGM) Secondary Display Remove software functions regarding receipt and display of data, and amend the title of the regulation to “Continuous Glucose Monitor (CGM) Secondary Alarm System”
866.4750 Automated Indirect Immunofluorescence Microscope and Software-Assisted System Replace “software” with “device” in the device category name, because both hardware and software functions that use fluorescent signal acquisition and processing software, data storage, and transferring mechanisms, or assay specific algorithms to interpret or analyze results, are devices
880.6310 Medical Device Data System Remove non-device software functions intended for transferring, storing, converting formats, or displaying clinical laboratory test or other device data and results
884.2730 Home Uterine Activity Monitor Remove non-device software functions intended for transmitting, receiving, and displaying data
892.2010 Medical Image Storage Device Remove non-device software functions intended for storing and retrieving, so that a medical image storage device is a hardware device that provides electronic storage and retrieval functions for medical images
892.2020 Medical Image Communications Device Include software functions intended for medical image processing and manipulation
892.2050 Picture Archiving and Communications System Remove non-device software functions intended for storing and displaying medical images, clarify that the regulation includes software and hardware functions intended for medical image management and processing, and revise the title of the classification regulation to “Medical Image Management and Processing System”

By removing the non-regulated software functionalities, the classification regulations can more easily be used to identify regulated software functionalities.

The modifications to the Picture Archiving and Communications System (PACS) classification regulation, in particular, are a welcome change.  This category of devices was defined very broadly in the previous classification regulation, and many types of radiological imaging software fell within the PACS definition.  By narrowing down the PACS definition to remove functionalities for storage and display of images, it will be much easier to evaluate the regulatory status of a new radiological imaging software.

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REMINDER: Controlled Substances Act Issues: Legal Perspectives and Analytical Trends Webinar

REMINDER: Controlled Substances Act Issues: Legal Perspectives and Analytical Trends Webinar

Hyman, Phelps & McNamara, P.C. and Analysis Group are partnering to host a two-hour timely, informative and free program to discuss current important legal perspectives and analytical trends concerning the Controlled Substances Act and the Drug Enforcement Administration.  The webinar is scheduled to take place on Tuesday, April 27, 2021, from 2:00 p.m. – 4:00 p.m. (ET).


State of the Agency: Recent Drug Enforcement Administration Regulatory Changes (2:00 – 2:40 p.m.)

John A. Gilbert, Jr. and Crystal Pike

The Pharmacist’s Corresponding Responsibility: Legal and Regulatory Requirements and Recent Enforcement Activity (2:40 – 3:20 p.m.)

Karla L. Palmer and Nicholas Van Niel

“Suspicious Order” Monitoring: The SUPPORT Act, Proposed SOM Rule, the “ORUSC,” and Distribution Trends (3:20 – 4:00 p.m.)

Larry K. Houck and Kenneth Weinstein

To RSVP for this program, please email Amy Vasvary at

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Big Win for HP&M Client: Court of Appeals Tells FDA to Regulate Barium Sulfate As a Drug

Big Win for HP&M Client: Court of Appeals Tells FDA to Regulate Barium Sulfate As a Drug

By Douglas B. Farquhar & Sara W. Koblitz

We have blogged recently about several FDA setbacks in court (here, for example).  Add one more to that tally.  Genus Medical Technologies secured an important victory in the D.C. Circuit Court of Appeals on Friday.

In Genus Medical Technologies v. FDA, the Court of Appeals ruled that FDA cannot regulate a medical product – in this case, the radiographic contrast agent barium sulfate – as a drug when the product meets the definition of a device.  The decision has wide-ranging implications for FDA’s assertion of discretion in classifying and regulating medical products.  The Court decision limiting FDA’s discretion provides regulatory certainty for device manufacturers, as the claimed discretion, if recognized by the Court, would have meant that any medical device potentially could be classified and regulated as a drug.  And, of course, requiring medical devices to be regulated as such precludes the imposition of significant additional costs.  As most readers of our blog are aware, the regulatory costs to manufacturers of medical products are much lower if FDA regulates a product as a medical device rather than a drug requiring FDA marketing approval.

Devices are defined by statute as excluding products that achieve their primary intended purposes through chemical action in or on the body, or through metabolic action (what Genus referred to in its submissions to the Court as the “mode-of-action clause”).  Two judges on the D.C. Circuit rejected FDA’s claim that it could regulate, at its discretion, any medical device as a drug.  A third judge, who filed a concurring decision, argued that, although FDA might, in some instances, be able to classify and regulate as a drug a product meeting the definition of a device, FDA had not adequately justified its decision in this case.

Our client, Genus Medical Technologies, manufactures and distributes barium sulfate for use in radiographic procedures.  After an FDA inspection in 2016, Genus was told that it could not distribute barium sulfate because it was an unapproved drug.  In response, Genus argued that barium sulfate meets the definition of a device because it does not achieve its primary intended purposes through either chemical or metabolic action.  (The product is effective because of its physical characteristics: barium sulfate absorbs X-rays, coating the digestive system with light to provide a contrast to surrounding tissues.)  FDA replied that the product appeared to meet the definition of a device, but said it nonetheless had discretion to regulate it as a drug.  Pointing to an overlap in the statutory definitions of “drug” and “device” (which pertains only to a product’s “intended use”), FDA took the position that it could choose whether to regulate a device as a drug at its will.  FDA chose to do so for contrast agents because FDA wanted to regulate all contrast agents—no matter their mode of action—the same.  Because some other contrast agents achieve their primary intended purposes through chemical action, and because FDA claimed discretion to regulate all devices as drugs, FDA decided to regulate all contrast agents as drugs.

Genus responded by filing a Request for Designation with FDA’s Office of Combination Products, which backed up FDA’s earlier claim of wide discretion.  Genus challenged the designation of barium sulfate as a drug in U.S. District Court, which sided with Genus in December 2019.  FDA appealed that decision, and the D.C. Circuit upheld it on Friday.

Two of the judges agreed with Genus that the federal statutory scheme directed FDA to treat products as devices if they meet the statutory definition of a device, and while the statutory definition of the purposes of both types of medical products might be overlapping, the statute lays out a clear distinction in the device definition’s mode-of-action clause.  Notwithstanding the overlap in the statutory definition of “drug” and “device,” the judges relied on the long-accepted adage that specific statutory language supersedes general statutory provisions.  The judges also said that changes to the language of the governing Federal Food, Drug, and Cosmetic Act over the last couple of decades did not abrogate the clear statutory definitions.

A third judge wrote an opinion agreeing that the FDA decision on barium sulfate needed to be reversed and remanded to FDA.  But her opinion noted a statutory change in 1990, in the Safe Medical Devices Act, removing a clause excluding devices from the definition of drugs.  As a result, she said, FDA does have the discretion to classify and regulate some devices as drugs, but only if they do not meet an additional portion of the device statute describing devices as including an “an instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other similar or related article, including any component, part, or accessory.”  While FDA did say in numerous communications to Genus, in its initial brief in District Court, and in its oral argument in the D.C. Circuit that barium sulfate appeared to meet the definition of a device (including the language cited by Judge Pillard), Judge Pillard would have remanded the decision to FDA to consider whether barium sulfate meets that portion of the definition.

The majority decision drafted by Judge Henderson and joined by Judge Katsas left open the possibility that FDA could, on remand, decide that the product does, in fact, achieve its primary intended purposes through chemical or metabolic action.  However, the government attorney at oral argument about this case stated that he believed that FDA would probably classify barium sulfate as a medical device if the case is remanded, which is the result that the majority opinion would require.

As we noted in our blog post on the District Court decision in 2019, Friday’s decision is a big win for industry (as well as for our client).  This decision limits FDA’s typically broad discretion and precludes the Agency from imposing significant regulatory hurdles and costs based on policy positions rather than the congressionally imposed risk-based regulatory scheme.  In other words, FDA cannot regulate a device as a drug on a whim.

Of course, we can’t represent that we will always or usually win when we challenge FDA in court, or that the government may not decide to further challenge Friday’s ruling.  But we are happy for our client to be able to celebrate.

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