FDA recently released its latest revised draft guidance addressing compounding of animal drug products from bulk substances. This iteration is not only a re-do of the draft guidance that FDA released in 2015 (blogged about here), but it also includes some new concepts such as a proposed animal drug “bulks” list with its own industry nomination process. FDA’s 2015 attempt at crafting a guidance document for compounding of animal drugs from bulk substances was met with industry criticism, as set forth in the approximately 160 comments from industry that FDA received before it quietly withdrew that guidance draft in 2017. As set forth below, FDA’s latest attempt would significantly expand FDA’s regulatory authority over veterinary medicine and animal drug compounding by both pharmacies and vets (which traditionally has been a state-regulated practice).
FDA’s announcement releasing the guidance states that it addresses particular situations concerning compounding animal drugs from bulk substances including: (1) filling patient specific prescriptions for nonfood-producing animals; (2) compounding for “office stock” from bulk drug substances for nonfood-producing animals; and (3) compounding antidotes for food producing animals.
The draft guidance spends many pages describing the “legal pathways” for marketing animal drugs and the Agency’s traditional exercise of enforcement discretion in certain circumstances when no other medically appropriate treatment options exist for the animal. Akin to the statutory exemptions that Congress granted FDA for human drug compounding, FDA addresses those instances where it would — through the guidance document alone — exercise enforcement discretion for violations of the Federal Food, Drug, and Cosmetic Act’s (FDCA) requirements for animal drug approval, adequate directions for use and cGMP requirements if compounders meet the circumstances described in the guidance. See Guidance at 4. FDA expresses its most significant animal drug compounding “concerns” as the following: (1) when compounds present particular human or animal safety concerns; (2) are intended for use in food producing animals; (3) are copies of marketed FDA-approved, conditionally approved or indexed drug products; or, (4) are compounded without a patient specific prescription (i.e., for office stock). FDA further states that the guidance would not apply in those instances involving investigations of new animal drugs, or those formulations compounded from marketed, FDA-approved (human or animal) drug products, which FDA’s considers extra label use (so long as FDA’s statutory and regulatory requirements for the same are met).
With many similarities to the 2015 draft that FDA rescinded in 2017, this draft guidance also addresses patient specific compounding in pharmacies and compounding for office stock (but omits specific mention this time of “outsourcing facilities”). The most significant difference between the two drafts, however, is FDA’s request for nominations of bulk substances for its new animal drug bulk substances list, which — we note again — is not authorized by any federal statute, unlike the bulk substance nominations process for FDCA Sections 503A and 503B.
FDA’s guidance draft next details the Agency’s proposed use of enforcement discretion concerning: (1) patient specific prescriptions in nonfood producing animals (please pay particular attention to FDA’s onerous “copies” limitations in bullets 4-6, labeling, and adverse event reporting requirements); (2) compounding without patient specific prescriptions (i.e. office stock) for nonfood-producing animals (note in particular the bulks list reference/limitation at bullet 2, labeling and adverse event reporting requirements); and (3) compounding drugs for use as antidotes for treating toxicoses in food-producing animals, when (among compliance with other conditions listed in the guidance), using substances on FDA’s animal drug bulk substances list.
The “Bulks” Appendix
The Appendix to the draft guidance discusses FDA’s establishment of a public docket (FDA-2018-N-4626) for nominations and comments on bulk substances for (1) compounding office stock for use in nonfood-producing animals and (2) compounding antidotes for food-producing animals. Each nomination should be submitted as its own separate nomination. FDA’s Appendix includes at pages 15-16 detailed information it expects to be included in the nominations.
FDA sets forth five general conditions for its bulks list, which are worth repeating verbatim here:
- There is no marketed FDA-approved, conditionally approved, or indexed animal drug that can be used as labeled to treat the condition;
- There is no marketed FDA-approved animal or human drug that could be used in an extra label manner under section 512(a)(4) or (a)(5) of the FD&C Act and 21 CFR part 530 to treat the condition;
- The drug cannot be compounded from a marketed FDA-approved animal or human drug consistent with 21 CFR part 530;
- Immediate treatment with the compounded drug is necessary to avoid animal suffering or death; and
- FDA has not identified a significant safety concern specific to use of the bulk drug substance in animals.
If the bulk substance is to be used as an antidote in a food-producing animal, then, in addition to the above:
- There is sufficient scientific information for the veterinarian to determine appropriate withdrawal, withholding, or discard time(s) for meat, milk, eggs, or any food which might be derived from the treated animal(s).
Comments to the draft guidance are due February 18, 2020. Any comments should be submitted to the following docket: Docket No. FDA-2018-D-4533. Note this docket is different than the bulk substance nominations docket, at FDA-2018-N-4626.