Attorney East Hampton

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  In addition, FDA had been petitioned to issue regulations to declare sesame a major allergen and released a draft guidance which strongly encouraged companies to voluntarily declare sesame as an allergen, and recommended disclosure of the presence of any sesame derived ingredients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.

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.

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, here, here, 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 proceedings.  Id. 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.

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.

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.

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).

AGENDA:

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 avasvary@hpm.com

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.

Hyman, Phelps & McNamara, P.C. seeks a 2nd to 4th year associate to join our team and work on a wide variety of FDA-related matters.  The ideal candidate must have a demonstrated interest in FDA law, possess strong research and writing skills, and fit into the collegial culture of a boutique law firm.  A science background and previous private practice experience are preferred, but not required.

Please send your resume to Anne K. Walsh (awalsh@hpm.com).  Candidates must be members of the DC Bar or eligible to waive in.  Compensation is competitive and commensurate with experience.  HPM is an equal opportunity employer.

By Douglas B. Farquhar —

Ask and ye shall receive, if yer requests are vocal and repeated, and ye are patient, and willing to accept less than ye ask for.

For more than a year we have been asking FDA to initiate virtual or remote inspections of drug manufacturing facilities.  FDA has conducted only a handful of on-site inspections – and no virtual inspections – of drug manufacturing facilities since the COVID epidemic shut down foreign travel 13 months ago.  FDA’s failure to perform inspections of foreign drug manufacturing facilities made it impossible for many companies to close out Warning Letters, climb off the Import Alert list, or secure approvals of drug applications delayed because FDA insisted on an on-site inspection (see blogposts with catchy titles like “FDA Fiddles with Remote Inspections While Pharma Burns” and “Conducting Virtual Inspections: EMA and MHRA Do It, CMOs Do It, Why Won’t FDA Do It?”).  Regulatory agencies other than FDA have been performing virtual inspections for much of the past year.

Finally, on April 14, FDA issued a guidance addressing (in large part), these concerns.  It spells out the procedures to be followed for what FDA labels “Remote Interactive Evaluations,” with an explanation that these “interactions” will not meet the statutory definition of an “inspection.”  The Guidance also sets forth when FDA will ask for companies to cooperate in these “interactions,” and when FDA won’t.  But, overall, the “interactions” will look and feel a lot like a virtual inspection.  FDA says it “will use its own IT platforms and equipment to host virtual interactions during remote interactive evaluations (e.g., videoconferences, livestreaming video of the facility and operations in the facility).”  It says that it expects the regulated entity to cooperate in the use of “livestream and/or pre-recorded video to examine facilities, operations, and data and other information.”  And FDA will host prior brief virtual meetings to discuss logistics and responsibilities during “livestreaming walkthroughs of the facility.”

While FDA states that these “evaluations” are not inspections, there are a lot of features that are very similar to inspections.  “After the remote interactive evaluation concludes,” the agency states, “FDA will provide a copy of the final remote interactive evaluation report to the facility.”  This report is explicitly not a Form 483, which is delivered with observations about significant deviations at the conclusion of about half of the inspections of drug-manufacturing facilities.  But it will have many of the same features, especially since, “As with an inspection, FDA encourages facilities to respond during the discussion and/or provide responses in writing to the observations within 15 U.S. business days,” the same deadline set for responding to a Form 483.  Also, if the interactive evaluation is a supplement to an inspection, FDA “usually will combine any observations from the remote interactive evaluation(s) into a single written list of observations issued at the close of the inspection, which would be issued on a Form FDA 483.”

A puzzling footnote (footnote 11) says that FDA will not supply equipment for the virtual noninspection, nor can it accept equipment to conduct the virtual noninspection.  We suppose that the point is that the facility must provide owned or rented equipment to permit the virtual tour, but cannot give it to the Agency, or it might look like a bribe.

And don’t you dare ask for an “Interactive Evaluation” in lieu of an inspection.  “We will not accept requests from applicants or facilities for FDA to perform a remote interactive evaluation,” FDA says.  “Such decisions depend on many factors and information not always known to applicants or facilities, and it would be too burdensome on all parties to establish a request-based program.”

We wonder whether a prohibition on asking for an “Interactive Evaluation” would survive constitutional challenges based on First Amendment Free Speech rights, or the constitutional right to petition the government to redress grievances.  When a company responds to an Informational Letter that states their drug approval will be delayed because FDA insists on a pre-approval, or pre-license, inspection, what would be wrong with the company suggesting that a “Remote Interactive Evaluation” might be appropriate?  Where is the government’s compelling interest in prohibiting such a request?

Oh well.  To paraphrase the immortal words of Mick Jagger, “you can’t always get what you want, but if you try sometime you find, you get what you need” – after 13 months of reasoning, arguing, pleading and, finally, kvetching.

By Richard A. Lewis, Senior Regulatory Device & Biologics Expert —

During the February 3rd meeting of the IVD Town Hall that OHT-7 has been hosting since early on the pandemic Office Director Timothy Stenzel proudly proclaimed:

We have also really have ramped up our decisions. So we are currently over the last week averaging about nine decisions. That’s N-I-N-E, nine a day.

While we were initially encouraged by this update from Dr. Stenzel, we reserved judgment till we could look at more data.  We waited two months since the town hall in February to do a look back at Q1 2021 and the state of the play for IVD EUAs.

At the onset of our review we were puzzled. We are being told that the Agency was making up to 45 decisions a week, but why have we not been seeing more EUAs on the market? The answer, in part, is in the rest of Dr. Stenzel’s description from that same town hall as to what counts as a decision.

And some of these are of course new original authorizations…Many of them though are also supplements and amendments to existing EUAs…Also we consider a decision in our accounting when they issue and close out a pre-EUA feedback. And then of course there are negative decisions and those we don’t publicize typically… So not all of our decisions are publicly seen easily or at all…[W]e are working harder and faster than ever with more people whereas in the beginning of the pandemic…when we had an application making maybe one decision today. We’re now making nine decisions a day.

The monologue above raises a few key points that we will address individually.

1. Not all decisions are authorizations.

How many of the decisions are Authorizations? Let’s take a closer look at the data from 2021:

Table 1 – Positive Decisions on OHT-7 EUAs during Q1-2021

2021	Serology	Molecular	Antigen	Total
January	6	28	2	36
February	3	25	2	30
March	10	29	9	48

What we can glean from the data is that the first quarter of 2021 was once again dominated by RT-PCR reviews.  If the pace of nine decisions per day held true through the first quarter of the year, one would expect nearly 200 decisions per month.  As can be seen in the table above, OHT-7 never exceeded 50 positive decisions in a month.  The data in this table includes both new EUA authorizations and re-issued authorizations via the approval of supplements.  This means that the overwhelming majority of decisions that the office has made in the first quarter of 2021 was to close-out PEUAs or render negative decisions on pending EUAs.

2.  Not all authorization are new products

Let’s remove the decisions for supplements to existing EUAs and look at brand new authorizations.  Many of these decisions listed above fall away and we are left with the following:

Table 2 – New EUAs Authorized by OHT-7 during Q1-2021

2021	Serology	Molecular	Antigen	Total
January	5	4	1	10
February	1	10	1	12
March	4	10	6	20

When distilling down OHT-7’s track record in Q1 2021 to the new authorizations, we see that the pace of  authorizations has slowed to a crawl.  Over the first three months of the year OHT-7, on average, authorized a new EUA every 1.5 business days.  This does not bode well for companies that are in the process of submitting new EUA as less than half of all positives decisions are to bring a new device to market.

3.  Is OHT-7 working faster than the beginning of the pandemic?

Let’s compare new EUA authorizations from the most recent quarter to the first three months of the pandemic:

Table 2 – New EUAs Authorized by OHT-7 during the First Three Months of the Emergency

2020	Serology	Molecular	Antigen*	Total
February	1	2	0	3
March	4	20	0	24
April	9	25	0	34

The declaration of a public health emergency was not made until January 31, 2021.  The first EUAs were starting to trickle in during the beginning of February so it is expected that the first month of the pandemic shows slow progress. Additionally, the number of review staff dedicated to reviewing EUAs was only a fraction of the current review staff for COVID-19 response team as the scope and scale of the pandemic was not yet understood. Similar to Q1 2020, new PCR authorizations were dominant and higher than in Q1 2021. The number of serology EUAs authorized is still higher in the first three months of the pandemic than Q1 2021 even when taking into account FDA’s policy in March 2020 to allow serology tests on the market without prior FDA review.  The only category where 2021 outperforms the first three months of the pandemic in new authorizations is with antigen tests. The first antigen EUA was not authorized till May 8, 2020.  In light of the above, at the beginning of the pandemic OHT-7, on average, authorized a new EUA every business day.

During the first few months of the pandemic OHT-7 tried to walk and chew gum at the same time by reviewing EUAs and completing their normal review work as required by MDUFA.  This was the strategy employed when the emergency was declared for the Zika virus back in August 2016.  Similar to the Zika emergency, at the outset of the COVID pandemic review staff were not pulled from other divisions and the additional review work brought on by the EUAs was handled through the approval of overtime for existing staff.  However, once the significantly greater scope of the COVID pandemic became clear, the number of review staff dedicated to reviewing EUAs increased dramatically.

When taking into account the significantly higher EUA staffing levels in Q1 2021 than 2020, a full year of review experience with the EUA process, and a full workload to maximize output the pace of new device authorizations is far below the 2020 numbers.  With the data on hand we cannot confirm Dr. Stenzel’s claim that OHT-7 is working faster than ever on EUAs is true.

FDA needs to increase transparency within their review process by publishing key metrics:

• We recommend that FDA publish the average time with standard deviation from EUA submission to reviewer assignment stratified by technology (Serology, Molecular, Antigen) and Indication
• We recommend that FDA publish the average time with standard deviation for the authorization of a new EUA stratified by technology (Serology, Molecular, Antigen)
• We recommend that FDA publish the average time with standard deviation for the authorization of an EUA supplement stratified by technology (Serology, Molecular, Antigen)
• We recommend that FDA publish the average time with standard deviation to receive PEUA feedback stratified by technology (Serology, Molecular, Antigen)
• We recommend that FDA not include negative decisions in their metrics
• We recommend that FDA publish the number of pending EUAs and PEUAs
• We recommend that FDA publish the current number of review staff dedicated to IVD EUA reviews