Attorney East Hampton

By Riëtte van Laack & Ricardo Carvajal —

As we previously speculated might come to pass, FDA announced that it is amending the food additive regulation for synthetic flavoring substances and adjuvants (21 C.F.R. § 172.515) to remove six substances found to induce cancer in animals, namely benzophenone, ethyl acrylate, eugenyl methyl ether (methyl eugenol), myrcene, pulegone, and pyridine. FDA’s action is not predicated on concerns about the safety of the uses of the substances in question.

FDA’s rule responds to a 2015 food additive petition (FAP) by a group of non-government organizations (NGOs), which provided evidence that the flavoring substances cause cancer in laboratory animals. Based on FDA’s review of safety data, the Agency concluded that these substances do not pose a public health risk as a human carcinogen under the conditions of their intended use. The substances appear in food items at very low levels, and the studies presented by the NGOs involved exposing laboratory levels to much higher doses. Additionally, with the exception of the data concerning methyl eugenol, the data from the animal studies demonstrated that the modes of action of carcinogenicity of the substances are not relevant to humans. Nevertheless, the Delaney Clause requires that FDA consider these substances to be “unsafe” as a matter of law. FDA noted that “the use of these synthetic flavoring substances and adjuvants does not affect the legal status of foods containing natural counterparts or non-synthetic flavoring substances extracted from food, and there is nothing in the data FDA has reviewed in responding to the pending food additive petition that causes FDA concern about the safety of foods that contain natural counterparts or extracts from such foods.” Companies have until October 9, 2020 (i.e., two years from publication of the final rule) to identify suitable replacement ingredients and reformulate food products that contain any of the six substances.

In an accompanying rule, FDA also removed styrene from the list of approved synthetic flavoring substances and adjuvants, without reviewing its safety. That action was taken in response to a 2016 FAP submitted by the Styrene Information and Research Center that requested the removal of styrene because its use has been permanently abandoned. Thus, a safety review would have been irrelevant.

The NGOs also had requested that FDA establish zero tolerances in § 172.515 for the seven additives. However, as FDA explains, a food additive regulation is not the appropriate vehicle for establishment of a “zero tolerance.” Consequently, FDA did not further address this request in either rule.

By Rachael E. Hunt —

Last month, FDA announced a plan for revamping the 510(k) Third Party Review Program (the “Program”), which was outlined in a publication, Eliminating Routine FDA Re-Review of Third Party 510(k) Reviews (the “Plan”). One element of the Plan includes the issuance of a draft guidance, “510(k) Third Party Review Program.”[1]  With the issuance of this Plan and draft guidance, it appears that FDA is conceding what we and our readers already know; the Third Party Review Program has been less than effective.  Ideally, the review and recommendation provided by the Third Party Reviewer reduces the time and resources needed from FDA to make a determination regarding a 510(k) submission.  This allows more resources to be focused on high-risk, more complex devices without compromising the quality of review of the lower risk devices.  In practice, however, the program has been grossly underutilized, and the few that do participate experience little to no greater efficiency because of FDA’s routine re-review of the submission.  To address this issue, the Plan describes how FDA is updating its 510(k) Third Party Review Program.

Overview of the Current Third Party Review Program

In its current form, FDA’s Third Party Review Program, formerly known as the Accredited Persons Program, allows sponsors to submit 510(k) applications for devices with eligible product codes to a Third Party Reviewer, who uses FDA criteria to evaluate the 510(k) submission. The Reviewer then sends the submission to FDA with a recommendation that the device is Substantially Equivalent or Not Substantially Equivalent.  FDA has thirty days to make a final determination.  However, sometimes FDA re-reviews all or part of a 510(k) submission before making a final determination.  All too frequently, FDA requests additional information from the Third Party Reviewer or places the submission on hold pending receipt of additional information.  This effectively negates any intended efficiency of the Program.

Overview of FDA’s Proposed Changes

As has been the case, FDA will be limiting eligibility for Third Party Review to certain device types which generally present a lower risk to users. Previously, the devices eligible for Third Part Review were defined by criteria set in statute.  The FDA Reauthorization Act of 2017 (FDARA) provided FDA with the authority to tailor the list of eligible devices and directed FDA to provide guidance regarding how a device type, or subset of a device type, will be eligible for Third Party Review.  This allows FDA more flexibility to include devices that were previously ineligible for Third Party Review.

The draft guidance document, “510(k) Third Party Review Program,” outlines the factors that FDA will consider when determining which device types are eligible for Third Party Review. These factors include the risk profile of the device, the extent to which a Third Party Reviewer would have access to the information needed to make a well-informed decision, the extent to which the review requires multifaceted interdisciplinary expertise, and the extent to which post-market safety data should be considered.  Product codes eligible for Third Party Review will still be identified on FDA’s product code classification database.

The draft guidance also outlines FDA’s process for Recognition, Rerecognition, Suspension and Withdrawal of Recognition for Third Party Review Organizations. This is the process by which a company becomes a Third Party Reviewer and how they demonstrate to FDA that their submissions do not need to be entirely re-reviewed.  While Third Party Reviewers must be approved by FDA to participate in the current program, the new Plan appears to set higher standards and hold Reviewers accountable for submissions that require re-review.  FDA will conduct periodic audits of Third Party Review Organizations and perform statistical tracking of submission efficiency metrics.  In uncharacteristic transparency, these metrics will be published in the Third Party Review Organization Performance Report, posted every quarter to the Third Party Performance Metrics page on FDA’s website.  The Report will provide insight into efficiency at all stages of the review process and allow industry to make a more informed decision when hiring a Third Party Review Organization.

FDA’s plan appears well thought out and thorough, leaving us with cautious optimism that it will provide a meaningful alternative to the 510(k) submission process for eligible devices.

[1] This draft guidance constitutes the reissuance of the draft guidance titled, “510(k) Third Party Review Program – Draft Guidance for Industry, Food and Drug Administration Staff, and Third Party Review Organizations,” issued on September 12, 2016. See our blog post on that draft guidance here. When final, this draft guidance will supersede “Implementation of Third Party Programs Under the FDA Modernization Act of 1997; Final Guidance for Staff, Industry, and Third Parties,” issued on February 2, 2001; and “Guidance for Third Parties and FDA Staff; Third Party Review of Premarket Notifications,” issued on September 28, 2004.

By Karla L. Palmer —

Late last month, FDA published revised draft guidance, titled “Insanitary Conditions at Compounding Facilities: Guidance for Industry.”  The revised guidance comes two years after FDA released its August 2016 draft guidance addressing what it considers “insanitary conditions” during inspections of both Section 503A pharmacies and Section 503B outsourcing facilities (collectively, “compounding facilities”).  What has changed from that initial draft (see our previous post here)? The revised  guidance contains far more detail about “insanitary” conditions FDA has actually observed over the past two or three years at compounding facilities, and which are violative of FDCA section 501(2)(A).  Interestingly, during the evolution (and increase) of FDA’s inspections of compounding facilities since the New England Compounding Center tragedy, FDA has focused  on both the specific statutory requirements in Section 503A (e.g., must compound for individually identified patients, and not essentially copies, etc.),  and 503B (e.g., must compound from ingredients on Bulks List 1, and not essentially copies, etc.).  It also seems to be placing heightened emphasis on entities that compound under more vaguely defined “insanitary conditions,” and thus may violate of section 501(2)(A)).  A compounder that compounds in violation of Section 501(2)(A), or the specific provisions of sections 503A and 503B, loses certain important statutory exemptions for compounders (such as new drug, adequate directions for use, and exemptions from cGMP regulations if a Section 503A compounder).   For physician compounders, however,  the guidance contains an important “footnote 2.”  FDA states that it “generally does not intend to take action under Section 501(a)(2)(A) against a physician who is compounding or repackaging a drug product, or who is mixing, diluting or repackaging a biological product, provided that such activities occur in the physician’s office where the products are administered to dispensed to his own patients.”  Revised Guidance at 1, n 2.

Thus, the revised guidance serves as a much needed, detailed guideline of what FDA expects from a compounding facility that produces either sterile or non-sterile drug products.  Compounders should study the document so that they have a thorough understanding of what FDA has observed at other facilities, and thus FDA’s thinking about what it considers “insanitary conditions.”  For most of the conditions listed in the revised guidance, compounders probably will say “of course those conditions should not be present….”  Notwithstanding that sentiment, FDA has observed all of these conditions to date (and likely more…).  In sum, the guidance is a well-crafted reminder of what compounders should look for, and correct, at their own facilities to stay out of the Agency’s crosshairs.

A few “observations” of particular interest:

• Concerning sterile and non-sterile drugs, FDA lists several conditions that could cause patient harm when present in both non-sterile and sterile drug production. Some of these conditions include (but are not limited to) vermin, visible microbial contamination, standing water, or construction in the production area. FDA also specifically addresses the handling of hazardous, sensitizing or highly potent drugs. FDA notes it has observed inadequate segregation, control, and cleaning concerning such drug products. Finally, FDA states that it has observed use of both active and inactive ingredients with higher levels of impurities than pharmaceutical grade or compendial equivalents.
• Concerning the production of sterile drug products, FDA walks through a detailed litany of considerations for gowning and aseptic practices, equipment and facilities, sterilization, and other general insanitary conditions.
• Corrective actions for insanitary conditions. Although all insanitary conditions identified should be evaluated and corrected immediately, FDA provides a list of conditions that it has observed and considers “particularly serious.” FDA states that if any one of these conditions exists, then the Agency “strongly recommends” that the facility immediately initiate a recall and cease sterile operations until the condition has been corrected. These conditions are listed at pages 9-10 of the revised guidance.

The comment period closes on November 26, 2018.

By Josephine M. Torrente & Gugan Kaur —

In determining whether to submit a Formal Dispute Resolution Request (FDRR) appealing a Complete Response Letter (CRL) or other adverse action from FDA’s Office of New Drugs (OND), applicants necessarily consider how often such appeals are successful. The most cited relevant statistics were published by FDA in 2016.  The analysis reported that, during the time period from 2003 to 2014, “[o]f the 140 unique appeals accepted and reviewed [131 of which were in OND], CDER granted 23 (16%) appeals and denied 117 (84%).”  Eighty-four percent denied!  Why would anyone appeal?  Because “Denial,” like beauty, is in the eye of the beholder.  In our experience, “Denials” often conceal important “Wins” in the sense of establishing a more favorable path to approval than originally presented by the review division.

For example, consider three distinct cases with highly similar outcomes that we were involved in: The first was an sNDA for a drug intended to treat a life-threatening condition; the second an NDA for an NCE that would be the first drug approved for what turned out to be a controversial symptomatic indication; and the third a 505(b)(2) NDA for an improved version of an existing therapy. For the first case, the sNDA, the applicant appealed the review division’s issuance of a second CRL which maintained that the applicant needed to conduct one or more additional adequate and well-controlled studies to demonstrate efficacy and safety of the drug.  On appeal, OND technically “Denied” the client’s request but rather than require additional Phase 3 work, OND stated that it believed an advisory committee should review the data to determine if the benefits outweighed the risks.  The drug was eventually approved with no additional Phase 3 data after a positive vote at the committee meeting.  FDA’s published analysis tallied this as two “Denied” appeals while we count it as a single “Win.”  FDA counts it as two appeals because the CRL was issued by the review division rather than the immediate office, therefore requiring two rounds of review before arriving at OND.  We had alerted the client to the likelihood that the issues under appeal would require OND review and budgeted our time and resources accordingly.  As such, we and the client considered the process as a single appeal.

In the second case, the CRL (which required an additional Phase 3 study) was issued at the immediate office level because the drug was an NCE. The FDRR therefore went directly to OND.  As in the example above, OND “Denied” the appeal, but recommended resubmission with no new Phase 3 data and the convening of an advisory committee.  Again, the vote was in favor of approval and the drug was approved with no additional Phase 3 work.  The FDA published analysis considers this case a single “Denial,” while we consider it a “Win.”

In the third case, the 505(b)(2) application, OND, during a second round appeal, disagreed with both the applicant and the review division on the method for handling missing data. OND “Denied” the appeal and suggested a third statistical method of analysis.  Application of OND’s own preferred method resulted in a statistically significant result and approval of the drug with no new studies.  As above, FDA would count this as two “Denials,” while we see it as a single “Win.”

In our practice, these experiences are not out of the ordinary. We seek to come to a mutual understanding with the client of what an appeal “Win” might look like, the likelihood of obtaining such a “Win,” and how many rounds of review might be needed.  To the extent that the achievable “Wins” are either too modest or too remote, we would not advise submission of a FDRR.  In our experience then, the FDRRs that we pursue are the subset most likely to result in a palatable path forward regardless of the “Granted” or “Denied” designation.

Our most recent history tracks this pattern.  From 2015 through 2018, we assisted with at least nine products that completed the FDRR process.  We believe FDA would count the FDRRs for these nine products as ten twelve appeals, with three appeals “Granted” and nine “Denied” (due to counting each appeal level as a unique FDRR). By our count, two products were not offered any improved path forward, which we would count as losses, while seven products had “Wins” in that the applicant was provided with an alternative, more favorable path forward to approval than what was originally presented by the review division.  This difference is important when considering the FDA reported statistics.  By FDA’s count, our three-year track record would be 25% Granted versus 75% Denied.  By our clients’ count, there were 78% Wins versus 22% Losses.  We like those odds much better.

By Kalie E. Richardson & Alan M. Kirschenbaum —

Last Wednesday, October 3, a wide-ranging opioid bill cleared its last legislative hurdle by passing the Senate, and is expected to be signed by the President in the near future. H.R. 6, the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment (“SUPPORT”) for Patients and Communities Act, makes sweeping changes intended to combat the ongoing opioid abuse crisis. We will be blogging on several SUPPORT provisions in the upcoming days.

Buried in the 250-page bill is Section 6111, entitled “Fighting the Opioid Epidemic with Sunshine,” which expands reporting requirements under the Physician Payments Sunshine Act (“Sunshine Act”) to include additional types of healthcare practitioners. This expansion in scope is only tangentially related to the Opioid epidemic, as it applies to applicable manufacturers of all types of drugs – not just opioids – as well as biologics and devices.

The Sunshine Act, which was originally enacted as Section 6002 of the Affordable Care Act in 2010, requires applicable manufacturers of certain drugs, medical devices, and biologics that are paid for by Medicare, Medicaid, or the Children’s Health Insurance Program to report payments or other transfers of value made to “covered recipients.” 42 U.S.C. § 1320a–7h(a). (As a refresher, our blog post on the implementing CMS regulations is available here.) Under the Sunshine Act, the definition of a “covered recipient” was limited to physicians and teaching hospitals. Id. § 1320a–7h(e)(6). SUPPORT expands the definition of covered recipient to include:

• A physician assistant, nurse practitioner, or clinical nurse specialist
• A certified registered nurse anesthetist
• A certified nurse-midwife

The new provisions will apply “with respect to information required to be submitted under section 1128G of the Social Security Act [the Sunshine Act] on or after January 1, 2022.” The phrase “information required to be submitted” most likely refers to the report that is to be submitted after the specified date. The first report due after January 1, 2022 will be the March 2022 report on calendar year 2021, which means that the reported 2021 data must include payments to the new covered recipient categories. However, the issue is not entirely free from doubt: some might argue that the January 1, 2022 effective date applies to payments and other transfers of value made after that date, so that data on the new categories of covered recipients would begin to be collected in calendar year 2022 and would not be reportable until March 2023. CMS will undoubtedly amend its implementing regulations (42 C.F.R. § 403.900 et seq.) through a notice and comment rulemaking, in which we can expect CMS to articulate its position on the effective date.

By Sara W. Koblitz —

For years, FDA has been looking to reform the Citizen Petition process to address allegations of “gaming” the system to delay competitor approval. This led to the creation of the “505(q)” petition by Congress in 2007 as part of FDAAA, the subsequent revision of the 505(q) provision under FDASIA in 2012, and the publication of a companion guidance in 2014.  Along the way, FDA has referred at least one company – Shire – to the FTC for anticompetitive enforcement after years of complaints about “sham petitioning.”  With a significantly revised guidance addressing 505(q) petitions, FDA is continuing to address the issue.

As part of the Commissioner’s Drug Competition Action Plan to increase prescription drug competition and facilitate access to affordable medicines, FDA published a revised 505(q) guidance earlier this week.  The revised guidance includes much of the same information from the original 2014 version: the elements necessary to be considered a 505(q) petition, the requirement for a certification, the response timeline, and so on and so forth.  But FDA has added a lot more detail and more explanation about its processes.  For example, in the 2014 version, FDA explained that 505(q) applies only to petitions pending when it would delay at least one ANDA, 505(b)(2), or 351(k) application, but didn’t explain how it would make the determination of delay.  In this version, FDA clarifies that the relevant ANDA, 505(b)(2), or 351(k) must have a user fee goal date on or before the 150-day deadline for Agency action on the petition to constitute delay in an effort to align review of the petition and review of the application.  Additionally, FDA applies a “but for” test to the question of delay: Would the application be ready for approval but for the issues raised by the petition?  If the answer is no, or there is no pending application or a user fee goal after 150 days, then the petition is a “normal,” non-505(q) petition – and not entitled to a response within 150 days.

After evaluating eligibility as a 505(q) petition, FDA then considers whether the petition in question implicates public health. If the application were approved before FDA reviewed the issues in the petition and determined the petitioner’s argument meritorious, FDA will look at whether the marketing of the drug product in question would negatively affect public health.  Issues that could implicate the public health include bioequivalence to the reference listed drug or the safety of a labeling carve-out.  These examples are the issues cited in many 505(q) petitions alleged to delay approval.  It’s therefore questionable whether this element will knock many petitions out of the 505(q) category.

This guidance also further explains how FDA will determine that a petition was filed with the “primary purpose” of delaying approval of an application as described in section 505(q)(1)(E), which allows the Agency to summarily deny the petition.  This here is the meat of the guidance revision.  It explains that FDA expects to consider the following:

• If the date that relevant information relied upon in the petition became known or should have become known to the petitioner indicates that the petitioner has taken an unreasonable amount of time to file the petition;
• Serial submissions with issues that should have all been raised in an earlier petition;
• Submission of a petition close in time to expiration of patent or exclusivity period;
• Submission of a petition without any data or information in support of the scientific positions set forth in the petition;
• Submission of a petition raising the same or substantially similar issues as a prior petition to which FDA has already substantively responded, particularly where the subsequent submission closely follows in time the earlier response;
• Submission of a petition concerning standards for approval of a drug product for which FDA has provided an opportunity for public input (i.e., guidance) and the petitioner has not provided comment other than through the petition;
• Submission of a petition requesting that other applicants must meet standards for testing, data, or labeling for their products that are more onerous or rigorous than the standards applicable to the reference listed drug and/or petitioner’s version of the same product; and
• The history of the petitioner with the Agency.

If FDA determines that a petition has been submitted with the primary purpose of delaying an application, then FDA will decide whether the petition may be summarily denied under 505(q)(1)(E). Such an analysis is done on a case-by-case basis.

If FDA determines that a petition has been submitted with the primary purpose of delaying an application, the agency intends to refer the matter to the FTC. While FDA has rarely referred matters to the FTC, particularly with respect to Citizen Petitions, the affirmative language used in this guidance rather than the typical “may” indicates that FDA may take this step more often in the future.  This raises further questions given the District Court’s recent dismissal of the Shire matter questioning FTC’s authority to bring suit for past violations of the FTC Act.  FTC has appealed this decision to the Third Circuit, but for now, District Courts have relied on the Shire ruling to dismiss other cases.

By Adrienne R. Lenz —

On September 25, 2018, FDA issued a final guidance document: Benefit-Risk Factors to Consider When Determining Substantial Equivalence in Premarket Notifications (510(k)) with Different Technological Characteristics (“guidance”).  A draft of the guidance was issued on July 25, 2014.  When reviewing device 510(k)s, FDA’s review of substantial equivalence first asks whether the new device and predicate device have the same intended use.  FDA will next look at whether there are technological differences, and if so, will evaluate if those differences raise different questions of safety or effectiveness.  If there are not different questions of safety or effectiveness, FDA will then review test methods and data to determine if the data demonstrate substantial equivalence.  The new guidance addresses this last step in the review process where FDA determines if the new device is as safe and effective as the predicate device.

The guidance states “the benefit-risk profile of a new device does not need to be identical to be as safe and effective as the predicate device” and discusses scenarios where a device with a different benefit-risk profile may be considered substantially equivalent (SE). Guidance at 10.  The guidance further describes the types of submissions where FDA would recommend sponsors include a benefit-risk assessment within the 510(k).  For devices where the benefit-risk profile includes an increased or equivalent benefit with a decreased or equivalent risk, “FDA will generally determine the device SE” and a benefit-risk assessment in the 510(k) will not be needed. Id. at 12.  If the new device has increased risk with a decrease in benefit, the guidance states that “FDA will generally determine the device NSE [not substantially equivalent] to the predicate device” and conducting a detailed risk-benefit analysis would also not be warranted. Id. at 12.  For situations where there is an increase in risk with an increase or equivalent benefit or a decrease or equivalent risk with a decrease in benefit, including a benefit-risk assessment within the 510(k) is warranted.

The guidance states that FDA will take up to 60 days to operationalize the process and will not request benefit-risk information within that period. Sponsors should plan to include benefit-risk information in future applications or to provide upon request during review.  While specific guidance on how to document the benefit-risk assessment is not provided, a number of criteria for performing the evaluation are discussed.  In considering a device’s benefit, attention should be given to the:

• magnitude of the benefit,
• probability of the patient experiencing one or more benefits, and the
• duration of the beneficial effect.

For assessing risk, the analysis should consider the:

• severity, type, number, and rates of harmful events,
• probability of a harmful event,
• probability of the patient experiencing one or more harmful events,
• duration of harmful events, and
• risk from false-positive or false negative results for diagnostic devices.

Finally, a benefit-risk assessment should consider additional factors, including uncertainty, characterization of the disease or condition, the use of innovative technology, patient tolerance for risk and their perspective on benefit, benefits for the health-care professional, patient or caregiver, risk mitigation and postmarket data.

The guidance concludes with several examples that should be helpful to sponsors in preparing and documenting the benefit-risk assessment for 510(k) submissions. The guidance is intended to “improve the predictability, consistency, and transparency of the 510(k) premarket review process” and appears that it should provide these benefits. Id. at 4.

By David C. Gibbons & McKenzie E. Cato & Alan M. Kirschenbaum —

On September 28, 2018, the Pharmaceutical Research and Manufacturers of America (PhRMA) filed an Amended Complaint seeking declaratory and injunctive relief against implementation and enforcement of California Senate Bill 17 (SB 17). On August 30, 2018, the United States District Court for the Eastern District of California granted the State of California’s Motion to Dismiss PhRMA’s original Complaint filed on December 8, 2017. We previously blogged on SB 17 here and PhRMA’s lawsuit here and here. PhRMA’s Amended Complaint can be accessed here.  SB 17, which went into effect on January 1, 2018, imposes notification and reporting requirements on pharmaceutical manufacturers for certain price increases on their products sold to state purchasers, insurers, and pharmacy benefit managers in California.

In summary, the district court dismissed PhRMA’s original Complaint on procedural grounds, without prejudice, granting PhRMA leave to amend its Complaint within 30 days. Granting, in part, California’s Motion to Dismiss, the district court held that Governor Brown, who was sued in his official capacity as a state official, did not have a direct connection with the enforcement of SB 17, but rather only had “general oversight” over the state’s executive branch and, therefore, was immune from PhRMA’s lawsuit. Memorandum and Order at 7, PhRMA v. Brown, No. 2:17-cv-02573 (E.D. Cal. Aug. 30, 2018) [hereinafter Order].

The district court also dismissed PhRMA’s lawsuit for lack of standing. Id. at 10. An association, like PhRMA, has standing to bring a lawsuit on behalf of its members “when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the association’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members [in the lawsuit].” Defs.’ Memorandum of Points and Authorities in Support of Motion to Dismiss at 10, PhRMA v. Brown, No. 2:17-cv-02573 (E.D. Cal. Jan. 26, 2018) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 181 (2000)). The court held that PhRMA’s assertions regarding the potential harm that may be incurred by its members were speculative, citing “a long-settled principle that standing cannot be inferred argumentatively from averments in the pleadings,” and must be based on allegations of facts essential to demonstrate jurisdiction. Order at 10.

In its Amended Complaint, PhRMA addressed the defect with respect to standing, but dropped Gov. Brown as a Defendant. The Amended Complaint includes new information describing how the alleged constitutional flaws of SB 17 directly harm individual PhRMA member companies. Since the notice requirement became effective, PhRMA states, several of PhRMA’s member companies have filed advance notices of price increases “in violation of their constitutional rights.” Amended Complaint at 33, PhRMA v. Brown, No. 2:17-cv-02573 (E.D. Cal. Sept. 28, 2018). To illustrate its assertion, PhRMA attached to the Amended Complaint an anonymized example of one such notification made by a member company. In addition, the Amended Complaint notes that some PhRMA member companies have taken price increases on particular drugs during the statutory 2-year look-back period that have exceeded the 16 percent reporting threshold. If SB 17 is retroactive, which the California Office of Statewide Health Planning and Development (OSHPD) has not clarified to date, companies could not institute any price increase on their products without triggering the requirement to disclose information and make public statements to which they object. Id. The Amended Complaint states that PhRMA members are “faced with a Hobson’s choice: they can either act as though the law is retroactive, ensuring they are in compliance with a harmful and unconstitutional law; or they can refuse to make retroactive calculations and face a risk of enforcement action.” Id. at 35. Due to the ambiguity of the statute, PhRMA explains, the member companies cannot make the price increases now because of the risk that OSHPD will later charge them with a violation under the statute.

We will continue to track developments in this litigation, including whether PhRMA has pleaded sufficient additional facts to establish its standing as a Plaintiff in this matter.

By Riëtte van Laack —

On September 24, the Information Technology and Innovation Foundation (ITIF) petitioned FDA to prohibit the use of the term “Non-GMO” on consumer foods and goods because according to ITIF the claim is misleading.

Although the Petition focuses on the Non-GMO Project Verified “butterfly” logo, it asks FDA to prohibit any non-GMO claim. Some of Petitioner’s arguments against use of the non-GMO claim are:

• The definition of GMO used by the Non-GMO Project is not “scientifically defensible.” Petitioners claim that the “arbitrarily stipulated definition presupposes humans and human activity are necessarily distinct and separate from anything that may be considered ‘natural.’”
• The implied claim that GMO (as defined by Non-GMO Project) is less safe compared to non-GMO is not supported by science; citing the U.S. National Academy of Sciences, Petitioners claim that “[s]afety is entirely dependent on the specific characteristics involved, and those are independent of how they came to be.”
• The term GMO has “no universally accepted and understood meaning[], and, . . . they provide no information relevant to health, safety, or nutrition that would be useful to a consumer contemplating food purchase choices. They are inescapably confusing and intrinsically misleading.”
• The claim is used on foods for which no “GMO” counterpart exists; even on foods, such as salt, that could never be genetically modified.

Petitioner contends that the allegedly misleading and inaccurate statements cause products with non-GMO claims to be misbranded. Petitioner asks that “FDA put an end to [the] fraudulent scheme and protect consumers from misleading and deceptive food labels as the law requires.”

The Petition as submitted would appear to have little chance of achieving its stated objective. Petitioner does not provide research to show that consumers purchase non-GMO foods because they are concerned that GMO foods are unsafe or that consumers are misled by the non-GMO claim. Petitioner also does not acknowledge FDA’s 2015 guidance regarding voluntary claims about foods that are or are not derived from genetically engineered plants. Furthermore, a proposal to ban non-GMO claims would encounter stiff opposition, given the wide use of those claims.

By Hyman, Phelps & McNamara, P.C. —

Do you want to understand the latest in FDA’s fast and furious rollout of guidance documents addressing FDA’s regulation of compounding pharmacies and outsourcing facilities? Don’t miss FDANews’ Webinar featuring Hyman, Phelps & McNamara, P.C.’s compounding expert and blogger Karla Palmer, presenting on “Pharmacy Compounding Regulation: Deconstructing Latest Guidance, Compliance & Enforcement Activities.” The webinar will occur on Tuesday, October 16, 2018, from 1:30-3:00PM. For more details about this insightful webinar, including agenda and how to register, see here.  FDA Law Blog readers can receive a 20% discount off the registration fee by using promo code VIP20.