Burden of “Right to Try” Implementation on Sponsors (for Now); Risk of Unexpected SAEs Negatively Impacting Development and Approval Still Remains

On May 30, 2018, the federal “Right to Try” law was enacted, creating a new legal framework for access to investigational drugs in limited situations outside of a clinical trial. See S. Rep. No. 204, 115 Cong. (2018). “Right to Try” was intended to reduce the regulatory burden of including FDA in the process for access, as well as to mitigate the risk that a negative clinical outcome, such as an unexpected serious adverse event (SAE), would have on development or approval.  As a result, the role of FDA in “Right to Try” use is minimized compared to that of Expanded Access (often referred to as “compassionate use”).  Instead, the burden of implementation is left to sponsors.

This reality became very evident when, in a June 1, 2018 email on implementation of the new law, Dr. Janet Woodcock, Director of the FDA Center for Drug Evaluation and Research (CDER), instructed the Center’s staff “…if you receive inquiries about the legislation from patients or physicians about a specific product, please refer them to the sponsor of the investigational drug or biological product.”  This is, at least in part, because Dr. Woodcock believes “…sponsors are in the best position to provide information on the development status of their products (which is critical to determining whether a drug or biological product is eligible for use under Right to Try)…”

As this post will highlight, patient access to an investigational drug under the “Right to Try” legislation requires that both the patient and the investigational drug be eligible. For now, sponsors must bear the burden of determining eligibility as FDA, in the words of Dr. Woodcock, is “reviewing the legislation…and working expeditiously to develop further information on how to respond to such inquiries.”  It remains unclear how much guidance FDA will provide given the Congressional intent for the Agency to be hands-off.

Determining Eligibility for “Right to Try” Use

Under the new law, for a patient to eligible for “Right to Try” use, s/he must have:

• Been diagnosed with a severely-debilitating or life-threatening disease as defined at 21 C.F.R. § 312.81;
• Exhausted approved treatment options and is unable to participate in a clinical trial involving the particular investigational drug (this must be certified to by a qualifying physician); and
• Provided written informed consent to the physician regarding the particular investigational drug.

It is not clear whether the sponsor or the physician is required to document either the certification regarding patient eligibility or the informed consent. It is also not clear how much information the sponsor should provide to the physician in order for that subject to be truly informed about the potential risks and benefits of the investigational drug.

For a particular investigational drug to be eligible, it must:

• Have completed a Phase 1 study (as described in 21 C.F.R. § 312.21);
• Have not been approved or licensed for any use;
• Be subject to a filed New Drug Application (NDA) or Biologics License Application (BLA) ; or be under investigation in a clinical trial that is both “intended to form the primary basis of a claim of effectiveness in support of approval or licensure” and is the subject of an active IND, as applicable; and
• Be under active development or production and not been discontinued by the manufacturer or be on clinical hold.

S. Rep. No. 204 § 2(C)(I)(II)(D). These final two eligibility requirements could be problematic for some sponsors that may not wish to disclose details of their development program that might otherwise be confidential, commercial information. Such details might include that the company has opened an IND, that a product is on clinical hold, that a particular study is intended to serve as the primary basis of a claim of effectiveness for approval, and the submission/filing status of its NDA or BLA.

For sponsors that would like to provide access to patients, but do not want to disclose such information, they can instead pursue traditional Expanded Access (note, a section of the law entitled “Sense of the Senate” explains that “Right to Try” is intended to act as “an alternative pathway alongside” the existing Expanded Access program).

The Extent of Regulatory Exemptions under ‘Right to Try’

While ‘Right to Try’ use of investigational drugs are exempt from many of FDA’s IND requirements (sections 502(f), 503(b)(4), 505(a), and 505(i) of the Federal Food, Drug, and Cosmetic Act, section 351(a) of the Public Health Service Act, and parts 50, 56, and 312 of title 21, Code of Federal Regulations), it is still subject to the regulations requiring certain labeling of an investigational drug (21 C.F.R. 312.6), prohibitions against preapproval promotion of the drug (21 C.F.R. § 312.7), and limitations on costs that can be charged for an investigational drug (21 C.F.R. § 312.8(d)(1)).

There is also a separate new requirement for sponsors who allow “Right to Try” use to submit an annual report to FDA that includes:

• Number of doses supplied;
• Number of patients treated and for what uses; and
• Any known serious adverse events.

Ultimately, and similar to Expanded Access, there is no requirement for a sponsor to provide access to an investigational drug. In fact, the law exempts sponsors from any litigation related to not supplying an investigational drug under ‘Right to Try,’ and shields the sponsor and physician from most litigation in cases that the sponsor does supply of the investigational drug.

Protections Against Using ‘Right to Try’ Outcomes in FDA Decision-Making?

While generally, the new law proscribes that clinical outcomes associated with the “Right to Try” use of an investigational product may not be used to delay or adversely affect the review or approval of a drug, the law also allows for the use of this information by FDA if it determines that such clinical outcomes are “critical to determining the safety” of the product. This authority is broad so the fact that an unexplained SAE may occur in the “Right to Try” context could still be a disincentive to companies from offering such access.  Even if FDA issues regulations or guidance to provide information on how it plans to implement this authority, and even if such a policy provides that an unexpected SAE would only result in a clinical hold or other impact on drug development in rare instances, this is still a risk that must be taken into account by responsible sponsors when deciding whether to offer an investigational drug under “Right to Try.”

It is also worth noting that a sponsor may request that FDA use outcomes from “Right to Try” use of its product.

As a way to put a “check” in place on FDA, Congress requires FDA to publish an annual report to its website that provides how many times it utilized clinical outcomes from “Right to Try” use, broken down by whether it was requested by the sponsor or not, as well as the number of times such clinical outcomes were not used.