FDA Announces Resumption of Domestic Inspections – Will Foreign Inspections Soon Follow?

On July 10th, FDA announced its goal of restarting domestic on-site inspections beginning the week of July 20th.  The regions of the U.S. that will be on the receiving end of these inspections are those that the agency’s rating system demonstrates are the safest for conducting prioritized inspections.  Apparently, the rating system assesses the number of COVID-19 cases in localities based on both state and national data.

The Advisory Level is based upon the outcome of three metrics: Phase of the State (as defined by the White House guidelines) and statistics measured at the county level to gauge the current trend and intensity of infection. When each of these is taken into consideration, the FDA will identify regulatory activities that can occur within the given geographic region. The three main categories of regulatory activity at the county level will be: mission critical inspections only, all inspections with caveats to help protect staff who have self-identified as being in a vulnerable population and resumption of all regulatory activities.

This is all well and good, but the bulk of inspection sites, particularly drug and biologic manufacturing facilities, are outside the United States, and that’s where the major backlog is.  Indeed, according to Congressional testimony provided by FDA officials in June of this year, the U.S. only accounted for one quarter of all Active Pharmaceutical Ingredient (API) manufacturing, and less than half of all Finished Dosage Form (FDF) manufacturing.

It remains unclear when on-site foreign drug and biologic inspections will resume, but arguably, FDA should be able to restart those soon based on the same principles FDA has outlined above regarding domestic inspections.  In countries where the testing is widespread and reliable, where epidemiological information from such governments can be trusted, and where the data shows an analogous concentration of COVID-19 cases as what is considered acceptable for domestic inspections, FDA should be able to resume on-site foreign inspections.  Of course, FDA investigators will need to be able to get to their foreign destinations, meaning that the entry of Americans into the countries in question will need to be permitted.

Failing a resumption of foreign on-site inspections soon, it is unclear what FDA’s plan is to resolve the existing backlog, and that is presumably worsening by the week.  As a result of the COVID-19 pandemic, FDA suspended foreign on-site inspections in early March of this year, except for those deemed “mission critical.”

It is also reasonable to assume that this suspension in inspections has, or will soon be, worsening the drug shortage situation, as foreign manufacturing facilities that have been designated by FDA as Official Action Indicated (OAI) are generally unable to obtain approval of Abbreviated New Drug Applications, New Drug Applications and Biologics License Applications without an improvement in facility status to Voluntary Action Indicated (VAI).  Furthermore, these facilities are hampered from taking on new drug development opportunities as sponsors are reluctant to risk contract manufacturing with a facility for which they do not see a plausible end to OAI status (i.e., little chance for quick FDA re-inspection).

Furthermore, FDA appears unwilling, or unable, to use its statutory authority under section 706 of Food and Drug Administration Safety and Innovation Act (FDASIA) (codified at 704(a)(4) of the Federal Food, Drug, and Cosmetic Act (FDCA)) to conduct so called “record review” to resolve the OAI status at these facilities.

(4)(A) Any records or other information that the Secretary may inspect under this section from a person that owns or operates an establishment that is engaged in the manufacture, preparation, propagation, compounding, or processing of a drug shall, upon the request of the Secretary, be provided to the Secretary by such person, in advance of or in lieu of an inspection, within a reasonable timeframe, within reasonable limits, and in a reasonable manner, and in either electronic or physical form, at the expense of such person. The Secretary’s request shall include a sufficient description of the records requested. [emphasis added]

Indeed, FDA officials have been quoted over the past few weeks as saying that if the FDA is not on-site at the manufacturing facility, then whatever remote FDA facility review takes place “cannot be an inspection” for purposes of the FDCA, and therefore presumably cannot resolve a firm’s OAI status.  That seems like an unduly restrictive interpretation of the agency’s statutory authority.  Arguably, if FDA had maintained such a restrictive construction of the FDCA over the 80 years since its enactment, the agency would have had to abandon some of the authority it currently exercises and takes for granted.

In summary, one of three occurrences are likely over the coming months: either on-site foreign inspections will resume; FDA will loosen its overly restrictive interpretation of section 704(a)(4) of the FDCA regarding “record review”; or we can expect a worsening of America’s drug shortage and a slowing of the availability of new drugs.  Here’s hoping that it won’t be the latter.