Over the past few weeks, Congress has taken an acute interest in a broad range of FDA issues and FDA-regulated products, penning several letters and holding or expressing intent to hold hearings and investigations on various matters.  Below is a list of recent congressional activity:

• On January 7, 2008, the U.S. House Energy and Commerce Committee sent a letter to Pfizer concerning an investigation of LIPITOR (atorvastatin calcium) direct-to-consumer advertisements involving Dr. Robert Jarvik (the inventor of the artificial heart);

• On January 16, 2008, the U.S. House Energy and Commerce Committee sent a letter to the Government Accountability Office (“GAO”) concerning the study of behind-the-counter drugs (see FDA Law Blog Post here);

• On January 22, 2008, several influential Democrats sent a letter to FDA criticizing the Agency’s decision to issue a proposed rule clarifying its Changes Being Effected Supplement regulations (see FDA Law Blog Post here);

• On January 22, 2008, the U.S. House Energy and Commerce Committee sent a letter to the acting administrator of the Centers for Medicare & Medicaid Services concerning an investigation into VYTORIN (ezetimibe; simvastatin).  Other letters were sent to the American Heart Association, the American College of Cardiology, and Schering-Plough Corporation.  These letters followed January 16, 2008 letters sent to Schering-Plough and Merck & Co. and FDA concerning VYTORIN and direct-to-consumer advertisements.  The U.S. Senate Finance Committe has also weighed in, and has sent letters to various organizations and the Securities and Exchange Commission;

• On January 25, 2008, the U.S. House Energy and Commerce Committee issued a memorandum concerning a business meeting to vote on the issuance of subpoenas for witnesses and documents in connection with the Subcommittee on Oversight and Investigation’s ongoing investigation of KETEK (telithromycin).  On January 29, 2008, it was announced that the subpoenas would be issued;

• On January 25, 2008, members of the U.S. House Energy and Commerce Committee commented on FDA’s plans to station inspectors in the developing world to improve the Agency’s import program;

• On January 29, 2008, the U.S. House Energy and Commerce Committee held a hearing, titled “Science and Mission at Risk: FDA’s Self-Assessment.”  At the hearing, GAO released two reports, one on challenges for FDA on conducting manufacturer inspections, and the other on FDA’s food protection plan; and

• On January 30, 2008, Sen. Charles Grassley (R-IA), Ranking Member of the U.S. Senate Finance Committee, sent a letter to GlaxoSmithKline concerning a leaked New England Journal of Medicine manuscript about a clinical study concerning AVANDIA (rosiglitazone maleate).

One of the most recent missives is a letter sent by Representative Henry Waxman (D-CA) and Senator Edward Kennedy (D-MA) to the GAO requesting an examination of FDA’s oversight of food, user fees, and Information Technology (“IT”).  According to the letter:

Despite its growing list of responsibilities and accompanying needs, FDA’s budget has declined in real terms. In recent years, its annual budget requests have not covered its own needs, its annual appropriations have not kept pace with inflation, and the agency has become increasingly dependent on user fees. Federal funding for other public health agencies . . . has increased, but FDA’s federal funding is dwindling. The effects of this situation are now being felt acutely by the agency and those it serves. . . .

We are concerned about the dilemma that FDA faces in its oversight of foods and critical medical products.  Although our government always faces financial constraints, we cannot afford to put FDA, which performs tasks vital to the public health, in a situation in which it cannot succeed.  We know that we are not alone in our concern. Public confidence in FDA, and the foods and medical products it regulates, is waning. Therefore, we are requesting that you examine the staffing and other resources necessary for FDA to successfully carry out its oversight of foods, drugs, biologics, and medical devices.

The Congressional Letter goes on to cite a November 2007 FDA Science Board report, which found that “FDA’s resource shortfalls have resulted in a plethora of inadequacies that threaten our society.” 

With respect to foods, the Congressional Letter requests that GAO examine FDA’s resources necessary for the Agency to carry out its food safety responsibilities, including the effects of drug, biologic, and device user fees on the availability of funding for food oversight, and FDA’s food budget over the past 10 years.

On user fees, the Congressional Letter notes that “several key components of FDA’s oversight of drugs and devices are not, or are clearly insufficiently, supported by user fees, including generic drug review, the scientific base of the agency; inspections and general enforcement; and oversight of clinical trials and enforcement of human subject protections.” The letter requests that GAO examine, among other things, the extent to which FDA has been able to meet responsibilities not funded by user fees.

Finally, the Congressional Letter expresses concern that FDA has been unable to “effectively modernize and use its IT systems to fulfill its mission needs.”  The letter goes on to note several findings in the November 2007 FDA Science Board report concerning the Agency’s obsolete IT infrastructure, and requests that GAO review FDA’s IT system.  FDA’s PDUFA IV performance goals include several IT objectives that the Agency plans to accomplish by the end of Fiscal Year 2012.  One of the IT goals is to publish a final IT plan in 2008.  In October 2007, FDA held a meeting on the Agency’s IT strategic plan.  On December 28, 2007, FDA announced the availability of a draft plan.

We anticipate that Congress will continue to ramp up its scrutiny of FDA, particularly once President Bush publishes his Fiscal Year 2009 budget request for FDA next week. 

By Kurt R. Karst 

Earlier this month, U.S. House of Representatives Energy and Commerce Committee Chairman John Dingell (D-MI) and Oversight and Investigations Subcommittee Chairman Bart Stupak (D-MI) sent a letter to David M. Walker, Comptroller General of the U.S. Government Accountability Office (“GAO”) requesting that the Office update a 1995 report on Behind-the-Counter (“BTC”) drugs.  We previously reported that FDA scheduled a meeting for November 14, 2007 to discuss the possibility of creating a third class of drugs – in addition to prescription and over-the-counter drugs.  FDA did not put forth a specific proposal for consideration at the meeting, but instead convened the meeting to hear public suggestions as to how BTC “access can be structured and implemented in such a way as to increase access, benefit patients and improve public health.”  A copy of the November 14, 2007 meeting transcript is available here.

The 142-page 1995 GAO report, titled “Nonprescription Drugs: Value of a Pharmacist-Controlled Class Has Yet to Be Demonstrated,” was written after the GAO reviewed BTC drug distribution systems in ten countries and the European Union.  GAO concluded that:

Little evidence supports the establishment of a pharmacy or pharmacist class of drugs in the United States at this time, as either a fixed or a transition class. The evidence that is available tends to undermine the contention that major benefits are being obtained in the countries that have such a class. This conclusion is substantiated by six points.  (1) Reliable and valid studies that examine the effect of different drug distribution systems on overall health and health care system costs do not exist. (2) While a pharmacy or pharmacist class exists in all 10 countries, it is not used with any frequency in any of them to facilitate the movement of drugs to sale outside specialized drug outlets. (3) The European Union has decided not to impose any particular drug distribution system on its member countries because it has found no evidence of the superiority of one system over another. (4) There is no clear pattern of increased or decreased access to drugs as nonprescription products where a pharmacist or pharmacy class exists. (5) While a pharmacy or pharmacist class is assumed by some to improve safeguards against drug misuse and abuse, in the 10 countries these safeguards are easily circumvented, and studies show that pharmacist counseling is infrequent and incomplete.  (6) Experience in Florida with a class of drugs similar to a pharmacist class has not been successful; pharmacists have not regularly prescribed these drugs, and recordkeeping requirements have not been followed.

At the time, FDA provided only minimal comments on the report, stating that it “does not consider the additional requirements establishing a third class of drugs would impose upon the FDA, the drug manufacturers or the prescribing pharmacists.”

According to Representatives Dingell and Stupak, as a result of FDA’s recent discussion of BTC drugs, “it is imperative that more data be provided to assess accurately the true benefits, if any, of a [BTC] class of drugs.”  As such, Representatives Dingell and Stupak request GAO to update the 1995 report by conducting a “rigorous examination of any additional data since the original study that may allow us to evaluate the effect of a third class of drugs,” but without the on-the-ground investigations in foreign countries conducted to draft the 1995 report.

By Kurt R. Karst

Earlier this month, we reported on a complaint filed by Nu-Pharm Inc. against FDA in the U.S. District Court for the District of Columbia seeking declaratory and injunctive relief with respect to the company’s Abbreviated New Drug Application (“ANDA”) #77-615 for generic divalproex sodium delayed-release 500 mg tablets.  Divalproex sodium delayed-release 500 mg tablets is marketed by Abbott Laboratories under the trade name DEPAKOTE.  Nu-Pharm’s ANDA contained a paragraph IV certification to the Orange Book-listed patents for DEPAKOTE, Abbott sued within the statutory 45-day period, and the 30-month stay triggered by the suit reportedly expired in November 2007.  Late last week, the court dismissed the complaint in a one-page order.

According to Nu-Pharm’s memorandum in support of a temporary restraining order and/or preliminary injunction, FDA must approve ANDA #77-615 because the company satisfied all requirements for final ANDA approval and the 30-month stay of approval triggered by the submission of Nu-Pharm’s ANDA with a paragraph IV patent certification expired without a substantive ruling on patent validity or infringement.  FDA nevertheless refused to approve ANDA #77-615 based on an order entered in a contempt proceeding by the U.S. District Court for the Northern District of Illinois (Eastern Division) (Judge Richard Posner sitting by designation) involving an ANDA with a paragraph IV patent certification for generic DEPAKOTE submitted by Apotex Inc. (which formerly owned Nu-Pharm) that also extended to Nu-Pharm’s product. 

In October 2007, the U.S. Court of Appeals for the Federal Circuit reversed the district court’s contempt judgment in the Apotex case with respect to Apotex acting in concert with Nu-Pharm to submit an ANDA “because the district court erred in finding Apotex in contempt when the conduct at issue was not within the express terms of the injunction.”  The Federal Circuit also held, however, that the contempt procedure used by the Illinois court was proper, that Nu-Pharm’s divalproex sodium drug product was not colorably different from Apotex’s divalproex sodium drug product, and that Nu-Pharm’s product would infringe patents covering DEPAKOTE.  Apotex’s request for the Federal Circuit to hear the case en banc was denied, and in January 2008, the company petitioned the Supreme Court for review. 

Nu-Pharm contends that notwithstanding the order in the Illinois court contempt proceeding –to which Nu-Pharm was not and is not a party- FDA is required to approve ANDA #77-615 under the plain language of FDC Act § 505(j)(5)(B)(iii), which states, in relevant part:

If the applicant made a [paragraph IV certification], the approval shall be made effective immediately unless, before the expiration of 45 days after the date on which the notice described in [FDC Act § 505(j)(2)(B)] is received, an action is brought for infringement of the patent that is the subject of the certification and for which information was submitted to the Secretary under FDC Act § 505(b)(1) or § 505(c)(2)] before the date on which the application (excluding an amendment or supplement to the application), which the Secretary later determines to be substantially complete, was submitted. If such an action is brought before the expiration of such days, the approval shall be made effective upon the expiration of the thirty-month period beginning on the date of the receipt of the notice provided under [FDC Act § 505(j)(2)(B)(i)] or such shorter or longer period as the court may order because either party to the action failed to reasonably cooperate in expediting the action, except that . . .

(II) if before the expiration of such period the district court decides that the patent has been infringed . . . .

Specifically, Nu-Pharm argues, among other things, that “for purposes of ANDA approval, the only action that matters is the one brought against the particular ANDA applicant within the 45-day period for infringement of the patent that is the subject of the applicant’s paragraph IV certification.”

FDA, in the Agency’s memorandum accompanying its motion to dismiss, comments in response to Nu-Pharm’s statutory plain meaning arguments that:

FDA must give effect to the [Illinois] court’s order, which expressly pertains to Nu-Pharm. . . .  While Nu-Pharm is correct that FDA must ordinarily approve an otherwise approvable ANDA upon expiration of a 30-month stay, in this case, FDA is subject to a direct court order requiring FDA to delay the approval of Nu-Pharm’s ANDA until after January 29, 2008.  Thus, Nu-Pharm’s statutory arguments miss the point entirely because Nu-Pharm fails to recognize (at least before this Court) FDA’s obligation to give effect to the Illinois court’s order.  For this reason, Nu-Pharm’s lengthy statutory arguments are irrelevant.

FDA goes on to cite two cases in which courts have rejected arguments that FDA’s decision to follow court orders were improper because they were inconsistent with the FDC Act. 

Although Nu-Pharm was unsuccessful in convincing the U.S. District Court for the District of Columbia to grant declaratory and injunctive relief, the company has expressed its intent to appeal the decision.  Specifically, in Nu-Pharm’s brief, the company states:

[I]n the event the Court denies Nu-Pharm’s request for emergency injunctive relief, Nu-Pharm respectfully requests that any adverse FDA decision be stayed and that Nu-Pharm’s 500 mg product be finally approved pending review by, and appeal of this matter to, the United States Court of Appeals for the D.C. Circuit . . . .

We will continue to update you as we learn more information about this interesting case.

By Kurt R. Karst

Last week, we reported on a January 16, 2008 proposed rule issued by FDA that would “reaffirm [the Agency’s] longstanding position that” labeling changes for approved drugs, biologics, and medical devices made by Changes Being Effected Supplements (“CBE Supplements”) may only be made to show newly acquired information or to “add or strengthen a contraindication, warning, precaution, or adverse reaction” when there is sufficient evidence to support the change.  We also commented that the proposed rule, if finalized, could give significant support to firms that invoke an FDA preemption defense in product liability cases where plaintiffs argue that firms should revise their own labeling in accordance with state law. 

On January 23, 2008, several influential U.S. House and Senate Democrats sent a 5-page letter to FDA Commissioner Andrew von Eschenbach expressing their “profound regret” about FDA’s proposed rule and, not surprisingly, blasting the Bush Administration.  The letter states: 

FDA has failed to provide any justification for expending its very limited resources on issuing this 26 page proposal that will serve only to deprive American consumers of critically important and timely information about the safety of their drugs and medical devices. We are concerned that the intent of this proposal is to protect companies in the pharmaceutical and device industry from being held liable for marketing products they know are unsafe. Such a policy change comes at the expense of consumers and violates the mission of the FDA. The issuance of the proposed CBE rule is not an isolated case, but part of a pattern of actions in the Bush Administration’s final months to permanently insulate the drug and device industry from liability.

The letter also cites the “rule of construction” added to FDC Act § 505(o)(4)(I) by Title IX (Enhanced Authorities Regarding Postmarket Safety of Drugs) of the FDA Amendments Act (“FDAAA”).  The rule of construction states:

This paragraph shall not be constructed to affect the responsibility of the responsible person or the holder of the approved application under section 505(j) to maintain its label in accordance with existing requirements, including subpart B of part 201 and sections 314.70 and 601.12 of title 21, Code of Federal Regulations (or any successor regulations).

In noting the rule of construction, the Congressional Letter criticizes FDA’s “glaring omission” in describing Congress’ intent with respect to FDA’s labeling change authority under FDAAA:

It is indeed true that, in FDAAA, Congress intended to give FDA, for the first time, the clear authority to require certain changes in drug labeling. Vioxx is a painful illustration of what had previously been a serious gap in FDA’s authority. In that instance, FDA haggled with the company about the content of the labeling change for over 14 months while consumers continued to take the drug, completely unaware of the serious health risks associated with it. Thus, FDAAA provides FDA with the ability to avoid this kind of protracted negotiation so that the agency can ensure that the important safety information it believes should be on the label is promptly added.

The preamble, however, makes a glaring omission in its description of congressional intent with respect to FDAAA’s labeling change authority. FDA failed to cite the “Rule of Construction” which clearly demonstrates Congress’ equally important goal: to preserve the responsibility of drug companies to promptly update their own product labels to reflect the most current safety information available.

The Congressional Letter goes on to note that “the proposed rule fails to identify a single problem associated with [FDA’s CBE Supplement regulations] that would warrant modification, much less a public health threat of such magnitude as to put issuing the proposal at the top of FDA’s priority list,” and that “the proposal was immediately cited by the Solicitor General in a letter to the United States Supreme Court in support of the industry’s argument that FDA approval preempts individual product liability cases.”  The case referred to is Wyeth v. Levine, which concerns whether prescription drug labeling preempts state law product liability claims.  A copy of the Solicitor General’s brief in that case is available here.  Other documents in the case are available at SCOTUSBlog.

Finally, the Congressional Letter requests that FDA provide certain information by February 13, 2008, including: (1) the number of CBE Supplements FDA received each year since 1982; (2) any cases in which “a manufacturer used the CBE procedure to add or strengthen a contraindication, warning, precaution, or adverse reactions in a manner that harmed the public health, including the dates of such cases;” and (3) documents from FDA officials expressing concern about misuse of CBE Supplements.

By Kurt R. Karst

North Dakota-based food and dietary supplement manufacturer Swanson Health Products, Inc. (“Swanson”) filed a Citizen Petition with FDA dated January 18, 2008, requesting the Agency to “take all appropriate steps to prevent California’s Safe Drinking Water and toxic Enforcement Act (‘Proposition 65’) from being applied to foods and dietary supplements, on the ground that Proposition 65 on its face, and as applied, conflicts irreconcilably” with the Federal Food, Drug and Cosmetic Act (“FDC Act”), and FDA regulations. 

Proposition 65 requires all products sold in California containing any chemical “known to the state” to cause cancer or reproductive harm to bear a warning statement to that effect.  Consequently, while most nutrients commonly incorporated into dietary supplements are biologically essential, because the same nutrients at a higher level, or in a different molecular form, are known to be carcinogenic or mutagenic, the presence of such nutrients requires the product to bear a warning statement.  As reflected in Swanson’s Petition, the specific wording of many Proposition 65 warnings for foods and dietary supplements sold in California, as well as the level of the substance that triggers the requirement, is often determined piecemeal through private settlement negotiations ending citizen-initiated lawsuits brought to enforce the requirement.  Swanson claims in its Petition that such warning statements confuse and mislead consumers with regard to the safety and FDA compliance of foods and dietary supplements, and thus cause these products to be “misbranded” under the FDC Act.

Swanson notes that for certain food products, such as canned tuna (possibly containing mercury) and fried foods (potentially containing acrylamide), FDA has already expressed its view that Proposition 65 conflicts with the FDC Act.  For example, the Petition cites an August 12, 2005 letter from then FDA Commissioner Lester Crawford to California Attorney General Bill Lockyer, and a March 21, 2007 letter from Terry C. Troxell, Ph.D., Director, Office of Plant and Dairy Foods, Center for Food Safety and Applied Nutrition, to Joan Denton, Director, California Office of Environmental Health Hazard Assessment, and California Deputy Attorney General Ed Weil.  Swanson argues that “the time is right” for FDA now to take broader and more general action to preclude the interference of Proposition 65 with its statutory mandate, especially in light of the agency’s newly announced Food Protection Plan initiative.

Persons wishing to submit comments on the Petition may do so electronically by visiting www.regulations.gov and searching for the Petition.  By regulation, FDA is required to respond to a Citizen Petition within 180 days.  In practice, FDA usually sends a letter to the petitioner on or about the date of the deadline stating that the Agency has received the petition, but needs more time to respond.  While we are unaware of accurate statistics on FDA responses to petitions, many if not most petitions receive no response for years, and many others never receive any FDA response. 

By Jennifer B. Davis

The Food and Drug Law Institute is scheduled to hold its 6th Annual Conference on Enforcement and Litigation on February 19-20, 2008.  Among other topics of discussion slated for the conference are the U.S. Sentencing Commission’s proposed guidelines that would greatly enhance the criminal penalties applied to some violations committed by FDA-regulated industry.  We previously posted on this topic.  Hyman, Phelps & McNamara, P.C.’s ("HPM’s") Douglas B. Farquhar is one of the conference program chairmen.

Also on tap for discussion is a special break-out session chaired by HPM’s A. Wes. Siegner, Jr. on food and dietary supplement issues.  This session will focus on new enforcement and compliance requirements affecting the food and dietary supplement industry.   Additional information on the conference is available here and here.

On January 16, 2008, FDA issued a proposed rule that would “reaffirm [the Agency’s] longstanding position that” labeling changes for approved drugs, biologics, and medical devices may only be made to show newly acquired information or to “add or strengthen a contraindication, warning, precaution, or adverse reaction” when there is sufficient evidence to support the change. 

FDA’s current regulations at 21 C.F.R. §§ 314.70(c), 601.12(f), and 814.39(d) allow changes to be made to drug, biologic, and device labeling in certain situations upon FDA’s receipt of a supplemental application, commonly referred to as a “changes being effect supplement,” or a “CBE supplement,” for drugs and biologics, and a Premarket Approval Application (“PMA”) supplement or Special PMA Supplement for devices.  (For convenience, we use the term CBE supplement to refer to drug, biologic, and device labeling supplements.) FDA’s proposal, if finalized, would make explicit that CBEs may only be used to update newly acquired safety information, which FDA proposed to define as “data, analyses, or other information not previously submitted to the agency, or submitted within a reasonable time period prior to the CBE supplement, that provides novel information about the product.”  For example, if a postmarket study suggests a more severe and significant adverse reaction than previously known, then a CBE supplement “may be appropriate;” but if a study only provides additional data on a known adverse reaction, a CBE supplement would not be appropriate.  Further, according to FDA, a CBE supplement may only be used for labeling changes relating to “contraindications, warnings, precautions, or adverse reactions in circumstances when there is sufficient evidence of a causal association with the drug, biologic, or medical device.” 

Because FDA’s proposal would merely codify existing FDA policy, it would not significantly alter Agency practice or establish new regulatory requirements.  However, the proposed rule, if finalized, could give significant support to firms that invoke an FDA preemption defense in product liability cases where plaintiffs argue that firms should revise their own labeling in accordance with state law.  Specifically, by revising its CBE supplement regulations to state that such applications require “newly acquired information,” FDA could limit the number of cases in which the results from certain studies could be used to support a stronger labeling warning and a product liability lawsuit.  FDA states in the proposal that:

To the extent that state law would require a sponsor to add information to the labeling for an approved drug or biologic without advance FDA approval based on information or data as to risks that are similar in type or severity to those previously submitted to the FDA, or based on information or data that does not provide sufficient evidence of a causal association with the product, such a state requirement would conflict with federal law. In such a situation, it would be impossible to market a product in compliance with both federal and state law, and the state law would “stand[] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hines, 312 U.S. at 67.  Moreover, such a state law requirement relating to a medical device would constitute a requirement that is different from, or in addition to, a federal requirement applicable to the device, and which relates to the safety or effectiveness of the device. 21 U.S.C. 360k(a).

Indeed, this is precisely the issue the Supreme Court will consider later this year in Wyeth v. Levine – whether prescription drug labeling preempts state law product liability claims. Documents on the case are available from SCOTUSBlog.  Last week, the Court agreed to hear the case. 

In 2006, the Vermont Supreme Court ruled against Wyeth concerning the company’s labeling of PHENERGAN (promethazine HCl) and held that the FDC Act “provides a floor, not a ceiling, for state regulation.”  FDA has previously stated (pages 3934-35) that “FDA approval of labeling under the [FDC Act] . . . preempts conflicting or contrary State law,” and that “FDA interprets the [FDC Act] to establish both a ‘floor’ and a ‘ceiling,’ such that additional disclosures of risk information can expose a manufacturer to liability under the act if the additional statement is unsubstantiated or otherwise false or misleading.”

FDA has invited comments on the Agency’s proposal regarding when safety information relating to a drug, biologic, or medical device should be considered “newly acquired.”  All comments to the proposed rule are due March 17.

We previously reported on FDA’s request for public comment to help resolve 180-day exclusivity issues concerning a generic version of the antinauseant and antiemetic drug KYTRIL (granisetron HCl) Injection.  Specifically, in October 2007, FDA established a public docket in response to a letter from Teva Parenteral Medicines (“Teva”), in which the company argued that “the plain language and structure of the [FDC Act] compel the conclusion that Teva is entitled to 180-day exclusivity because Teva is the first applicant that submitted a substantially complete paragraph IV ANDA.”  Earlier today, FDA posted its January 17, 2008 response concluding that Teva did not forfeit 180-day exclusivity.  This conclusion had been anticipated, because earlier this month Teva announced the approval of the company’s granisetron HCl ANDA with 180-day exclusivity. 

At issue in this case are the “failure to market” 180-day exclusivity forfeiture provisions at FDC Act § 505(j)(5)(D)(i)(I) added by the Medicare Modernization Act (“MMA”) in 2003.  Under these provisions, a generic applicant whose ANDA contains a paragraph IV patent certification and who is a “first applicant” eligible for 180-day exclusivity forfeits eligibility for such exclusivity if the firm fails to market the drug by the later of:

(aa) the earlier of the date that is –

(AA) 75 days after the date on which the approval of the application of the first applicant is made effective under subparagraph (B)(iii); or

(BB) 30 months after the date of submission of the application of the first applicant; or

(bb) . . . the date that is 75 days after the date as of which, as to each of the patents with respect to which the first applicant submitted and lawfully maintained a certification qualifying the first applicant for the 180-day exclusivity period under subparagraph (B)(iv), at least 1 of the following has occurred:

(AA) In an infringement action brought against that applicant with respect to the patent or in a declaratory judgment action brought by that applicant with respect to the patent, a court enters a final decision from which no appeal (other than a petition to the Supreme Court for a writ of certiorari) has been or can be taken that the patent is invalid or not infringed.

(BB) In an infringement action or a declaratory judgment action described in subitem (AA), a court signs a settlement order or consent decree that enters a final judgment that includes a finding that the patent is invalid or not infringed.

(CC) The patent information submitted under [FDC Act § 505(b) or (c)] is withdrawn by the holder of the application approved under [FDC Act § 505(b)].

In May 2004, Teva submitted the first ANDA to FDA containing a paragraph IV certification for a generic version of KYTRIL.  The application also contained a paragraph III certification (date of patent expiration) and a “section viii statement” to a method-of-use patent.  Roche, the NDA holder/patent owner, did not sue Teva (or any subsequent ANDA applicant) for patent infringement, and FDA tentatively approved Teva’s ANDA in August 2005.  The patent subject to the paragraph III certification expired in December 2007; however, the 30-month period described in FDC Act § 505(j)(5)(D)(i)(I)(aa)(BB) above expired in November 2006. 

Teva argued that despite the expiration of the 30-month period, the firm remained eligible for 180-day exclusivity, which would be triggered by Teva’s commercial marketing of the drug.  Specifically, Teva’s letter states:

[T]he plain language and structure of the [FDC Act] compel the conclusion that Teva is entitled to 180-day exclusivity because Teva is the first applicant that submitted a substantially complete paragraph IV ANDA . . . .  Teva’s exclusivity has not been forfeited . . . because there is a continuing possibility of ANDA-based patent litigation that could result in a “later” forfeiture event under [FDC Act § 505(j)(5)(D)(i)(I)]. . . .

[The FDC Act] requires FDA to determine which is “the later of” (1) a determinate forfeiture trigger . . . “or” (2) a contingent forfeiture trigger . . . .  But there is no conceivable way for FDA to determine which of those 2 potential triggers occurs “later” until (a) one of the contingencies that could give rise to a forfeiture trigger [under FDC Act § FDC Act § 505(j)(5)(D)(i)(I)(bb)] has occurred, or (b) none of the contingencies can occur.  After all, it is impossible to know whether a contingent event has occurred before it does occur — and twice as hard to determine that such an event will not occur until it no longer can occur.

Teva echoed this argument in the company’s comments submitted to the docket FDA established to solicit public comment on acarbose (PRECOSE) 180-day exclusivity issues.

FDA’s granisetron docket response agrees with Teva’s argument.  FDA states:

We find that under the plain language of the statute, 180-day exclusivity is not forfeited for failure to market when an event under subpart (aa) has occurred, but – as in this case – none of the events in subpart (bb) has occurred.  The “failure to market” provision results in forfeiture when there are two dates on the basis of which FDA may identify the “later” event as described in section 505(j)(5)(D)(i)(I).  The provision does not effect a forfeiture when an event under subpart (aa) has occurred, but no event under subpart (bb) has yet occurred.

This is not a situation in which it would be impossible for a later event to occur. Although at the time FDA made its exclusivity decision, there was no litigation regarding the ‘548 patent pending that could result in a forfeiture event under subitem (AA) or (BB) of subpart (bb), there was nevertheless the possibility that either an additional ANDA applicant would be sued as a result of a paragraph IV certification to the patent or one of the applicants would bring a declaratory judgment action against the NDA holder or patent owner. Either of these actions could result in a forfeiture event.  In addition, the patent could be withdrawn by the NDA holder, resulting in a forfeiture event under subitem (CC).  Because at least one of the events described in subpart (bb) could still have occurred and, if it did, would necessarily occur “later” than December 1, 2006, Teva did not forfeit its exclusivity.

FDA also states in a footnote that:

Inherent in the structure of the “failure to market” forfeiture provisions is the possibility that a first applicant would be able to enter into a settlement agreement with the NDA holder or patent owner in which a court does not enter a final judgment of invalidity or non-infringement (i.e., without a forfeiture event under subpart (bb) occurring), and that subsequent applicants would be unable to initiate a forfeiture with a declaratory judgment action.  This inability to force a forfeiture of 180-day exclusivity could result in delays in the approval of otherwise approvable ANDAs owned by applicants that would market their generic drugs if they could but obtain approval.  This potential scenario is not one for which the statute currently provides a remedy.

FDA has not yet issued responses to other public dockets involving 180-day exclusivity issues – namely ramipril and acarbose.  We understand, however, that a decision on ramipril is imminent; particularly because FDA’s latest Orange Book Cumulative Supplement shows a period of 180-day exclusivity for the drug products covered under Cobalt’s ANDA (identified as “PC” or “Patent Challenge” exclusivity). 

By Kurt R. Karst

On January 14, 2008, Nu-Pharm Inc., a Canadian drug company formerly owned by Apotex, Inc., filed a complaint in the U.S. District Court for the District of Columbia against FDA seeking declaratory and injunctive relief with respect to the company’s Abbreviated New Drug Application (“ANDA”) for divalproex sodium delayed-release 500 mg tablets.  The drug is marketed by Abbott Laboratories under the trade name DEPAKOTE for the treatment of mania, migraine, and epilepsy, and was first approved in 1983 under NDA #18-723.

According to the complaint, Nu-Pharm submitted ANDA #77-615 to FDA in March 2005 with paragraph IV certifications to two Orange Book-listed patents covering DEPAKOTE: U.S. Patent #4,988,731 (“the ‘731 patent”) and #5,212,326 (“the ‘326 patent”).  These patents are scheduled to expire on January 29, 2008; however, in December 2007, FDA granted Abbott pediatric exclusivity for the drug, thereby delaying generic approval under certain circumstances until July 29, 2008. 

Earlier, Abbott sued Nu-Pharm in the U.S. District Court for the Northern District of Illinois (Eastern Division) for infringement of both patents, thereby triggering a 30-month stay of approval of Nu-Pharm’s ANDA.  According to Nu-Pharm, the 30-month stay expired on November 13, 2007, without any substantive merits ruling on patent infringement.  Nu-Pharm then contacted FDA requesting that the Agency grant final ANDA approval. 

According to the complaint, in December 2007, FDA informed Nu-Pharm that the Agency would not grant final approval based on an order entered in a contempt proceeding in the U.S. District Court for the Northern District of Illinois (Eastern Division) in Abbott Labs v. Apotex.   In that proceeding, the charged conduct was the submission of repetitive ANDAs by Apotex and Nu-Pharm to FDA for generic DEPAKOTE.  In October 2007, the U.S. Court of Appeals for the Federal Circuit reversed the district court’s judgment of contempt “because the district court erred in finding Apotex in contempt when the conduct at issue was not within the express terms of the injunction.”  By way of background, in previous paragraph IV patent litigation in that case concerning Apotex’s ANDA #75-112 for generic DEPAKOTE, Judge Richard Posner, sitting by designation in the U.S. District Court for the Northern District of Illinois, ruled that Apotex’s product infringed the ‘731 and ‘326 patents, enjoined the company from manufacturing, using, selling, or offering to sell generic divalproex sodium, and stated that the effective date of approval of ANDA #75-112 would be no earlier than January 29, 2008 when the patents expire – without pediatric exclusivity.  The decision was affirmed in 2005.  Apotex subsequently entered into an agreement with Nu-Pharm under which Apotex would pay for the costs associated with preparing and submitting a new ANDA (i.e., ANDA #77-615) for generic DEPAKOTE and Nu-Pharm would take on the “litigation risks” arising from the submission of the ANDA. 

According to the Nu-Pharm complaint, FDA orally refused to grant final approval for ANDA #77-615 on January 9, 2008.  Considering FDA’s decision to be final agency action, the company filed a complaint.  Nu-Pharm alleges that FDA’s refusal to approve the company’s ANDA violates the FDC Act and the Administrative Procedure Act because “FDA’s decision violates the plain and unambiguous language of the [FDC Act], which provides that FDA shall immediately approve an ANDA where, as in this case, the applicable 30-month stay has expired” and there has been no finding of infringement or validity, and that FDA “has no lawful basis or authority to withhold final approval . . . based on a court order in a wholly separate contempt proceeding to which Nu-Pharm was not a party.”

By Kurt R. Karst

UPDATE:

• A copy of Nu-Pharm’s memorandum supporting the company’s motion for a temporary restraining order and/or preliminary injunction is available here.  FDA is expected to file its brief soon.

On January 31, 2008, the New York State Bar Association will hold its annual meeting of the Food, Drug, and Cosmetic Law Section.  Some of the topics slated for discussion are the current political and regulatory landscape in the wake of the enactment of the FDA Amendments Act, the current status of follow-on biologics legislation, and the status of pending drug and device preemption cases before the Supreme Court.  Hyman, Phelps & McNamara, P.C.’s Robert A. Dormer will be speaking at the event, as well as FDA’s recently-named Chief Counsel, Gerald F. Masoudi.  A copy of the brochure for the event is available here – register today!

We previously reported on the new voluntary Direct-To-Consumer (“DTC”) television ad user fee program established by the FDA Amendments Act (“FDAAA”) and FDA’s establishment of Fiscal Year 2008 DTC television ad user fee rates.  Due to inadequate funding by Congress, however, the new program will not launch.

FDAAA provides that the new DTC user fee program established under FDC Act § 736A will not commence if FDA fails to receive at least $11.25 million within 120 days after enactment of FDAAA (i.e., January 25, 2008).  Such funding consists of a combined total of the advisory review and operating reserve fees established by FDA.  Based on industry’s interest in participating in the program, it seemed that the program would commence.  FDAAA also provides, however, that the DTC fees “shall be collected and available for obligation only to the extent and in the amount provided in advance in appropriations Acts.”

On December 26, 2007, President Bush signed into law the Consolidated Appropriations Act, 2008.  (A copy of the new law, Pub. L. No. 110-161, is available by searching here.)  Among other things, the law makes appropriations to FDA for necessary Agency expenses, such as salaries.  The new law, however, does not appropriate user fee funds for the new DTC user fee program.  As such, FDA does not have the authority to collect and spend DTC television ad user fees, and invoices to those companies expressing their intent to participate in the program will not be sent.  Tomorrow, FDA will issue a notice in the Federal Register discussing the end of the program.

Instead of funding the new DTC television ad program, the Consolidated Appropriations Act reportedly increases the funds available from the U.S. Treasury for FDA ad review by $4 million, to $6.25 million.  These funds are only available for Fiscal Year 2008, however, so Congress will have to address the issue again next year when it considers Fiscal Year 2009 appropriations. 

By Kurt R. Karst

The United States Sentencing Commission (“Commission”), which sets the guidelines that are usually followed by federal judges sentencing defendants convicted of federal crimes, has issued proposed Sentencing Guidelines (“Guidelines”) that would likely greatly enhance the criminal penalties applied to some criminal violations of the Federal Food, Drug and Cosmetic Act (“FDC Act”), and has requested public comment whether to increase penalties for all other violations of the FDC Act.  We previously reported that the Commission was considering amending the Guidelines.

In our previous post, we noted that a Commission vote on proposed amendments to the FDC Act was likely in January 2008.  At its public meeting held on January 9, 2008, the Commission voted to publish proposed amendments to the Guidelines and to seek comments on certain issues relating to human growth hormone (“HGH”) offenses, Prescription Drug Marketing Act (“PDMA”) offenses, and other FDC Act offenses.  (The PDMA, which was enacted in April 1988, amended the FDC Act to, among other things, require State licensing of wholesale distributors of prescription drugs under certain Federal guidelines; ban the sale, trade, or purchase of drug samples; and require wholesale distributors to audit drug sample distribution and accounting.)

Once published in the Federal Register, the public will have 60 days to submit comments on the proposed amendments and issues raised in the notice.

The action by the Commission with respect to FDC Act violations committed by individuals (but not corporations) is a rare one.  More than 20 years ago, in connection with the initial promulgation of the Guidelines, the Commission issued § 2N2.1, which then, like now, applied to FDC Act regulatory offenses.  Section 2N2.1 has always contained a cross-reference to the fraud guideline (formerly § 2F1.1, presently § 2B1.1).  Approximately 11 years ago, in response to efforts by the federal government, the Commission proposed making all FDC Act violations subject to the tougher fraud guidelines.  After substantial industry opposition to that proposal, it was withdrawn, and the status quo was maintained.

Now, after more than a decade since it last showed any inclination to address the issue, the Commission appears prepared to consider fundamentally altering how the Guidelines are applied in cases involving FDC Act offenses, and not likely with an eye towards making them less harsh.  To date, § 2N2.1 Guidelines application issues have been simple as compared to other sentencing considerations. 

According to the Commission’s proposed amendments and issues for comment, “[t]he Commission has received some public comment stating that the penalties under §2N2.1 are inadequate to deter second or subsequent violations of the [FDC Act, and] [s]ome commentators also state that §2N2.1 does not adequately punish violations of the PDMA, which carry a 10 year statutory maximum term of imprisonment.”  Based on these comments and other considerations, the Commission has now asked “[s]hould the Commission provide alternative base offense levels, specific offense characteristics identifying aggravating factors warranting an enhanced sentence, or some combination of these to more adequately address these offenses?” Moreover, the Commission invites suggestions regarding “what should be the offense levels associated with alternative base offense levels and/or specific offense characteristics.”  These statements strongly suggest that any Commission action will result in harsher Guidelines.

Significantly, the Commission may, based upon public comment, vote to recommend a revised § 2N2.1 to Congress without ever first publishing for public comment the details of proposed amendments to § 2N2.1.  It seems clear that those advocating for stiffer Guidelines sentences for FDC Act offenses have made their voices heard and will continue to do so.  It would also seem clear that the regulated industry should present its views on this matter to try to affect any final Commission action, unless the regulated industry wants to concede the need for stiffer Guidelines and the resulting longer terms of imprisonment and increases in other associated criminal penalties.

In addition to its more open-ended invitation for comment, the Commission’s notice contains certain more concrete proposals, particularly with respect to setting forth a Guideline for HGH.  The proposed amendments to the Guidelines do the following with respect to HGH:

1.  Adds 21 U.S.C. § 333(e) – distribution of HGH – to the list of offenses to which § 2D1.1, the general controlled substance Guideline, applies.

2.  Makes a defendant convicted of an HGH offense subject to a two level enhancement under § 2D1.1(b)(6) for “mass marketing [HGH] by means of an interactive computer service.”  This existing specific offense characteristic currently applies to only controlled substances, which HGH is not..  Application Note 23 provides guidance regarding how this provision is applied as well as the definition of “interactive computer service.”

3.  Adds 21 U.S.C. § 333(e)(2) – distribution of HGH to a person under 18 years of age – to the § 2D1.2 Guideline, which presently applies to controlled substance offenses involving protected locations (e.g., schools) or pregnant or underage persons.

The notice also identifies various issues for comment regarding HGH offenses.

With respect to other FDC Act offenses, the proposed amendments:

4.  Add the first and only specific offense characteristic to § 2N2.1.  The purpose of this amendment appears to be to increase the Guidelines level for second or subsequent FDC Act convictions where the defendant is not convicted of committing the offenses with the “intent to defraud and mislead.”  At present, despite the second offense being a felony – regardless of intent to defraud or mislead – the Guidelines did not take that statutory difference into account.

5.  Add an application note to § 2N2.1 to include substantial risk of bodily harm as a basis for upward departure.  While actual death and physical injury are currently identified grounds for an upward departure under 5K2.1 and 5K2.2 respectively, for FDC Act and other offenses, those sections do not apply to the risk of death or injury.

As we previously reported, the Commission must submit Guideline amendments to Congress no later than May 1, 2008.  As we have noted, because a Guidelines amendment requires a public Commission meeting, such a meeting would have to take place in April at the latest, and could come up for a vote in March.  Prior to such a meeting, there is likely to be a public hearing.   

In sum, these proposed amendments and the issues raised in the notice could result in significantly increased penalties for persons regulated under the FDC Act, and therefore, those persons should carefully consider the potential impact of the proposed amendments and issues raised for comment in the notice and determine how to best to inform the Commission and staff of any improper or unduly harsh consequences that could flow from the Commission action on these Guidelines. 

By John R. Fleder, Douglas B. Farquhar, and J.P. Ellison

UPDATE:

• On January 28, 2008, the United States Sentencing Commission issued a notice in the Federal Register on the Commission’s proposed amendments to the Sentencing Guidelines.  The notice also states that “[t]he Commission will be scheduling a public hearing on its proposed amendments.”

UPDATE (February 7, 2008):

• Today, the Commission announced that the Public Briefing on the proposed amendments- which was the subject of our earlier update- will be held on February 13, 2008 from 9:30 AM to 11:30 AM.

• HPM Attorneys John Fleder and John Gilbert have been selected to participate in a panel testifying before the Commission regarding the proposed FDC Act and PDMA amendments.

On January 8, 2008, the District of Columbia Council passed the SafeRx Act of 2007 (“Act”), which requires pharmaceutical detailers to be licensed by the Board of Pharmacy.  The Act will be presented to Mayor Adrian Fenty for his signature and then to Congress if signed by the mayor.  Earlier versions of the legislation are available here.  Note that the final version as passed is not yet available.  A copy of the press release announcing the Act’s passage is available here. 

The Act defines the practice of pharmaceutical detailing as “the practice by a representative of a pharmaceutical manufacturer or labeler of communicating in person with a licensed health professional or an employee or representative of a licensed professional, located in the District of Columbia, for the purposes of selling, providing information about, or in any way promoting a pharmaceutical product.”  The qualifications for licensure include a college degree, a notarized statement that the applicant understands and agrees to the requirements of pharmaceutical detailing practice in the District of Columbia, and payment of a licensure fee to be set by the Board of Pharmacy.  The educational requirement can be waived for any applicant who has worked full time as a pharmaceutical detailer for at least 12 months preceding the effective date of the Act.  The Mayor is required to establish continuing education requirements as a condition of license renewal.  Under the Act, the penalty for detailing without a license would be a fine of up to $10,000.

A pharmaceutical detailer is prohibited from engaging in any deception or misleading marketing of a pharmaceutical product.  (Previous versions of the legislation deemed off-label information to be deceptive or misleading marketing.  We were informed by the D.C. Council’s Office of General Counsel that this language has been deleted from the bill as passed.)  Detailers are also prohibited from using a title or designation that might lead a licensed health practitioner or his/her employees to think that the detailer is a licensed health practitioner, unless the detailer is a licensed health practitioner.  In addition, detailers would not be able attend patient examinations without patient consent.

The Act also permits the Board of Pharmacy to establish a code of ethics for the practice of pharmaceutical detailing and to collect information from a pharmaceutical detailer regarding the detailer’s communications with licensed health professionals and their employees. 

By Bryon F. Powell

UPDATE:

A copy of the enrolled version of the Act is available here.

Earlier today, The Plain Dealer, a Cleveland newspaper, reported that Senator Sherrod Brown (D-OH) submitted a request to the Congressional Research Service (“CRS”) requesting information on FDA’s “Fast Track” designation program.  CRS provides policy and legal analysis to committees and to Members of both the U.S. House of Representatives and the U.S. Senate. 

Fast Track was created by the FDA Modernization Act in 1997 to help facilitate the development and expedite the review of drugs and biologics for serious or life-threatening conditions that demonstrate a potential to address unmet medical needs.  Under FDC Act § 506, companies may request Fast Track designation for their product at the time they submit an Investigational New Drug Application to FDA or at any time thereafter.  FDA must determine whether to grant such designation within 60 calendar days after receipt of a designation request.  The benefits of Fast Track designation include scheduled meetings to seek FDA input into development plans, the option of submitting an NDA for “rolling review” (i.e., submission in sections rather than all components simultaneously), and the option of requesting evaluation of studies using surrogate endpoints or clinically meaningful endpoints.  In addition, most drugs that are eligible for Fast Track designation are likely to be considered appropriate to receive a 6-month priority review instead of a 10-month standard review.  Information on FDA’s Fast Track designations is available here, here, and here.  FDA’s Fast Track guidance document is available here.  Statutory Fast Track under FDC Act § 506 is very similar to FDA’s “Accelerated Approval” regulations, and, according to FDA, “essentially codifies in [the] statute FDA’s accelerated approval regulations.”

According to the report in The Plain Dealer, Sen. Brown requested the information on FDA’s Fast Track designation program “to help determine whether a case exists for changing or eliminating the 10-year-old initiative that was intended to speed the availability of drugs for serious diseases.”  Sen. Brown’s request follows a series of articles that appeared in The Plain Dealer in December 2007 that concluded that Fast Track designation provides little actual benefit to consumers.  According to the Plain Dealer’s research, “[Fast Track] designation has amounted to a government blessing, which has served as a marketing tool for drug companies and a boon for investors looking to make quick money on the stock market. . . . Since 1998 . . .  Fast Track announcements for almost 200 drug treatments triggered one-day stock price increases that averaged 10 percent.”  Copies of The Plain Dealer articles are available here, here, here, here, and here.

On February 8, 2008, Hyman, Phelps & McNamara, P.C. (“HPM”) is sponsoring a Medical Device Seminar in Newport Beach, California.  The topic of this seminar will be “Striving for Regulatory Success in a Changing Environment.”  Scheduled speakers for the seminar are Jeff Gibbs, Brian Donato, Doug Farquhar, Jeff Shapiro, and Anne Marie Murphy.  The seminar will cover a wide range of medical device-related subjects and provide an update on developments at FDA’s Center for Devices and Radiological Health.  A copy of the brochure and registration form are available here.  Additional information on the seminar is available here.  HPM’s clients are entitled to a reduced registration fee for this event.