Cross-posted on Stanford’s Law and the Biosciences Blog
As I have previously written about here, in January FDA published a controversial revision to its regulations defining “intended use,” and then, in the wake of procedural and substantive objections to the revised definition, the agency delayed the effective date of the new rule until March 2018. These revisions are important because the “intended use” of a product is crucial for determining whether the product is a drug or device subject to FDA jurisdiction at all, and if so, whether the drug or device is in compliance with various FDA requirements. Accordingly, there is significant interest in the kinds of evidence that FDA considers relevant to determining a product’s intended use. The January revision to FDA’s regulations explained that that FDA would use a “totality of the evidence” approach to determining intended use, which would permit the agency to look to “any relevant source of evidence,” including, perhaps most controversially, a manufacturer’s knowledge about consumers’ and patients’ actual uses of the product. The procedural “logical outgrowth” arguments against this standard do not persuade me for the reasons I explained here. Likewise, I am not sure the substantive arguments against the revised regulations convince me.