This note explains some of the concepts swirling around in the media right now, relating to medicine approval. Much of what follows appears (or will appear) in an article on the U.S. “right to try” law, which I recently wrote with a colleague at the University of Bourgogne in Dijon, France. Some of the background discussion will be useful here.Continue reading “The Tradeoffs Involved in New Drug Approval, Expanded Access, and Right to Try”
Case To Watch: Eagle v. Azar’s Hidden Chevron-Step-1 Issue
Recently I spoke at the annual meeting of the Food and Drug Law Institute (FDLI) on Eagle v. Azar, which is currently on appeal to the D.C. Circuit. At first blush the case seems of limited importance, because Eagle Pharmaceuticals is simply challenging FDA’s interpretation of statutory language that has since been amended. But reading through the litigation papers reveals a more interesting disagreement between the parties, about what a court should consider, when assessing whether a statute clearly answers a particular legal question. I will unpack this after the jump. Warning: this is more of an essay than a blog post. I start with a TL;DR.Continue reading “Case To Watch: Eagle v. Azar’s Hidden Chevron-Step-1 Issue”
Changes in the new Orange Book — or, too much time on my hands …
It’s always an exciting day when FDA issues the new annual edition of the Orange Book! (At least for me, and I’m sure also for Kurt Karst, over at FDA Law Blog.) There are a lot of changes in store at the Orange Book in the next year, all of which will get fanfare and attention, but this post is about the little changes in the annual edition (print and PDF) that don’t get called out. It’s prompted by the fact that FDA deleted a sentence in the preface last year, without telling anyone. (I had quoted it in an expert report, just a few months earlier and was annoyed to see it deleted.) I resolved that going forward I would electronically compare every new annual edition to the last year’s edition, and so I spent my Saturday doing exactly this with the new edition — and crashing my computer repeatedly. The results after the jump.Continue reading “Changes in the new Orange Book — or, too much time on my hands …”
Patent Term Restoration – Denied!
In 1984, Congress amended the Patent Act to permit a patent extension for certain types of inventions — many (but not all) of those subject to premarket testing and federal government approval requirements. Some people call this patent term extension; others call it patent term restoration. Between enactment of the statute in September 1984 and the end of March 2017, the Patent and Trademark Office received 1113 applications for patent term extensions in connection with new drugs and biological products. But by April 1, 2018, it had granted only 664 extensions. Why do companies not get patent term extension? Usually because this wasn’t FDA’s first approval of the active ingredient.
More after the jump.Continue reading “Patent Term Restoration – Denied!”
Cannabis and the Often Overlooked Drug Exclusion Rule
Earlier this week, several major news outlets (CNN, Fox Business, and Bloomberg) reported that Coca-Cola is considering making a move into “cannabis drinks” — as evidenced by supposed talks with Aurora Cannabis, Inc., a Canadian owned and operated company that sells a variety of cannabis products including several strains of dried cannabis as well as several oils. The company finally issued a statement, in response to many media inquiries: “We have no interest in marijuana or cannabis. Along with many others in the beverage industry, we are closely watching the growth of non-psychoactive CBD as an ingredient in functional wellness beverages around the world. The space is evolving quickly. No decisions have been made at this time.”
Caution might well be warranted with respect to products for sale in the United States, because of the often-overlooked drug exclusion rule at FDA. Coca-Cola has sophisticated FDA counsel, and I am sure they are on top of this issue. But others watching legal and real-world developments relating to sale of cannabis may not be aware of the rule, which presents a significant legal impediment to the sale of CBD in any form other than approved new drugs (even if no medical claims are made).
Many people don’t know about the drug exclusion rule . . .
Continue reading “Cannabis and the Often Overlooked Drug Exclusion Rule”
Whither FDA’s drug approval paradigm? — A Debate from Recent FDA Law SSRN Postings
A series of thoughtful articles in the spring tackled some basic questions about the drug development and approval paradigm. I’ll be reviewing other SSRN postings in later posts, but the articles described below work well together — presenting fundamental questions about how drugs should be studied (when and by whom), how the resulting information is processed, and what information (how much and what type) should be required before drugs are permitted on the market. And they tee up what might be a spirited debate about what, exactly, a “public health” approach to new drug approval might mean.
Continue reading “Whither FDA’s drug approval paradigm? — A Debate from Recent FDA Law SSRN Postings”
Opening Up the OTC Market
Cross-posted on Stanford’s Law and the Biosciences Blog
Yesterday, FDA announced a new draft guidance “Innovative Approaches for Nonprescription Drug Products” intended to expand the range of drugs available over-the-counter (OTC). Specifically, the agency’s proposal indicates a willingness to make available OTC drugs for certain historically prescription-only therapeutic categories—such as overdose reversal drugs, like naloxone, or cholesterol-lowering drugs. As I told a journalist yesterday, overall I see this as a positive step—and one that is consistent with long-standing interest in making more drugs available without a visit to a physician, including interest at the state and local level.
FDA Law SSRN Reading List – February and March 2018, 2/3
Continuing with FDA-related scholarship posted on SSRN in February and March: Professor Noah explores the possibility of “reverse switches” from over-the-counter (OTC) status back to prescription status (or perhaps, he suggests “behind the counter” status) in response to new safety information. Professor Paradise explains the provisions of the 21st Century Cures Act that contemplate greater patient involvement in medical product development, and Professors Evans and Ossorio evaluate the 21st Century Cures Act exclusion of clinical decision software from the agency’s medical device authority.
Continue reading “FDA Law SSRN Reading List – February and March 2018, 2/3”
Pediatric Exclusivity (3 of 3): Amgen v. Hargan
My last entry described the facts leading to Amgen’s suit against FDA over denial of pediatric exclusivity for Sensipar. Below I describe what’s at issue in the case. At bottom, this litigation relates to a federal agency developing a new standard (a new interpretation of its statute) that it will apply when ruling on applications for a benefit, after its prior interpretation suffered a defeat in federal court. Rather than announcing the standard publicly, the plaintiff in this case argues, the agency applied the standard in non-public rulings for more than a decade. Not only does the standard conflict with the statute, plaintiff adds, but the agency has not been consistent in its application of the standard. Thus the dispute is more about how a federal agency is operating than it is about the law of pediatric exclusivity.
Continue reading “Pediatric Exclusivity (3 of 3): Amgen v. Hargan”
Pediatric Exclusivity (2 of 3): Amgen v. Hargan
A prior post provided an overview of pediatric exclusivity — how it works and why it was designed this way. This is the first of two posts describing Amgen’s suit against FDA regarding the agency’s denial of pediatric exclusivity for Sensipar (cinacalcet hydrochloride). I’ll start, today, with the back story — the facts and Amgen’s complaint.
Continue reading “Pediatric Exclusivity (2 of 3): Amgen v. Hargan”