President Signs Legislation On Device, Drug Company User Fees

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By Bronwyn Mixter  

President Obama July 9 signed into law the Food and Drug Administration user fees bill (S. 3187, Pub. L. No. 112-144).

The law reauthorizes the user fees paid by medical device and drug companies: device companies are expected to pay $595 million over five years (fiscal years 2013 through 2017), while drug companies will pay $693 million in the first year. The new law also creates user fee programs for generic drugs and biosimilar (or follow-on biologic) drugs. The user fees supplement congressional appropriations for FDA.

In addition to the fees, the Food and Drug Administration Safety and Innovation Act includes numerous regulatory provisions affecting drugs and devices, such as incentives for the development of antibiotics, provisions to prevent drug shortages, and a requirement that FDA issue guidance on use of the internet and social media to promote FDA-regulated medical products.

The Senate approved the bill June 26, in a 92-4 vote. The House approved the bill June 20 unanimously (6 MELR 413, 6/27/12).

HHS Secretary Praises Bill.

“This legislation, which passed both the House and Senate with overwhelming bipartisan majorities, will help speed safe and effective medical products to patients and maintain our Nation's role as a leader in biomedical innovation,” Kathleen Sebelius, secretary of the Department of Health and Human Services, said in a statement.

The bill “is the culmination of the work of the administration and Congress, in partnership with patients, the pharmaceutical and medical device industries, the clinical community, and other stakeholders, to provide [FDA] with the tools needed to continue to bring drugs and devices to market safely and quickly and promote innovation in the biomedical industry, and to help secure the jobs supported by drug and device development,” Sebelius said.

Sebelius said the bill will accelerate approval of lower-cost generic drugs and fund the new approval pathway for biosimilars. “These new programs are important to increasing patient access to affordable medicines,” she said.

Provisions on Drug Shortages, Safety.

Additionally, Sebelius said the legislation “enhances the tools available to the FDA to combat drug shortages by requiring manufacturers of certain drugs to notify the FDA when they experience circumstances that could lead to a potential drug shortage.”

“Provisions in the legislation also will help enhance the safety of the drug supply chain in an increasingly globalized market, increase incentives for the development of new antibiotics, renew mechanisms to ensure that children's medicines are appropriately tested and labeled, and expedite the development and review of certain drugs for the treatment of serious or life-threatening diseases and conditions,” Sebelius said.

FDA Now Has Resources.

When the Senate passed the user fees bill, attorney John Manthei, with Latham & Watkins LLP in Washington, said in a statement that “although some of the more controversial provisions were taken out of the bill during the final deliberations, the reforms that made it into the law will hopefully result in a more timely, transparent, and predictable FDA.”

Manthei noted that with all the additional funding, “FDA is going to have a hard time arguing that it does not have sufficient resources to accomplish its mission.”

Key Device-Related Provisions

The newly signed Food and Drug Administration Safety and Innovation Act includes “medical device regulatory improvements” in Title VI of the law.

Key device-related provisions include:

• a clarification of the least burdensome standard for applications (Section 602 of FDASIA);

• a requirement that FDA reports to Congress on when sponsors should submit a 510(k) due to the modification of a device already cleared for marketing (Section 604);

• creation of a system to assess device recall information (Section 605);

• modification of the de novo application process, which allows a company to request classification of a device instead of having to submit a 510(k) (Section 607);

• allowing FDA to change the classification of a device based on new information (Section 608);

• work with other nations to harmonize regulatory requirements (Section 609);

• modification of the post-market Sentinel safety analysis system by adding devices to the database (Section 615); and

• publication of a strategy for regulating health information technology, including mobile medical applications (Section 618).


Other Support.

Allan Coukell, director of medical programs at the Pew Health Group, said in a statement that by signing the bill, “President Obama has ensured that the FDA will have the resources and authority it needs to promote the development of safe, effective and innovative medical products that Americans need.”

“This Administration should recognize the broad, bipartisan support this bill has earned and implement it without delay,” Coukell said.

The Medical Imaging & Technology Alliance (MITA) applauded President Obama for signing the bill into law.

“We commend the President and the bipartisan efforts of Congress to enact this legislation, which is an important step toward maintaining a transparent and efficient FDA review process that will foster the development of innovative technologies,” Gail Rodriguez, executive director of MITA, said. “MITA and its industry partners worked closely with the FDA and Congress to develop a user fee agreement that improves the pre-market review process, while safeguarding patient access to safe and effective medical imaging and radiation therapy technologies. We look forward to working closely with the FDA as the law is implemented to ensure patients benefit from this important legislation.”

Rich Umbdenstock, president and chief executive officer of the American Hospital Association, said in a July 9 statement that his group thanks the president for signing the law. “The number of drug shortages has tripled in the last six years and they are having an impact on patient care. However, the new law is a concrete step in the right direction in addressing this issue.”

The AHA leader said that, with nearly 100 percent of hospitals reporting shortages, “access to life-saving drugs is essential. The law will help hospitals obtain that critical access.” He said the new law helps ease the strain that hospitals across the country have faced in dealing with drug shortages by improving communications between manufacturers and the public, by giving FDA additional authority to speed up approvals, and by allowing health systems “to take practical steps to conserve their inventory of drugs.”

Medical Apps.

When the Senate passed the legislation, the Application Developers Alliance June 26 issued a statement applauding Congress for passing the bill and for directing the Office of the National Coordinator for Health Information Technology, the Federal Communications Commission, and FDA to ensure that government regulation of medical mobile applications “promotes innovation, protects patient safety, and avoids regulatory duplication.”

The bill directs the three agencies to produce a report on an appropriate regulatory framework for health information technology, including mobile medical applications. Under the bill, the Department of Health and Human Services may convene a working group of outside stakeholders to help develop the report.

The Application Developers Alliance urged FDA to quickly convene the working group. The working group should ensure that the three agencies have access to application developer expertise when developing their strategic plan, the alliance said. The Application Developers Alliance is a new association dedicated to meeting the unique needs of application developers. Alliance members include more than 7,500 individual application developers and more than 80 companies, investors, and stakeholders.

By Bronwyn Mixter  

The bill is at

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