As Prescribed

The US Food and Drug Administration (FDA) has issued new guidance describing its current recommendations with respect to master protocols for the evaluation of drugs and biologics to treat or prevent COVID-19. While somewhat belated, this guidance may shed light on FDA’s approach to master protocols for other disease states/products.

The Purple Book—a database containing information about all licensed biological products—is set for a revamping that offers more patent transparency regarding reference biologics.

Over the past year and as a result of the COVID-19 pandemic, FDA relied on alternative inspectional tools and approaches, including remote interactive evaluations and record requests, as well as a prioritization scheme, to continue its oversight activities.

FDA recently issued its first clinicaltrials.gov notice of noncompliance to a clinical trial sponsor for failure to submit clinical trial results to the National Institutes of Health (NIH) databank. Despite having authority to issues such notices since the 2007 passage of the Food and Drug Administration Amendments Act (FDAAA), FDA has not previously exercised its clinicaltrials.gov enforcement authority.

In an apparent effort to combat prescription drug shortages and price spikes, the US Department of Health and Human Services (HHS) recently announced the forthcoming termination of FDA’s Unapproved Drugs Initiative (UDI). This announcement essentially walks back FDA’s enforcement approach regarding “marketed unapproved drugs,” allowing them to continue to be sold consistent with the 2006 FDA policy, and may cause objections from those companies that spent millions of dollars in scientific resources and application user fees to obtain New Drug Application (NDA) approval for these drugs over the last 14 years.

US President Donald Trump signed four executive orders implementing policies on drug pricing on July 24. One of the orders directs the secretary of the US Department of Health and Human Services (HHS) to condition future grants under Section 330(e) of the Public Health Service Act on Federally Qualified Health Centers (FQHCs) establishing practices that ensure the 340B discount they receive on insulin and injectable epinephrine is passed through to low-income patients who lack insurance or have high co-pays or deductibles. The HHS secretary has discretion to set the standard for eligible patients.

Morgan Lewis FDA, litigation, and healthcare lawyers authored a LawFlash outlining key issues that companies marketing products and services for coronavirus (COVID-19) should be aware of, including healthcare, FDA, clinical laboratory, product liability, and digital and telehealth laws and regulations. Many companies working on COVID-19 products, services, and treatments are not traditional healthcare or life sciences companies. This, however, is a highly regulated space, and regulators are continually issuing new policies and regulations. As companies lend their expertise to the battle against the pandemic, they should be aware of the relevant regulatory and legal requirements to avoid enforcement and liability risks.

As summarized in a July 17 LawFlash, FDA has resumed inspections of regulated domestic facilities using a new risk assessment rating system that takes into account the reopening phase of the applicable state, and county level COVID-19 statistics. Based on the risk rating, in any particular US geographic area, FDA may decide to only conduct only mission-critical inspections, inspections with precautions to protect vulnerable staff, or all regulatory inspections. All inspections will be preannounced.

Morgan Lewis FDA lawyers authored a LawFlash on June 29 summarizing FDA’s drug and biologic coronavirus (COVID-19) guidances to date. As noted by the authors, entities within the drug and biologic industries should continue to track FDA’s COVID-19-related actions, as additional guidance and modifications to existing guidances are likely. In fact, just days following the LawFlash, FDA updated its guidance on the Conduct of Clinical Trials of Medical Products during COVID-19 Public Health Emergency to further clarify procedures for informed consent and the use of remote video conference participant visits and published a new guidance on Development and Licensure of Vaccines to Prevent COVID-19. With the continuation of the pandemic and the recent surge in cases, we should expect FDA to continue to quickly push out guidances that have an immediate effect. These guidances not only provide direction on how industry can address immediate challenges and questions, but how FDA may make more enduring regulatory changes.