Sunday, March 4, 2012

Medical Devices Industry Outlook – April 2011


Last year was challenging for medical device companies given the exigent economic conditions and an uncertain healthcare environment. The MedTech industry was hit by several macro headwinds in 2010 including price/volume and utilization pressure and a more restrictive regulatory environment. Although a number of these issues remain, the industry is expected to fare better this year due to several tailwinds and growth opportunities.

Industry Dynamics

The global medical devices industry is fairly large, intensely competitive and highly innovative, with estimated worldwide sales of more than $300 billion in 2011. The U.S. is the largest medical devices market, with estimated sales of roughly $95 billion in 2010.

The medical devices industry is divided into different segments such as Cardiology, Oncology, Neuro, Orthopedic, Aesthetic Devices and Healthcare IT (“HCIT”). The U.S. medical devices industry continues to grow at a brisk pace, thanks to an aging Baby Boomer population, high unmet medical needs and increased incidence of lifestyle diseases (including cardiovascular diseases, diabetes, hypertension and obesity). Neuro, Orthopedic and Aesthetic represent the fastest growing categories.

The MedTech industry faced a host of issues in 2010, including pricing concerns, hospital admission and procedural volume pressures, health care reform, reimbursement pressures and increasing regulatory involvements, which put investors in a dilemma about these stocks. While several catalysts for growth in 2011 exist -- such as new product launches, an aging population, geographic expansion and emerging markets -- lingering issues from last year remain an overhang.

The aging population represents a major catalyst for demand of medical devices. The elderly population (persons 65 years and above) base in the U.S. was roughly 40 million in 2010, representing around 13% of the nation’s population and accounting for a third of health care consumption. Federal government estimates indicate that the elderly population will catapult to 72 million by 2030, ensuing a major boost for medical devices utilization.

With several growth constraints in the legacy markets, medical device companies are aiming to expand into lucrative new markets. Expansion in the emerging markets, especially those with double-digit annual growth rates, represents one of the best potential avenues for growth in 2011 and beyond.

U.S. Healthcare Reform

The Government-mandated healthcare reform in the U.S. enacted last year -- the Patient Protection & Affordable Care Act -- has created a degree of uncertainty for medical devices companies. The reform has led to a less flexible pricing environment for these companies and may pressure pricing across the board.

Moreover, the proposed tax on device companies may hit their bottom lines. Nevertheless, the Act places considerable emphasis on patient safety and aims to reduce the number of uninsured people (from 19% of all residents in 2010 to 8% by 2016). The new law is expected to eventually extend health insurance coverage to an estimated 32 million Americans currently not insured.

Reimbursement Scenario

Medical device companies are susceptible to significant reimbursement risks as their products are reimbursed by the Center for Medicare and Medicaid (“CMS”) and commercial payers. Third-party reimbursement programs in the U.S. and abroad, both government-funded and commercially insured, continue to develop different means of controlling healthcare costs, including prospective reimbursement cuts with careful review of medical bills and stringent pre-approval requirements.

Increase in the publicly insured base (resulting from the healthcare reform) is expected to lead to lower reimbursement obtained by physicians, hospitals and other health care providers as public insurance generally offers lower reimbursement vis-à-vis private payors. Moreover, private insurance companies are increasing their scrutiny of certain surgeries, which may materially impact utilization in 2011. Changes in reimbursement policy significantly impact medical device companies as they hurt demand for their products and revenues.

Regulatory Landscape - The 510(k) Reform

The U.S. Food and Drug Administration (FDA) declared, on August 3, 2010, a set of ambitious proposals for revamping the 510(k) device approval protocols. The 200-page report, consisting of 55 proposed changes, was designed to serve as a blueprint for the reform, representing FDA’s vision to streamline the device review process and make it more predictable and transparent.

As part of the listed proposals, the FDA intends to create the “Center Science Council,” which will oversee medical device science-based decision-making. Moreover, the regulator is seeking additional information regarding the safety and efficacy of devices in the 510(k) submissions. The FDA also aims to form a subset of moderately risky devices under the “Class IIb” moniker that would require submission of more clinical data and manufacturing information compared to the existing Class II devices.

In a major move, the FDA outlined a plan on January 19, 2011, consisting of 25 proposals, which it intends to implement during 2011 to improve the regulatory approval pathway for medical devices. Most of these proposals, announced by the FDA’s Center for Devices and Radiological Health (“CDRH”), appear favorable for the medical devices industry.

The proposals are aimed at overhauling the three-and-a-half-decade-old 510(k) device approval program by which roughly 4,000 devices have been cleared annually. The list includes streamlining the de novo review process for lower-risk devices, clarifying when devices companies should submit clinical data for a 510(k) application and establishing a new council of senior FDA experts.

However, interestingly, the regulator has shelved the most controversial issues of its previously-announced proposals including a definition of its authority to rescind approval of potentially unsafe or ineffective products and the creation of a new category of devices, which have drawn sneers from industry groups and devices companies. President Obama emphasized that the planned changes represent the government’s efforts to keep patients safer and accelerate the approval process of innovative and life-saving products.

The CDRH forwarded seven of the controversial proposals to the Institute of Medicine, which provides national advice on medical issues, for independent review with feedback expected in mid-2011. These issues were met with significant concerns as indicated in the comments submitted to the public docket.

The FDA plans to implement its new set of plans through a process of regulatory actions such as draft guidance and proposed regulations, which will be open to public feedback. CDRH stated that it will wait for the pending review report of the Institute of Medicine before making a final decision. Moreover, the regulator is planning for a public meeting in April 2011 to seek feedback on two other issues.

While the 510(k) overhaul is still in process, it may eventually make device approval more complex, lengthy and burdensome. Moreover, with the expected rise in the regulatory bar for approvals, medical devices companies may be required to shell out more for R&D.

Our Thesis

We continue to recommend companies providing life-sustaining products, given their strong recurring stream of revenues as patients are unable to forego these products. Furthermore, investors should look at companies with strong earnings quality and liquidity profiles. These companies appear attractive considering their ability to leverage strong balance sheet and cash flows in maximizing shareholder value (via dividends/share repurchases).

Large companies with a wide product portfolio/healthy pipeline and strong infrastructure are also better poised for improved returns. Moreover, companies focusing on more judicious R&D investment, expansion into new markets and cost-saving through restructuring are better placed in 2011. These companies have greater capability of withstanding the sustained macro-level issues and increasing regulatory pressure.

Pressed by a still struggling economy, top-tier devices makers are expected to continue their merger/acquisition binge in 2011, especially as a means to enter new markets and diversify their portfolio. Although this represents an important means for growth, we continue to advise investors to shun companies that have grown historically through extensive acquisitions only.

These companies may find it difficult to fund acquisitions considering the lingering impact of the recession. Also, they face increasing challenges in delivering operational synergies from these acquisitions, which are considered to be the prime reason for failures of mergers and acquisitions.

OPPORTUNITIES

In our universe, we see growth potential in companies dealing with cardiovascular devices, Neuro, radiation oncology and blood-related products. Names include Medtronic Inc. (MDT), Boston Scientific Corporation (BSX), St. Jude Medical (STJ), ZOLL Medical (ZOLL), Abiomed Inc. (AMBD), Cyberonics Inc.(CYBX), Varian Medical (VAR), Accuray Incorporated (ARAY),Haemonetics Corporation (HAE).

The above-listed companies produce life-sustaining products and are less affected by economic turbulence. Some of these companies have been successful in weathering the storm (pricing, currency and procedure growth headwinds) in the cardiovascular space in the wake of recovery. In addition, low global penetration and robust demand provides a positive long-term thesis for investing in the blood processing industry. These companies are all leading players in their respective fields and are potential winners in the long run.

MedTech Giants: Long-Term Winners

With a slew of new products, the Big Three players (Medtronic, Boston Scientific and St. Jude) in the $6.5 billion implantable cardioverter defibrillator (“ICD”) market are well positioned to gain market share, despite the challenging business environment. However, we do acknowledge the fact that a soft CRM market may be a drag on these stocks. The prevailing macroeconomic factors, pricing pressure, austerity measures and the impact of health care reform are expected to continue to weigh on the CRM market through 2011.

Among the names above, Medtronic, the undisputed leader in the MedTech space, has a diversified presence in Cardiovascular, Neuro, Spinal, Diabetes and ENT and boasts an attractive pipeline. Although the company lost some U.S. ICD market share in the most recent quarter due to competition, new products should gradually contribute to growth and help it maintain/gain ICD share.

The long-awaited issue of the FDA warning letters, relating to Medtronic’s Mounds View facility and manufacturing unit in Puerto Rico, was finally resolved in March 2011, paving the way for the U.S. approval and launch of new products including the much-anticipated Protecta ICD device. While Protecta ICD has yet to be cleared in the U.S., it continues to perform very well in Europe.

We believe that the recent approval of the REVO MRI SureScan pacemaker and Arctic Front catheter should provide some support to Medtronic’s CRM business. Its spinal segment should also benefit gradually from the recent product launches.

Moreover, Medtronic plans to adopt restructuring initiatives (including workforce reduction) to sustain long-term growth. The company is also blessed with strong cash flows which it prudently uses for maximizing shareholder value. Medtronic is active on the acquisition front and is investing in emerging markets, which it considers an increasingly important growth driver.

Boston Scientific has maintained its leadership position in the global drug eluting stent (“DES”) market with 35% share (46% in the US market). Importantly, its pipeline DES product Promus Element is shaping up to be a major driver of its stent business. Moreover, we are also encouraged by Boston Scientic’s acquisition of asthma-treatment company Asthmatx, which will enable it to target the pulmonary devices area.

Boston Scientific has undertaken a series of management changes and restructuring initiatives that are expected to contribute to the bottom line moving forward. The company plans to expand its footprint in the emerging markets by reinvesting the savings from restructuring efforts. In this context, we reckon the company’s divestiture of its Neurovascular business as a smart move, enabling it to prepay a portion of the debt and invest in high growth markets.

St. Jude is poised to grow its market share in the CRM segment (especially in ICDs), driven by its new Fortify and Unify lines of devices. Launch of several products (including the quadripolar CRT systems) in the U.S. and Europe should boost the company’s CRM market share in 2011. Moreover, we are optimistic about the emerging opportunity in the intravascular imaging market, enabled by the company’s LightLab acquisition in July 2010.

St. Jude’s EnSite mapping system for diagnosis and treatment of arrhythmia continues to be the key driving force in atrial fibrillation. Also, its $1.3 billion acquisition of heart devices maker AGA Medical Holdings will eventually make St. Jude a clear leader in the structural heart market. The company expects the acquisition to help its sales grow at a low double-digit rate in 2011.

Beyond the MedTech giants, an interesting pick in our portfolio is resuscitation devices-maker ZOLL Medical. ZOLL is a leading player in the global market for external defibrillators, which is worth more than $1 billion. The company’s LifeVest wearable defibrillator business continues to grow at a healthy quarterly run rate, benefiting from increased awareness of the product and associated sales force enhancements.

We also believe that cardiac assist devices-maker Abiomed represents another favorable opportunity for investors. The company possesses a broad portfolio of products that are life-sustaining in nature and has been able to deliver sustainable growth in a challenging economy. Abiomed enjoys strong demand for its Impella cardiac pumps. Higher Impella sales continue to fuel double-digit revenue growth. Based on healthy Impella demand trend, Abiomed has raised its revenue guidance for fiscal 2011.

We are also optimistic about companies in the radiation oncology market such as Varian and Accuray. The radiation oncology market is benefiting from improving trends and technology advancements which are expected to boost the performance of these companies in 2011.

Accuray is a global leader in the field of radiosurgery and continues to enjoy healthy demand for its CyberKnife robotic radiosurgery systems as evidenced by sustained growth in the number of patients receiving treatment with the device. Notably, the company’s acquisition of its rival TomoTherapy (TOMO) will reinforce its foothold in the radiation oncology space.

Varian is the world’s leading manufacturer of integrated radiotherapy systems for treating cancer. The company is poised to increase its market share in the radiation oncology market. Varian is currently enjoying a healthy demand for its coveted RapidArc radiotherapy technology, which is meaningfully contributing to its oncology net order growth. Strong order activity in oncology coupled with healthy momentum in the X-ray products business will set the stage for better performance in 2011.

Emerging Markets: An Opportunity to Diversify

The leading U.S. cardiovascular devices companies such as Medtronic, Boston Scientific and St. Jude are exploring new avenues of growth beyond the mature pacemaker and ICD markets. These companies are increasingly seeking opportunities to expand into fast-growing new therapy areas within or outside the cardiology space, including markets such as atrial fibrillation and neuromodulation.

Among the emerging cardiology markets, an encouraging prospect represents the structural heart market with its major categories including Patent Foramen Ovale (PFO) and Left Atrial Appendage (LAA) occlusion. The AGA acquisition has provided St. Jude with devices targeted at PFO and LAA markets. Moreover, the Transcatheter Aortic Valves (TAVI) market, a potential blockbuster prospect, is emerging as a substantial new growth opportunity for the top-tier MedTech companies.

Intravascular ultrasound imaging (IVUS), Optical Coherence Tomography (OCT) and other next-generation imaging technologies are expected to offer incremental opportunity for the incumbent players such as Volcano Corp. (VOLC), Boston Scientific and St. Jude. The OCT market has been projected to grow at a double-digit rate over the next five years. We believe that emerging markets represent a key catalyst for growth in 2011 and beyond.

Hospital Spending: A Potential Tailwind?


A soft hospital capital spending backdrop was challenging for the MedTech stocks in 2010. The North American and European markets were affected by shrinking budgets for equipment purchases at the height of the recession. However, recent quarterly results indicate signs of recovery in hospital spending in the U.S. Spending levels are improving as hospitals appear to have started replacing their worn-out equipment. This may turn into a potential driver moving forward.

Federal “Stimulus”: A Boon for HCITs

Another area which is interestingly poised for growth these days is Healthcare IT. The landscape has changed since the Obama Administration took initiatives to encourage hospitals and physicians to modernize their health record-keeping as part of the “Stimulus Package.” The Stimulus is aimed at increasing the use of electronic health record (EHR) systems by medical practitioners.

Optimism about the growth prospects of HCIT service providers has improved since the Stimulus package. Moreover, the “meaningful use” rule that enables hospitals to qualify for federal incentive program will boost business opportunities for the incumbents in the long-run. Beneficiaries of the Stimulus include Allscripts-Misys Healthcare Solutions (MDRX) and Quality Systems (QSII).

WEAKNESSES

Japan Debacle: Hurting MedTech


The impact of the recent massive earthquake (and subsequent Tsunami) in Japan and its aftermath on the medical devices industry appears to be substantial. Japan is the second-largest medical devices market after the U.S. It accounts for roughly 45% of the medical devices industry in the Asia-Pacific region.

The roughly $25 billion Japanese medical devices sector has been an extremely successful market for American medical devices firms. U.S. firms account for roughly 60% of all imported medical devices products in Japan.

MedTech majors such as Medtronic, Boston Scientific and Johnson & Johnson’s (JNJ) Depuy has a major exposure to the Japanese medical devices sector. Other key players such as Abbott Laboratories (ABT), St. Jude, Stryker Corporation (SYK),Becton, Dickinson (BDX) and Zimmer Holdings (ZMH) also have strong foothold in this lucrative market. Many of these players derive sizable revenues from Japan.

The impact of the horrific disaster has been already felt as it has led to a major disruption in the global supply chain with Japan being a critical link. It will inevitably result in delays in shipments, elective surgical procedures and regulatory clearance for new products. Investors in devices companies, especially those with large export businesses in Japan, have been concerned over the long-term effect of the Japan crisis (as reflected in falling share prices), which is hard to gauge at this moment.

Orthopedic Still a Concern

We continue to advise investors to spurn companies in the orthopedic domain until we see a complete economic recovery. Companies in this space continue to struggle as patients defer their elective procedures given the lingering economic softness. Companies that fit the bill include Stryker, Zimmer Holdings,CONMED Corporation (CNMD), Wright Medical Group (WMGI) and Symmetry Medical (SMA).

However, we do admit that companies such as Stryker and Zimmer, with less exposure to metal-on-metal (MoM) hip products, are better placed to gain share in 2011 than their highly-exposed counterparts such as JNJ/Depuy and Wright Medical. The ongoing transition from MoM implants to next-generation hip systems represents a tailwind for players such as Stryker and Zimmer.

Pricing Woes Linger

Pricing concerns on hips, knees and spine products have impaired the performances of most of the orthopedic companies in 2010. The pricing issue, at a macro-level, remains a key concern. The effect of government health care cost containment efforts and continuing pressure from local hospitals and health systems as potential Medicare reimbursement cuts create additional reasons for hospitals to push back pricing. This is expected to continue hurt selling prices on a global basis.

Moreover, the advent of group purchasing organizations (GPOs), which act as agents that negotiate vendor contracts on behalf of their members, has also put pressure on pricing. The prevailing economic climate has bolstered the bargaining power of GPOs. The pricing scenario in 2011 is expected to stay the same as last year as hospitals continue to push back pricing.

A Broken Back

The U.S. spine market, which grew at a double-digit rate in 2009, took a tumble in 2010. The spinal market was worst hit by the pricing/volume headwinds as manifested by a moribund quarterly growth trend. Leading companies in the orthopedic space such as Stryker and Zimmer continue to experience weak spine sales, which have somewhat shaken our confidence in these stocks.

Pricing pressure and reimbursement uncertainties coupled with austerity measures in Europe are expected continue to weigh on this market over the next few quarters. Moreover, private payors are delaying spine surgeries by requiring more documentation before approving such procedures, thereby contributing to the slowdown in this market.

Procedure Volume: Stabilizing but Still a Headwind

The $12 billion replacement hips and knees markets have been affected by lingering economic softness, as reflected in procedure volume pressure. Cash-strapped patients continue to defer surgeries given the weak economy.

Procedural volumes in the U.S. have been negatively impacted as a result of a high unemployment rate, which has resulted in the expiry of health insurance as well as a decline in enrollment in private health plans.

As per the demographic analysis, these trends had a significant impact on the potential patient base for joint replacement procedures, those between 45 and 65 years of age and without any Medicare coverage. On the other hand, austerity measures are contributing to the reduction in procedure volumes in Europe. The hip/knee market in Europe is expected to remain challenged in 2011, but to a lesser extent than 2010.

A general sluggishness in the orthopedic industry has been evident from the weak sales reported by most of the leading players in this market. Companies such as Stryker and Zimmer derive a chunk of their revenues from replacement hips and knees. On a somewhat positive note, recent trends indicate favorable procedure (hip/knees) volume growth, mostly likely due to pent-up patient demand. While this may point to a bounce-back, a material turnaround is not likely in 2011.

Monday, February 20, 2012

Device Approvals and Clearances


Downloadable 510(k) Files

You can download any of the following zipped files, each of which contains information about the releasable 510(k)s for the time frame indicated. Each record in the file is 272 characters in length. These files are replaced monthly usually on the 5th of each month. In addition there is a file description and an explanation of some of the codes used in the file. You can also download or search the Product Code Classification Database.
Most current month availablePMNLSTMN.ZIP
1996-currentPMN96CUR.ZIP
1991-1995PMN9195.ZIP
1986-1990PMN8690.ZIP
1981-1985PMN8185.ZIP
1976-1980PMN7680.ZIP

Classification of Products as Drugs and Devices and Additional Product Classification Issues


I. Introduction

FDA regularly receives requests from medical product developers concerning the classification of their products.  We believe that efficient, effective regulation of such products is facilitated by providing guidance on issues frequently raised in relation to such requests.  Certain issues have arisen often relating to whether a product should be classified as a drug or a device.  Accordingly, this guidance focuses particularly on when a product may be classified as a drug or a device.  This guidance also addresses additional issues relating to product classification, including how to obtain a formal classification determination from FDA for a medical product and the status of prior Agency determinations concerning product classification.
This guidance is organized into three substantive sections.
Section II offers guidance on the process to obtain a formal determination of whether a product is classified as a drug, device, biological product, or combination product. [2]
Section III provides some general concepts for making classification determinations and addresses specific issues arise in determining whether products should be classified as drugs or devices.[3]
Section IV of this document provides an overview of the status of the current intercenter jurisdictional agreements, classifications that have been made by regulation, and classifications the Agency has made for a product that does not fall within the scope of a regulation, for example, by granting a marketing authorization or in responding to a request for designation.
The Agency recommends that manufacturers contact the Office of Combination Products (OCP) to confirm the classification of any products they may wish to market if the appropriate classification appears unclear for any reason.  Section V provides contact information for OCP.
FDA's guidance documents, including this guidance, do not establish legally enforceable responsibilities. Instead, guidances describe the Agency's current thinking on a topic and should be viewed only as recommendations, unless specific regulatory or statutory requirements are cited.  The use of the word "should" in Agency guidances means that something is suggested or recommended, but not required. 

II. What Is the Process for Obtaining a Formal Classification Determination for a Product?

If the classification of a product as a drug, device, biological product, or combination product is unclear or in dispute, a sponsor can file a request for designation (RFD) with OCP in accordance with Part 3 of Title 21 of the Code of Federal Regulations (21 CFR Part 3) to obtain a formal classification determination for the product, as provided for under section 563 of the FD&C Act (21 USC 360bbb-2). In reviewing an RFD, the Agency considers the information provided in the RFD as well as other information available to the Agency at that time. Generally, the Agency will respond in writing within sixty days of the sponsor’s RFD filing, identifying the classification of the product as a drug, device, biological product, or combination product. If the Agency does not provide a written response within sixty days, the sponsor’s recommendation respecting the classification of the product is considered to be the final determination. 21 USC 360bbb-2(b) and (c).

The Agency may not modify a determination made under section 563 of the classification of a product or of the component of FDA that will regulate the product, except with the written consent of the sponsor, or for public health reasons based on scientific evidence. 21 USC 360bbb-2(b) and (c). However, the determination pertains only to the product described in the designation letter. A new determination may be appropriate if there is a change in, for example, an intended use or component of the product, or if the sponsor or Agency becomes aware of additional information that reveals that the mode (or modes) of action differs from what was originally described in the RFD.
Please contact OCP if you have questions regarding whether to submit an RFD or what information to provide and issues to address in an RFD to ensure its completeness and clarity.  More detailed information on the RFD process is provided in OCP’s guidance How to Write a Request for Designation (RFD).

III. What does FDA Consider in Determining Whether to Classify a Product as a Drug or a Device?

FDA’s determination of whether to classify a product as a drug or a device will be made based on the statutory definitions of these terms set forth in sections 201(g) and 201(h) of the FD&C Act, as applied to the scientific data concerning the product that are available to FDA at the time the classification determination is made. This section presents the drug and device definitions and discusses how the Agency addresses certain interpretive issues that arise when determining whether a product should be classified as a drug or a device.

A. Statutory Definitions

1. Drug.

Section 201(g) of the FD&C Act (21 USC 321(g)) provides that the term "drug" means:
(A) articles recognized in the official United States Pharmacopoeia, official Homoeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them; and (B) articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; and (C) articles (other than food) intended to affect the structure or any function of the body of man or other animals; and (D) articles intended for use as a component of any articles specified in clause (A), (B), or (C). . . .

2. Device. 

Section 201(h) of the FD&C Act (21 USC 321(h)) provides that the term "device" means:
… an instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other similar or related article, including any component, part, or accessory, which is--
(1) recognized in the official National Formulary, or the United States Pharmacopeia, or any supplement to them,
(2) intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease, in man or other animals, or
(3) intended to affect the structure or any function of the body of man or other animals, and
which does not achieve its primary intended purposes through chemical action within or on the body of man or other animals and which is not dependent upon being metabolized for the achievement of its primary intended purposes.

B. How does the Agency interpret certain key provisions of the definition of device?

Products that meet the definition of device under section 201(h) of the FD&C Act also meet the definition of drug under section 201(g) of the FD&C Act, due to the broader scope of the drug definition.  Subject to the considerations noted in section III.C regarding whether the product also meets the definition of biological product, if a product is shown to meet both the drug and device definitions, the Agency generally intends to classify the product as a device. If a product meets the drug definition, but there is uncertainty regarding whether it also meets the device definition, the Agency generally intends to classify the product as a drug (again, subject to the considerations noted in section III.C).
Consequently, medical product classification determinations often focus substantially on whether the product meets the statutory definition of device.  The following discussion presents the Agency’s current thinking on certain interpretive issues that arise with respect to the statutory definition of device.

1. How does the Agency interpret "similar or related article" in the definition of device?

 The first clause of the device definition provides that device "means an instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other similar or related article . . ." (emphasis added). The issue of whether a product may be considered a "similar or related article" under this clause can arise, for example, with regard to products in liquid, semi-liquid, gel, gas, or powder form. In some circumstances, the Agency believes that such products may be appropriately considered "similar or related articles," and may be classified as devices, so long as they also satisfy the remainder of the device definition under section 201(h) of the FD&C Act, including the chemical action exclusion discussed in section III.B.2 below. This could be the case, for example, for wound covering gels, powders or liquids put on the skin as a barrier, or gases used as space fillers.

2. How does the Agency interpret "does not achieve its primary intended purposes through chemical action within or on the body of man" in the definition of device?

A product may be classified as a device if it "does not achieve its primary intended purposes through chemical action within or on the body of man or other animals . . .", provided the product also meets the rest of the device definition under section 201(h).   Interpretation of this phrase is often at issue in classification determinations. The Agency has published a companion draft guidance, Interpretation of the Term "Chemical Action" in the Definition of Device under Section 201(h) of the Federal Food, Drug, and Cosmetic Act, addressing our interpretation of the term "chemical action" in section 201(h).  Accordingly, this guidance does not address the interpretation of the term "chemical action."  However, the other terms of this phrase are also integral to classification determinations, and the Agency’s interpretation of these terms is presented below.
First, a product that exhibits chemical action within or on the body of man may meet the device definition provided that the product "does not achieve its primary intended purposes through" such chemical action.  Thus, if a product’s chemical action contributes to an effect other than a primary intended purpose of the product, the product could fall within the scope of section 201(h).  In contrast, a product that depends, even in part, on chemical action within or on the body of man to achieve any one of its primary intended purposes, would not be a device.  In addition, if a product has multiple therapeutic effects, each of these would be a "primary intended purpose" of the product, and the product would not meet the device definition if it achieves any one of these primary intended purposes through chemical action within or on the body of man.  Second, under this phrase, a product that "achieves its primary intended purposes through chemical action" still meets the device definition provided that the chemical action does not occur "within or on the body of man or other animals." 

C.  How is a product classified if it meets the definitions for both drug and device, and might also meet the definition for biological product?

As explained in section III.B above, products that meet the device definition in section 201(h) of the FD&C Act also meet the drug definition in section 201(g) of the FD&C Act.  In addition, products that meet the drug definition, or both the drug and device definitions, may also meet the definition of biological product under section 351(i) of the PHS Act (42 USC 262(i)).
Section 351(i) (as amended by the Biologics Price Competition and Innovation Act of 2009, title VII of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 7002 (2010)) provides that:
The term "biological product" means a virus, therapeutic serum, toxin, antitoxin, vaccine, blood, blood component or derivative, allergenic product, protein (except any chemically synthesized polypeptide), or analogous product, or arsphenamine or derivative of arsphenamine (or any other trivalent organic arsenic compound), applicable to the prevention, treatment, or cure of a disease or condition of human beings.
Some products that meet the drug definition or both the drug and device definitions, and that also meet the definition of biological product, might be classified as biological products, rather than as devices or drugs, and be subject to licensure under the PHS Act.[4]  If you have questions regarding whether a product meets the definition of biological product or how this might affect its classification, please contact OCP.

IV.  What Is the Status of the Intercenter Agreements and Prior Agency Classification Determinations?

The Agency must classify products in accordance with the statutory definitions in the FD&C Act and the PHS Act.  Sponsors often argue that their products should be classified in a certain way because products they consider similar to their product have previously been classified or regulated in a particular way.  While the classification of similar products may help to inform the classification of the product at issue, we believe that a case-by-case approach based on the specific characteristics of the product, including its intended use(s), and the current state of scientific knowledge at the time the classification determination is made is necessary to ensure that products are classified properly under the applicable statutory criteria.

A. What effect do intercenter agreements have on product jurisdiction?

CBER, CDER and CDRH have entered into intercenter agreements (agreements) to clarify certain product jurisdictional determinations.  See "Intercenter Agreements."  Sponsors sometimes assert that their product falls within a certain category of products identified in an agreement and should, therefore, be classified in the same manner as other products in that category.  While these agreements describe the allocation of responsibility for categories of products to specific agency components, they constitute nonbinding determinations.[5]  See 21 CFR § 3.5.   
In 2006, the Agency reviewed these agreements and preliminarily determined that they continued to provide helpful, nonbinding guidance.  See U.S.C. § 353(g)(4)(F).  The Agency proposed to continue them in effect, with the understanding that they should not be independently relied upon as the Agency's most current, complete jurisdictional statements (71 FR 56,988, Sept. 28, 2006).  However, in light of current scientific understanding, we are currently reviewing the agreements to determine whether it would be appropriate to modify them or replace them with new agreements.
In the interim, we note that these agreements should be considered in light of statutory definitions and current scientific understanding. Products that might appear to fall within a category addressed in one of these agreements can only be classified consistent with other products in that category if such a classification is legally permissible in light of the specific characteristics of that particular product. In addition, to the extent that those agreements appear to support classification determinations that are inconsistent with this guidance, this guidance supersedes those agreements with respect to such classifications.
In some cases, the Agency has previously addressed the classification of a product (when the product consists solely of a drug, device, or biological product) or a constituent part[6] of a combination product that is subsequently presented in an RFD.  In reviewing such an RFD, OCP may determine that, in light of current scientific understanding, the means by which such a product or constituent part achieves an intended use may warrant a different classification for that product or constituent part in the pending RFD than the Agency previously provided.[7]  The following describes the Agency’s proposed approach to address these relatively rare sets of circumstances and the particular considerations they present. 
A product (when the product consists solely of a drug, device, or biological product) or a constituent part of a combination product at issue in an RFD may fall within the scope of an existing classification issued by regulation.  Such a classification might be the result, for example, of the development of a monograph for over-the-counter drugs or a device classification regulation.  However, in reviewing an RFD, OCP may, for instance, determine that the product or constituent part meets the statutory definition of a device even though, for example, the ingredient(s) in the product or constituent part is included in an OTC drug monograph.  Alternatively, the product or constituent part at issue in the RFD may fall within a device classification regulation for a use proposed in the RFD, but OCP may be aware of evidence indicating that the product or constituent part may achieve its primary intended purposes through chemical action within or on the body of man and therefore may not meet the device definition.  In such cases, if a regulation establishes the classification of a product or constituent part of a combination product for the use proposed in the RFD, we believe it is appropriate to continue to apply that existing classification until or unless the Agency changes the classification by revising the regulation.
Accordingly, in responding to an RFD, the Agency would generally classify the product or the constituent part in the RFD in accordance with the regulation if the product or constituent part falls within the scope of that regulation.  The Agency may then assess whether it would be appropriate to change the classification and, if so, will initiate notice and comment rulemaking to do so. 
In some cases, FDA may classify a product that does not fall within the scope of an existing classification established by regulation, for example, by granting marketing authorization to the product or responding to an RFD. A product (when the product consists solely of a drug, device, or biological product) or constituent part of a combination product that is the same [8] as that previously classified product, may later be at issue in a pending RFD. [9]
In instances where the product presented in a pending RFD appears to be a drug or device (as opposed to a combination product), if current scientific understanding may potentially lead to a different classification of that product than the Agency previously applied, the Agency generally intends to refrain from providing, within 60 days of receipt of the RFD, a “written statement” or letter of designation concerning the requested classification or component of FDA that would regulate the product pursuant to section 563 of the FD&C Act. 21 U.S.C. § 360bbb-2. As a result, in such cases, the recommendation made by the submitter concerning the classification or Agency component would be considered a final determination by FDA of such classification or component. 21 U.S.C. § 360bbb-2(c); 21 CFR § 3.8(b).
This approach would provide consistency for certain products.  This approach would also enable the Agency to re-evaluate the appropriate classification for a group of products through a public process and to determine, if necessary and appropriate, how best to administratively transfer the entire group of products.[10]  In this manner, the Agency intends to promote procedural regularity and predictability to relevant stakeholders.
If the product presented in a pending RFD appears to be a combination product, and the Agency has previously classified a constituent part that is the same as one of the constituent parts in the potential combination product, the Agency generally intends not to classify that constituent part in responding to the RFD if the product can be classified or assigned pursuant to section 563 without addressing the classification of that constituent part.  In instances where a designation cannot be made for the product without classifying the constituent part, the Agency will evaluate what approach is appropriate for the RFD on a case- by-case basis.
FDA is currently reviewing issues, including regulatory and legal options, relating to the classification and transfer of products as appropriate that fall within the scope of this section IV.B.2. Potential regulatory and legal issues the Agency is examining include determining when it may be appropriate to:  (1) exercise enforcement discretion for products subject to an existing classification; (2) transfer products by determining that a currently approved application also meets the applicable requirements for another type of approved application (e.g., determining whether an approved NDA meets the requirements for an approved PMA); or (3) withdraw the existing approval for products and require new approvals for such products under the premarket approval authorities associated with the new classification.  In all events, should FDA determine that action should be taken to transfer or address the classification of any such products, such efforts would be pursued in a transparent manner consistent with applicable legal requirements. 
*  *  *
Should it appear that reclassification and/or transfer to different Agency components may be appropriate for multiple groups of products, the Agency intends to prioritize among such groups to determine the order in which to address them.  Whatever the scope and particulars of the administrative process to maximize consistency of classification among products, the Agency will be transparent and comply with all applicable legal requirements.  We acknowledge that we have addressed associated regulatory and procedural issues in this section IV in general terms, and we encourage comments on our proposed approach and related issues.

V.        Additional Information

For further information on the classification of products, as devices, drugs, biological products, or combination products, please refer to OCP’s webpage at http://www.fda.gov/CombinationProducts/default.htm or contact OCP at:
Office of Combination Products
Food and Drug Administration
WO32, Hub/Mail Room #5129
10903 New Hampshire Avenue
Silver Spring, MD 20993
(Tel) 301-796-8930
(Fax) 301301-847-8619
combination@fda.gov

Footnotes

1. This guidance has been prepared by the Office of Combination Products in the Office of the Commissioner (OCP), the Center for Biologics Evaluation and Research (CBER), the Center for Drug Evaluation and Research (CDER), and the Center for Devices and Radiological Health (CDRH).
2. The term "combination product" is defined in 21 CFR 3.2(e).  For further information regarding the definition of combination product and the regulation of combination products, please visit the webpage for the Office of Combination Products at www.fda.gov/CombinationProducts/default.htm.
3. This section generally focuses on approaches for determining whether a product will be classified as a drug or a device based on application of the statutory definitions for these two terms under sections 201(g) and 201(h) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 USC 321(g) and (h)).  However, as discussed more fully in section III.C of this guidance, articles that meet these statutory definitions might also meet the statutory definition of biological product under section 351(i) of the Public Health Service Act (PHS Act) (42 USC 262(i)) and could be subject to licensure under section 351 of the PHS Act as discussed in that section.  The Agency expects to revise this guidance in the future to address aspects of its approach to classifying biological products.  Additionally, please note that this document does not address the regulatory status of human cells, tissues, cellular or tissue-based products, as defined in 21 CFR Part 1271.
4. It bears noting that an article that meets the definition of biological product and is subject to licensure under the PHS Act is still subject to regulation under the FD&C Act as a drug or device, although drug or device marketing authorization under the FD&C Act is not required so long as the article has an approved license under the PHS Act.  See 42 USC 262(j).
5. The agreements and the transfer of therapeutic biological products to CDER ("Transfer of Therapeutic Biological Products to the Center for Drug Evaluation and Research," June 30, 2003,) describe assignment for specific classes of products. These documents are intended to explain assignment among the relevant centers when such assignment may not be obvious, e.g., when a device might be regulated by CBER rather than CDRH or when a biological product is assigned to CDER rather than CBER.
6. The term "constituent part" is typically used by the Agency to refer to the distinct, regulated articles (e.g., drug and device) that constitute a combination product. 
7. For example, this issue may arise in some instances when determining the classification of gels, liquids, semi-liquids, or powders. 
8. For purposes of this guidance, sameness of a product or constituent part will generally be determined based on the product’s or constituent part’s chemical or physical structure, the intended use of the product, and the mode of action by which the product or constituent part achieves its intended use. 
9. The Agency has not developed a general policy on this issue for products or constituent parts that may meet the definition of biological product.  If you have questions regarding such products, please contact OCP.
10. Note, however, that FDA can classify the product or constituent part presented in the RFD in accordance with current scientific understanding and applicable statutory definitions, notwithstanding the fact such a determination may result in similar products being classified differently for some period of time.  In instances where an RFD determination has led to a new classification that is different from the previous classification of the same product or constituent part, it is FDA’s intention to initiate an administrative process, consistent with principles of transparency and applicable legal requirements, to resolve these differences in classification.  Where appropriate, the Agency anticipates transferring products regulated under the previous classification to the appropriate agency component and regulating those products under the statutory authorities relevant for the new classification. 

Certifications To Accompany Drug, Biological Product, and Device Applications/Submissions: Compliance with Section 402(j) of The Public Health Service Act, Added By Title VIII of The Food and Drug Administration Amendments Act of 2007


I.  Introduction


This guidance describes the Food and Drug Administration’s (FDA or Agency) current thinking regarding the types of applications and submissions that sponsors, industry, researchers, and investigators submit to the Agency  with accompanying certifications under section 402(j)(5)(B) of the Public Health Service Act (PHS Act), 42 U.S.C. § 282(j)(5)(B).  New section 402(j) of the PHS Act was added by Title VIII of the Food and Drug Administration Amendments Act of 2007 (FDAAA) (Public Law 110-85).
FDA’s guidance documents, including this guidance, do not establish legally enforceable rights or responsibilities.  Instead, guidances describe the Agency’s current thinking on a topic and should be viewed only as recommendations, unless specific regulatory or statutory requirements are cited.  The use of the word should in Agency guidances means that something is suggested or recommended, but not required.

II.  Background


Title VIII of FDAAA, Public Law 110-85, amended the PHS Act by adding new section 402(j), 42 U.S.C. § 282(j).  The new provisions require that additional information be submitted to the clinical trials data bank (www.ClinicalTrials.gov) previously established by the National Institutes of Health (NIH)/National Library of Medicine (NLM), including expanded information on clinical trials and information regarding the results of clinical trials.
One new provision, 42 U.S.C. § 282(j)(5)(B), section 402(j)(5)(B) of the PHS Act, requires that a certification accompany certain human drug, biological product, and device applications and submissions to FDA.  The new provision reads as follows:
(B) CERTIFICATION TO ACCOMPANY DRUG, BIOLOGICAL PRODUCT, AND DEVICE SUBMISSIONS.—At the time of submission of an application under section 505 of the Federal Food, Drug, and Cosmetic Act, section 515 of such Act, section 520(m) of such Act, or section 351 of this Act, or submission of a report under section 510(k) of such Act, such application or submission shall be accompanied by a certification that all applicable requirements of this subsection have been met. Where available, such certification shall include the appropriate National Clinical Trial control numbers.
The certification requirement went into effect on December 26, 2007.  To assist sponsors, industry, researchers, and investigators in complying with the requirement, FDA created a certification form to be used to satisfy the certification requirement.  This form is FDA Form 3674, OMB Control No. 0910-0616.  

III. Purpose and Agency Recommendations


FDA has received numerous inquiries asking whether various kinds of information and documents that sponsors, industry, researchers, and investigators submit to the Agency must be accompanied by the certification.  FDA also has had experience with the submission of certifications since the form was implemented.  This guidance provides FDA’s current thinking, for purposes of implementing Title VIII of FDAAA,1 regarding specific types of applications and submissions submitted to FDA under section 505, 515, 520(m), or 510(k) of the Federal Food, Drug, and Cosmetic Act (the Act), or under section 351 of the PHS Act, and accompanying certifications described in section 402(j)(5)(B), 42 U.S.C § 282(j)(5)(B).
The purpose of Title VIII is to provide a means for ensuring that the public has access to information about certain clinical trials.  Specifically, Title VIII is intended to provide a mechanism for the public to learn about certain clinical trials that are being conducted, as well as the results of those trials.  In determining its current thinking on specific applications and submissions submitted under the statutory sections cited above and submission of accompanying certifications, FDA has focused on the role the certification plays in helping achieve the purposes of Title VIII of FDAAA. 
One purpose of the certification is to require the submitter to confirm that it has complied with all applicable requirements of Title VIII, including the requirement to register applicable clinical trials.2  Failure to submit a certification, knowingly submitting a false certification, failure to submit required clinical trial information, and submission of clinical trial information that is false or misleading are all newly added prohibited acts under section 301(jj) of the Act (21 U.S.C. § 331(jj)).  Requiring a certification to accompany certain applications and submissions submitted to FDA is, therefore, one way of encouraging compliance with the provisions of the law.
The certification also facilitates FDA’s exercise of its responsibilities under the new law.  For example, as stated previously, FDAAA created four new prohibited acts relating to compliance with the requirements of Title VIII, including compliance with the requirement to submit a certification.  The certification requirement is critical to the Agency’s ability to determine whether the law has been complied with and whether an enforcement action is appropriate.  In addition, section 402(j)(3)(F) of the PHS Act (42 U.S.C. § 282(j)(3)(F)) requires FDA to notify the Director of NIH of certain actions taken on applications and reports that were accompanied by a certification. That notification alerts NIH to the fact that the responsible party must submit the results of the trials within a certain period of time, thereby enabling NIH to exercise its responsibilities under Title VIII.  The information provided in the certification form also will help FDA assist NIH in “linking” information posted on FDA’s website regarding certain FDA regulatory actions to specific applicable clinical trials included in the registry and results databases.  This linking, using the information in the certification form, particularly the NCT (National Clinical Trial) number(s) required in the form, eventually will allow FDA to help the public more easily correlate various reports, medical reviews, advisories, health alerts, advisory committee actions, and other materials with specific applicable clinical trials registered with ClinicalTrials.gov and identified by the NCT number.
New drug applications (NDAs), supplemental NDAs, biologics license applications (BLAs), supplemental BLAs, abbreviated new drug applications (ANDAs),  premarket approval applications (PMAs), PMA “panel track” supplements, humanitarian device exemptions (HDEs), and resubmissions of these, are all “applications” under their respective sections of the Act or the PHS Act.  Similarly, 510(k)s are “submissions of a report” under that section of the Act.  Thus, all of these specified applications and submissions fall within the plain language of the statutory provision.Additionally, they all represent the initiation of the regulatory review process through which clinical investigations supporting approval of a previously unapproved medical product are submitted to FDA for marketing approval of that product.  Because amendments to pending applications, pending supplemental applications, or pending submissions of 510(k)s are not independently “applications” or “submissions of a report under 510(k),” such amendments need not be accompanied by a certification.
We believe that the statutory requirement to submit a certification also applies to investigational new drug applications (INDs) and the submissions of new protocols to INDs.  INDs are authorized under § 505(i) of the Act (see also 21 C.F.R. § 312.3 (defining “IND” as “an investigational new drug application”)).  We also have concluded that a certification must accompany the submission of a new clinical protocol to an IND as described in 21 CFR § 312.30(a).  There are a number of different types of submissions to an IND that are referred to as “amendments” under FDA’s regulations, but these types of submissions are varied as to their purpose and the role they play in the regulatory process.  One type of submission is that of a new protocol submitted to a pending IND.  A new clinical protocol that is submitted to a pending IND, for a study not already included in an existing protocol, is the investigational stage analog to an efficacy supplement to an NDA or BLA for a new indication not already covered by the existing application.  New protocols are referred to as amendments to INDs, and are submitted to existing INDs, as a matter of regulatory process;  FDA could have required that new protocols filed with the Agency be submitted to a new IND, but for administrative ease chose to have them submitted to the existing IND.  In contrast, other types of amendments to pending INDs are more analogous to amendments to NDAs, BLAs, and PMAs;  as such, consistent with our interpretation of the statute with regard to amendments to NDAs, BLAs, and PMAs, certifications need not be submitted with IND amendments other than submission of a new protocol to an existing IND.
FDA intends to exercise enforcement discretion with regard to submission of certifications with four categories of applications and submissions: 1) a supplement to an approved NDA, BLA, or PMA other than an efficacy supplement (for NDAs and BLAs) or a panel track supplement (for PMAs), 2) a supplement to an approved ANDA, 3) INDs that fall within the types of INDs described in section 561 of the Act (21 U.S.C. § 360bbb), and 4) submission of a 510(k) if that submission does not refer to, relate to, or include information on or from a clinical trial.  FDA believes that, in contrast to the types of applications and submissions discussed above, the majority of supplements to approved NDAs, BLAs, and PMAs do not refer to, relate to, or include information on or from a clinical trial.  Furthermore, even to the extent that, for example, a labeling supplement to an approved NDA may refer to, relate to, or include information on or from one or more clinical trials, those clinical trials in all likelihood were conducted under an IND, and therefore the sponsor would already have submitted a certification regarding those trials during the investigational phase.  It would be repetitive and would serve little or no purpose to have a sponsor repeatedly certify to having complied with the requirements of Title VIII of FDAAA with regard to the same clinical trial. 
With regard to supplements to approved ANDAs, even when such supplements are intended to add an additional indication (such as when existing patents or exclusivities have expired), such supplements would not ordinarily refer to, relate to, or include information on or from any clinical trial other than those which were referenced or referred to in the original ANDA submission.  Thus, as with non-efficacy supplements to approved NDAs and BLAs, and non-panel track supplements to approved PMAs, certification with a supplemental ANDA would be repetitive, and would serve little or no purpose with regard to ensuring that the requirements of Title VIII had been met. 
With regard to INDs that fall within the types of INDs described in section 561 of the Act (21 U.S.C. § 360bbb), none of the clinical trials conducted under such INDs will meet the definition of applicable drug clinical trial in section 402(j)(1)(A)(iii) of the PHS Act (42 U.S.C. § 282(j)(1)(A)(iii)), and thus none of those trials will be subject to the registration and reporting requirements as set forth in Title VIII of FDAAA.  One of the criteria for being an applicable drug clinical trial is that the trial at issue is a “controlled clinical investigation.”  Trials conducted under INDs that fall within the types of INDs described in section 561 of the Act are not controlled.  Because none of the clinical trials conducted under an IND of the type described in section 561 of the Act would be subject to the requirements of Title VIII of FDAAA, certification with regard to such clinical trials when submitting an IND for such a clinical trial would serve little or no purpose with regard to ensuring that the requirements of Title VIII had been met.
Finally, with regard to 510(k)s, the majority of 510(k)  submissions do not refer to, relate to, or include information on or from a clinical trial.  Accordingly, FDA believes that certification with regard to 510(k) submissions that do not refer to, relate to, or include information on or from a clinical trial would serve little or no purpose with regard to ensuring that the requirements of Title VIII had been met. 
Because FDA believes that the statutory purposes of Title VIII would not be furthered by the submission of certifications with these four categories of applications and submissions, the Agency intends to exercise enforcement discretion regarding certification with these applications and submissions.
Based on these considerations and as described above, FDA recommends that a certification accompany the following types of applications and submissions:
Applications/Submissions (including Resubmissions)
IND
New Clinical Protocol Submitted to an IND
NDA
Efficacy Supplement to an Approved NDA
BLA
Efficacy Supplement to an Approved BLA
ANDA
PMA
PMA Panel Track Supplement
HDE
510(k) that refers to, relates to, or includes information on a clinical trial

IV. Paperwork Reduction Act of 1995
This guidance refers to previously approved collections of information.  These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. §§ 3501-3520).  The collections of information have been approved under OMB Control No. 0910-0616.