[Federal Register Volume 70, Number 164 (Thursday, August 25, 2005)]
[Rules and Regulations]
[Pages 49848-49862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16527]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Part 3
[Docket No. 2004N-0194]
Definition of Primary Mode of Action of a Combination Product
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
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SUMMARY: The Food and Drug Administration (FDA) is amending its
combination product regulations to define ``mode of action'' (MOA) and
``primary mode of action'' (PMOA). Along with these definitions, the
final rule sets forth an algorithm the agency will use to assign
combination products to an agency component for regulatory oversight
when the agency cannot determine with reasonable certainty which mode
of action provides the most important therapeutic action of the
combination product. Finally, the final rule will require a sponsor to
base its recommendation of the agency component with primary
jurisdiction for regulatory oversight of its combination product by
using the PMOA definition and, if appropriate, the assignment
algorithm. The final rule is intended to promote the public health by
codifying the agency's criteria for the assignment of combination
products in transparent, consistent, and predictable terms.
DATES: The regulation is effective November 23, 2005.
FOR FURTHER INFORMATION CONTACT: Leigh Hayes, Office of Combination
Products (HFG-3), Food and Drug Administration, 15800 Crabbs Branch
Way, suite 200, Rockville, MD 20855, 301-427-1934.
SUPPLEMENTARY INFORMATION:
I. Introduction
In the Federal Register of May 7, 2004 (69 FR 25527), FDA published
a proposed rule that proposed to define ``mode of action'' (MOA) and
``primary mode of action'' (PMOA) (the proposed rule). Along with these
definitions, the proposal set forth an algorithm the agency proposed to
use to assign combination products to an agency component for
regulatory oversight when the agency cannot determine with reasonable
certainty which mode of action provides the most important therapeutic
action of the combination product. Finally, the proposal put forth a
requirement that a sponsor make its recommendation of the agency
component with primary jurisdiction for regulatory oversight of its
combination product by using the PMOA definition and, if appropriate,
the assignment algorithm.
As set forth in part 3 (21 CFR part 3), and as described in the
proposed rule, a combination product is a product comprised of any
combination of a drug and a device; a device and a biological product;
a biological product and a drug; or a drug, a device, and a biological
product. A combination product includes: (1) A product comprised of two
or more regulated components, i.e., drug/device, biological product/
device, drug/biological product, or drug/device/biological product,
that are physically, chemically, or otherwise combined or mixed and
produced as a single entity; (2) two or more separate products packaged
together in a single package or as a unit and comprised of drug and
device products, device and biological products, or biological and drug
products; (3) a drug, device, or biological product packaged separately
that, according to its investigational plan or proposed labeling, is
intended for use only with an approved individually specified drug,
device, or biological product where both are required to achieve the
intended use, indication, or effect and where upon approval of the
proposed product the labeling of the approved product would need to be
changed, e.g., to reflect a change in intended use, dosage form,
strength, route of administration, or significant change in dose; or
(4) any investigational drug, device, or
[[Page 49849]]
biological product packaged separately that, according to its proposed
labeling, is for use only with another individually specified
investigational drug, device, or biological product where both are
required to achieve the intended use, indication, or effect.
Section 503(g) of the Federal Food, Drug, and Cosmetic Act (the
act) (21 U.S.C. 353(g)) requires that FDA assign a component of the
agency to have primary jurisdiction for the regulation of a combination
product. That assignment must be based upon a determination of the PMOA
of the combination product. For example, if the primary mode of action
of a combination product is that of a biological product, the product
is to be assigned to the FDA component responsible for the premarket
review of that biological product. FDA issued a final rule in 1991
establishing the procedures (the ``request for designation'' (RFD)
process) for determining the assignment of combination products under
part 3.
The Medical Device User Fee and Modernization Act of 2002 (MDUFMA)
further modified section 503(g) of the act to require the establishment
of an Office (Office of Combination Products) within the Office of the
Commissioner. The purpose of the Office of Combination Products is to
ensure the prompt assignment of combination products to agency
components, the timely and effective premarket review of such products,
and consistent and appropriate postmarket regulation of combination
products. MDUFMA also requires the agency to review each agreement,
guidance, or practice specific to the assignment of combination
products to agency components, consult with stakeholders and the
directors of the agency centers, and determine whether to continue in
effect, modify, revise, or eliminate such agreements, guidances, or
practices.
Currently, Sec. 3.7 requires a sponsor submitting a request for
designation to identify the PMOA of the combination product and
recommend a lead agency component for its regulation. The PMOA of a
combination product, however, is not defined in the statute or
regulations, and at times may be difficult to identify. Requests for
assignment of combination products are usually submitted very early in
a product's development. This practice is encouraged because it allows
sponsors to begin working with an agency component as early in the
development process as possible. For some products, though, the PMOA of
the product is not readily apparent, to either FDA or the product
sponsor, at the time the request for assignment is submitted.
Determining the PMOA of a combination product is also complicated for
products that have two completely different modes of action, neither of
which is subordinate to the other. In close cases, assignments may turn
on subtle distinctions related to the determination of whether a mode
of action is ``primary,'' or not. The assignment process may appear to
be unpredictable when two slightly different products are assigned to
different agency components based on differences in their PMOAs.
To address these concerns, to simplify the designation process for
sponsors, and to enhance the transparency, predictability, and
consistency of the agency's assignment of combination products, FDA is
issuing this final rule to define ``mode of action'' and ``primary mode
of action.'' This final rule will clarify and codify principles the
agency has generally used since section 503(g) of the act was enacted
in 1990.
II. Description of the Final Rule
A. Introduction
FDA is finalizing its proposal to amend its combination product
regulations to create new definitions in Sec. 3.2 of ``mode of
action'' and ``primary mode of action.'' This final rule also sets
forth a two-tiered assignment algorithm in Sec. 3.4, which the agency
will use to determine assignment when it cannot determine with
reasonable certainty which mode of action of a combination product
provides the most important therapeutic action of the product. Finally,
the rule will require that sponsors base their recommendation of which
agency component should have primary jurisdiction for regulatory
oversight of its product on the PMOA definition and, if appropriate,
the assignment algorithm.
This final rule will fulfill the statutory requirement to assign
products based on their PMOA, and will use safety and effectiveness
issues, as well as consistency with the regulation of similar products,
to guide the assignment of products when the agency cannot determine
with reasonable certainty which mode of action provides the most
important therapeutic action of the combination product. It ensures
that like products would be similarly assigned, and it allows new
products for which the most important therapeutic action cannot be
determined with reasonable certainty to be assigned to the most
appropriate agency component based on the most significant safety and
effectiveness issues they present. In addition, by providing a more
defined framework for the assignment process, a codified definition of
PMOA will further MDUFMA's requirement that the agency ensure prompt
assignment of combination products. Also, by issuing this final rule,
the agency adheres to MDUFMA's requirement that it review practices
specific to the assignment of combination products, consult with
stakeholders and center directors, and make a determination whether to
modify those practices.
Not only will this final rule fulfill the objectives set forth in
the preceding paragraph, it will do so in a way that remains consistent
with agency practice regarding the assignment of combination products.
This rulemaking will codify criteria the agency has generally used
since 1990. The final rule will apply to RFD submissions received by
the agency on or after its effective date.
B. Stakeholder Input Prior to Proposed Rulemaking
Before issuance of the proposed rule, FDA held public hearings on
May 15, 2002, and on November 25, 2002, and a public workshop on July
8, 2003, to discuss various issues pertaining to combination products,
including the assignment of products to an agency component for
regulatory oversight. Stakeholders also provided a number of written
comments to the dockets for these meetings, which FDA opened to further
facilitate the discussion of PMOA issues. The agency received many
thoughtful comments from the stakeholders who participated in those
discussions, as well as from stakeholders who submitted written
comments to the docket, including some pertaining to a definition of
PMOA as well as others regarding the criteria for the assignment
algorithm if PMOA could not be determined. The November 2002 meeting in
particular addressed questions regarding assignment. Some questions
raised at the meeting were:
What factors should FDA consider in determining the PMOA
of a combination product?
In instances where the PMOA of the combination product
cannot be determined with certainty, what other factors should the
agency consider in assigning primary jurisdiction?
Is there a hierarchy among these additional factors that
should be considered in order to ensure adequate review and regulation
(e.g., which component presents greater safety questions?)
Several common themes emerged from these comments regarding the
definition of PMOA. For instance, many stakeholders felt that the
agency should
[[Page 49850]]
base any proposed definition of PMOA on the combination product as a
whole. FDA agrees, and has crafted the definition so that PMOA is based
on the most important therapeutic action of the combination product as
a whole. Furthermore, as detailed in the section regarding the
assignment algorithm, the agency will consider the combination product
as a whole when the agency cannot determine with reasonable certainty
the most important therapeutic action of the product.
Another theme recurring in a number of comments concerned the
intended use of the product. Several stakeholders expressed their
desire that FDA construct a definition of PMOA around this concept. As
further described in this document, mode of action is defined as the
means by which a product achieves its intended therapeutic effect or
action. For over a decade, the agency has considered in its
determination of PMOA an assessment of the product's intended use, as
well as its effect on the diagnosis, cure, mitigation, treatment, or
prevention of disease, and its effect on the structure or function of
the body. The agency intends to continue this practice, and has
structured the PMOA definition to include consideration of the intended
use of a combination product.
As with the definition for PMOA, several common themes emerged from
the comments regarding possible criteria to be considered when the
product's most important therapeutic action cannot be determined with
reasonable certainty. For example, several stakeholders suggested that
the agency consider similarly situated products when assigning a
combination product to a lead agency component. We agree that both
precedent and expertise are important when assigning a combination
product to a particular agency component, and we have placed this
criterion first in the algorithm's decisionmaking hierarchy. Therefore,
if the agency cannot determine with reasonable certainty which mode of
action provides the most important therapeutic effect, the agency will
assign the combination product to the agency component that regulates
combination products that present similar safety and effectiveness
questions for the product as a whole.
Another factor many stakeholders asked the agency to consider when
developing an assignment algorithm relates to the relative risks of a
particular combination product. We agree that this is an important
consideration, and take that into account with the second criterion,
which considers the most significant questions of safety and
effectiveness presented by a combination product. Therefore, if the
agency cannot determine the most important therapeutic action of a
combination product, and there is no agency component that regulates
combination products that as a whole present similar safety and
effectiveness questions as the combination product at issue, the agency
will assign the product to the agency component with the most expertise
related to the most significant questions of safety and effectiveness
of the product. In situations where the new product is the first such
combination product, or where another combination product exists but
the intended use, design, formulation, etc. for this combination
product raise different safety and effectiveness questions, FDA will
assign the product to the agency component with the most expertise to
evaluate the most significant safety and effectiveness issues raised by
the product.
C. What are ``Mode of Action'' and ``Primary Mode of Action?''
1. Definitions
a. Mode of action is defined as ``the means by which a product
achieves its intended therapeutic effect or action. For purposes of
this definition, `therapeutic' action or effect includes any effect or
action of the combination product intended to diagnose, cure, mitigate,
treat, or prevent disease, or affect the structure or any function of
the body.'' Products may have a drug, biological product, or device
mode of action. Because combination products are comprised of more than
one type of regulated article (biological product, device, or drug),
and each constituent part contributes a biological product, device, or
drug mode of action, combination products will typically have more than
one mode of action.
A constituent part has a biological product mode of action
if it acts by means of a virus, therapeutic serum, toxin, antitoxin,
vaccine, blood, blood component or derivative, allergenic product, or
analogous product applicable to the prevention, treatment, or cure of a
disease or condition of human beings, as described in section 351(i) of
the Public Health Service Act.
A constituent part has a device mode of action if it meets
the definition of device contained in section 201(h)(1) to (h)(3) of
the act, it does not have a biological product mode of action, and it
does not achieve its primary intended purposes through chemical action
within or on the body of man or other animals and is not dependent upon
being metabolized for the achievement of its primary intended purposes.
A constituent part has a drug mode of action if it meets
the definition of drug contained in section 201(g)(1) of the act and it
does not have a biological product or device mode of action.
b. Primary mode of action is defined as ``the single mode of action
of a combination product that provides the most important therapeutic
action of the combination product. The most important therapeutic
action is the mode of action that is expected to make the greatest
contribution to the overall intended therapeutic effects of the
combination product.'' As with ``mode of action,'' for purposes of
PMOA, ``therapeutic'' effect or action includes any effect or action of
the combination product intended to diagnose, cure, mitigate, treat, or
prevent disease, or affect the structure or any function of the body.
2. Assignment Algorithm
In certain cases, it is not possible for either FDA or the product
sponsor to determine, at the time a request is submitted, which mode of
action of a combination product provides the most important therapeutic
action. Determining the PMOA of a combination product is also
complicated for products where the product has two completely different
modes of action, neither of which is subordinate to the other. To
assign such products with as much consistency, predictability, and
transparency as possible, the agency is issuing an algorithm to
determine PMOA in those instances, to be codified at Sec. 3.4(b). In
those cases, the agency will assign the combination product to the
agency component that regulates other combination products that present
similar questions of safety and effectiveness with regard to the
combination product as a whole. When there are no other combination
products that present similar questions of safety and effectiveness
with regard to the combination product as a whole (e.g., it is the
first such combination product, or differences in its intended use,
design, formulation, etc. present different safety and effectiveness
questions), the agency would assign the combination product to the
agency component with the most expertise to evaluate the most
significant safety and effectiveness questions presented by the
combination product.
[[Page 49851]]
III. Comments on the Proposed Rule and FDA's Responses
A. Background
FDA received comments from 17 stakeholders on the proposal, and
almost all comments supported the rule in whole or in part. For
example, one comment said that ``[o]verall* * * FDA's approach to
primary mode of action faithfully implements the statute'' and that ``*
* * FDA did a remarkable job in listening to the comments on mode of
action and primary mode of action expressed by stakeholders in prior
hearings.'' Another comment ``agree[d] with FDA's proposed definition
of primary mode of action'' and ``praise[d] FDA for the simplicity and
consistency of the proposed assignment algorithm.''
A few general themes emerged from the comments. Though generally
supportive, the comments asked that FDA provide the following
clarification: (1) Clarification of the role of precedent in
determining a combination product's PMOA; (2) clarification of the role
of intended use in determining a combination product's PMOA; (3)
clarification of the status of the Intercenter Agreements established
in 1991 and their role in determining a product's PMOA; and (4) more
examples to show how the PMOA definition might be applied to assign an
agency component with primary jurisdiction for regulatory oversight of
a combination product.
After reviewing the comments, FDA made two changes to the codified
portion of this rule. The differences between the language in the
proposed and final rules are set forth in italics as follows:
------------------------------------------------------------------------
PMOA PROPOSED RULE PMOA FINAL RULE
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3.2 (k) Mode of action is the means 3.2 (k) Mode of action is the means
by which a product achieves a by which a product achieves its
therapeutic effect. intended therapeutic effect or
action.
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3.2(m) Primary mode of action is 3.2(m) Primary mode of action is
the single mode of action of a the single mode of action of a
combination product that provides combination product that provides
the most important therapeutic the most important therapeutic
action of the combination product. action of the combination product.
The most important therapeutic The most important therapeutic
action is the mode of action action is the mode of action
expected to make the greatest expected to make the greatest
contribution to the overall contribution to the overall
therapeutic effects of the intended therapeutic effects of
combination product. the combination product.
------------------------------------------------------------------------
The agency has included ``intended therapeutic effect'' in the MOA
definition and ``overall intended therapeutic effects'' in the PMOA
definition. FDA made these changes because the ``intended'' therapeutic
effect is a basic premise upon which the PMOA analysis is prefaced.
B. MOA, PMOA, and the Assignment Algorithm
1. MOA Definition
(Comment 1) Two comments stated that the definitions of drug,
device, and biological product MOAs meant that any product with a
biological product component could never be a drug or a device. One
comment was concerned that this definition will cause certain cellular
and tissue-based combination products to be regulated as biological
products, or impact the classification of single entity products. One
comment stated that products relying on cell or gene therapy would not
have a biological product MOA based on the definition provided.
(Response) ``Drug,'' ``device,'' and ``biological product'' are
defined by statute, and in defining MOA, FDA implemented those
statutory definitions. The statute defines biological products based on
their composition rather than their effects or mechanisms of action.
FDA adhered to the definition of each article as set forth in the
statutes, while focusing on the factors that the statutes identify as
distinct for biological products, devices, and drugs. We followed this
rationale because a biological product will also meet the statutory
definition of drug or device, and a device will also meet the statutory
definition of drug. Without mutually exclusive definitions of MOA,
based on the unique characteristics of biological products and devices,
it would be difficult to identify with certainty anything but a drug
mode of action, since the statutory definition of drug is the broadest
definition of the three. See, for example, 21 U.S.C. 321(g)(1)(C) (drug
means articles other than food intended to affect the structure or any
function of the body).
Additionally, it is important to keep in mind that this
construction is used only to determine a product's various modes of
action to be considered in determining the PMOA. This construction does
not necessarily determine how products will be regulated or the
appropriate type of application for a combination product's review.
Finally, we note that cell and gene therapy components typically
have a biological product MOA. For example, certain cell and gene
therapy components meet the definition of an ``analogous'' product
applicable to the prevention, treatment, or cure of a disease or
condition of human beings, as described in section 351(i) of the PHS
Act.
(Comment 2) One comment stated that FDA should clarify that the
definition of MOA relates only to the definition of each individual
component. The comment also provided alternative definitions for device
MOA, drug MOA, and biological product MOA.
(Response) FDA agrees and clarifies that the definition of MOA
relates only to the definitional status of each individual component.
In addition, the comment suggested in part that FDA change ``mode of
action'' to take into account a constituent part's ```intended'
therapeutic * * * effect * * *.'' Because intended use is a basic tenet
upon which the PMOA determination is premised, we agree, and have
revised that definition accordingly. Another suggestion was that we
change the word ``action'' to ``function'' in both the definition of
MOA and PMOA. We have addressed that suggestion in the PMOA definition
section. We have also addressed our rationale for the development of
the definitions of device MOA, drug MOA, and biological product MOA in
the response to comment 1 of this document.
(Comment 3) One comment stated that the proposed rule's definition
of mode of action ``almost pre-supposes that a constituent part itself
may be a combination of items,'' and ``a constituent part cannot itself
be a combination product.''
(Response) FDA agrees and here clarifies that constituent parts are
components and not, in themselves, combination products.
[[Page 49852]]
(Comment 4) One comment stated that the definition of MOA of
constituent parts should take into account the intended use of a
combination product as a whole, and should not strictly rely on
statutory definitions.
(Response) FDA agrees that the intended use of a combination
product is an important factor in the PMOA analysis. Therefore, we have
changed the codified definition of MOA to take into account a
constituent part's intended therapeutic effect or action. The MOA
definition is subsumed into the PMOA definition, where we take into
account the combination product as a whole: ``The most important
therapeutic action is the mode of action expected to make the greatest
contribution to the overall intended therapeutic effects of the
combination product'' (emphasis added).
(Comment 5) One comment stated that the statutory definitions of
drug, device, and biological product should be updated to take into
account emerging product technologies.
(Response) Revisions of the statutory definitions of drug, device,
and biological product would require congressional action and are
outside the scope of this rule.
(Comment 6) One comment stated that the language used to define
device mode of action was inconsistent with the language defining drug
mode of action.
(Response) FDA has reviewed the definitions, and disagrees. The
agency believes that the language in the definitions clearly and
consistently defines biological product, device, and drug modes of
action for the purposes of part 3.
2. PMOA Definition
(Comment 7) One comment suggested that FDA change the word
``action'' in the MOA and PMOA definitions to ``function.'' The comment
also suggested that the term ``therapeutic'' as in ``therapeutic
action'' is more commonly used in connection with drugs and biological
products. Consequently, the comment stated, use of the term
``therapeutic action'' might skew jurisdictional decisions away from
devices and toward drugs and biological products.
(Response) FDA declines to make that change because we believe
``action'' is a more appropriate term than ``function'' as it pertains
to the MOA and PMOA definitions. The term ``action'' is intrinsic to
``primary mode of action'' and the term is therefore most closely tied
to the statute.
Moreover, FDA stated in the May 2004 PMOA proposed rule that, for
purposes of both the MOA and PMOA definitions, ``therapeutic'' effect
or action ``includes any effect or action of the combination product
intended to diagnose, cure, mitigate, treat, or prevent disease, or
affect the structure or any function of the body.'' The term
``therapeutic,'' therefore, encompasses the actions or effects of
drugs, biological products, and devices. As a result, the use of the
term ``therapeutic action'' in the MOA and PMOA definitions will not
cause jurisdictional determinations to be skewed toward drugs and
biological products and away from devices.
(Comment 8) Two comments requested that FDA explain how it will
determine the most important therapeutic action of a combination
product.
(Response) As explained in new Sec. 3.2(m), the most important
therapeutic mode of action is the mode of action expected to make the
greatest contribution to the overall intended therapeutic effects of
the combination product. To make this determination, FDA would consider
the intended use of the combination product as a whole, and how it
achieves its overall intended therapeutic effect. Though not an
exhaustive list (because each combination product presents different
questions about its scientific characteristics and use), some other
factors FDA would consider in determining a combination product's most
important therapeutic action include: The intended therapeutic effect
of each constituent part, the duration of the contribution of each
constituent part toward the therapeutic effect of the product as a
whole, and any data or information provided by the applicant or
available in scientific literature that describe the mode of action
expected to make the greatest contribution to the overall intended
therapeutic effects of the combination product.
(Comment 9) One comment requested that FDA clarify the meaning of
``reasonable certainty.'' Another comment expressed concern that the
standard was subject to abuse.
(Response) In general, it would be possible to determine the PMOA
of a combination product with ``reasonable certainty'' when the PMOA is
not in doubt among knowledgeable experts, and can be resolved to an
acceptable level in the minds of those experts based on the data and
information available to FDA at the time an assignment is made. FDA
believes that this standard provides adequate specificity and that it
will be applied appropriately, not arbitrarily.
(Comment 10) Two comments stated that the PMOA definition should
include the intended use of the product as a whole. In addition, one
comment stated that, assuming we include intended use of the product as
a whole and are guided by precedents, the use of the ``reasonable
certainty'' standard is acceptable.
(Response) As stated in the proposal, FDA reviewed the vast
majority of our prior jurisdictional determinations and found that
those assignments would not have changed based on the definition of
PMOA finalized here. The definition set forth here is intended to
clarify and codify the principles that FDA has used since 1990 in
making jurisdictional assignments. FDA agrees that intended use plays
an important role in the PMOA analysis. Consequently, the revised
definition of MOA will read: ``Mode of action is the means by which a
product achieves its intended therapeutic effect or action.'' The MOA
definition is subsumed into the PMOA definition, where we take into
account the combination product as a whole. Furthermore, we have
revised the PMOA definition to include intended use as well: ``The most
important therapeutic action is the mode of action expected to make the
greatest contribution to the overall intended therapeutic effects of
the combination product'' (emphasis added).
(Comment 11) One comment stated that the intended use of a product
should dictate its PMOA. In turn, PMOA should determine assignment of
the product to an agency component for review and regulation, as well
as the regulatory authorities to be applied. This comment also stated
that the algorithm should be used only when PMOA cannot be determined,
and if the algorithm is used to determine the jurisdiction of the
product, two applications and two separate approvals would be necessary
for its review.
(Response) As described previously in this document, FDA agrees
that intended use plays an integral role in the PMOA analysis, and we
have revised the MOA and PMOA definitions accordingly.
However, we do not require in this rule that PMOA dictates the
regulatory authorities to be applied to a combination product's review
and regulation. The application of regulatory authorities to a
combination product is outside the scope of this rule. The Safe Medical
Devices Act of 1990 (SMDA) established a rule determining which
``persons'' would be responsible for regulating combination products.
See 21
[[Page 49853]]
U.S.C. section 353(g)(1). This law addresses the agency component
responsible for regulating a combination product, but does not address
which authorities, including which application schemes, the persons
identified must use to regulate the combination product.
Under this SMDA provision, the agency would decide the following:
(1) Whether to recommend that a single application for the combination
product be used, and if so, what kind of application should be used new
drug application (NDA), abbreviated new drug application (ANDA),
biologics license application (BLA), 510(k), or premarket approval
application (PMA); or (2) whether to require more than one application;
for example, a BLA for the biological product component, and a PMA for
the device component of a combination product. (See 21 CFR 3.4(b)
(``The designation of one agency component as having primary
jurisdiction for the premarket review and regulation of a combination
product does not preclude consultations by that component with other
agency components or, in appropriate cases, the requirement by FDA of
separate applications.''))
It also appears that the comment presupposes that FDA would not
identify a PMOA if there are two independent modes of action. FDA
disagrees. A combination product may have two independent modes of
action, yet FDA still may be able to determine the product's most
important therapeutic action with reasonable certainty. However, FDA's
experience in evaluating combination products has shown that for a
small subset of products, the most important therapeutic action is not
determinable with reasonable certainty. Therefore, FDA needs a
mechanism to ensure that these types of products are assigned with
consistency, transparency, and predictability. Out of necessity and
with the authority granted to the agency by Congress, FDA established
the algorithm to accomplish these goals. Once an assignment is made
under the algorithm, FDA will decide the number (one or more), and
type, of applications that are necessary.
(Comment 12) One comment asked that FDA clarify whether PMOA
determined designation only, or whether it also determined the
controlling regulatory authorities and the degree of collaboration
between Centers.
(Response) As stated in the response to Comment 11 of this
document, FDA here clarifies that PMOA is determinative of assignment
only.
3. Assignment Algorithm
a. First criterion.
(Comment 13) One comment suggested that we clarify that the term
``direct experience,'' as set forth in the proposed rule's explanation
of the algorithm, is not part of the analysis at the first tier of the
algorithm.
(Response) The term ``direct experience'' is not part of the
codified language used to describe the first tier of the algorithm to
be used when the agency is unable to determine the PMOA with reasonable
certainty. FDA here clarifies that its use of the term ``direct
experience'' in the proposed rule's explanation of the algorithm was
simply a reference to the first criterion of the algorithm, which
states that the agency will assign a combination product to the agency
component that regulates other combination products that present
similar questions of safety and effectiveness with regard to the
combination product as a whole.
(Comment 14) One comment asked how FDA will determine whether a
product presents similar safety and effectiveness questions.
(Response) FDA will consider products the agency has already
reviewed as well as products that are currently under review to
determine whether a product presents similar safety and effectiveness
questions. Though the examples are not intended to be exhaustive, FDA
includes in the response to Comment 16 of this document the types of
questions that FDA may consider, as appropriate, when making the
determination of whether a combination product presents questions of
safety and effectiveness that are similar to questions presented by
other combination products.
b. Second criterion.
(Comment 15) One comment suggested that our use of the term
``expertise'' might cause divisiveness within FDA and industry. The
comment recommended that the focus be on safety and effectiveness
issues rather than ``expertise.'' In considering the most significant
safety and effectiveness questions, the comment recommended that FDA
make these judgments on a case-by-case basis.
(Response) FDA agrees that the focus here should be on the most
significant safety and effectiveness issues presented by a combination
product. Use of the term ``expertise'' is not meant to be divisive or
imply a value judgment. Instead, the ``expertise'' criterion at this
level is used merely as the most appropriate means to direct the
assignment of a combination product based on the most significant
safety and effectiveness issues it presents when no agency component
has direct experience in the review of the product as a whole. FDA also
agrees with the comment that significant safety and effectiveness
issues should be considered on a case-by-case basis. As with
jurisdictional determinations made prior to the issuance of this rule,
FDA intends to make assignments by considering the unique issues raised
by each individual combination product.
(Comment 16) Three comments asked that FDA explain how it would
determine the most significant safety and effectiveness issues
presented by the product. One comment suggested that the preamble to
the proposal implied that FDA intended to base these determinations
primarily on an assessment of the product's ``relative risks.'' Another
comment asked that FDA issue a guidance document to clarify the
agency's determination of the most significant safety and effectiveness
issues.
(Response) FDA agrees that risk is not always the driving factor in
determining appropriate jurisdiction; rather it is one factor that the
agency may consider.
The questions listed in this response to comment 16 of this
document are intended to further illustrate the kinds of issues FDA
would consider when determining the most significant safety and
effectiveness questions presented by a combination product, or whether
a new combination product presents similar safety and effectiveness
issues as a previous product. We note that the list of factors is not
all-inclusive. FDA considers its ability to continue to assess the
individual characteristics of particular products to be essential. This
will allow the agency to respond to technological developments,
scientific understanding, factual information concerning a specific
product, or the composition, mechanism of action or intended use of a
particular product. As described previously in this document, the need
to consider appropriate issues on a case-by-case basis was supported by
some of the comments. The questions are not listed in order of
importance; indeed some factors may be weighted more than others
depending on various issues presented by each individual combination
product.
What is the intended use of the product?
What is the therapeutic effect of the product as a whole?
Does the device component incorporate a novel or complex
design or have the potential for clinically significant failure modes?
Is this a new molecular entity or new formulation?
[[Page 49854]]
Has the drug previously been approved as a generic drug?
Does the drug have a narrow therapeutic index?
Is the biological product component a particularly fragile
molecule?
How well understood are the product's components? Is one
component relatively routine, while the other presents more significant
safety and effectiveness issues due to the risks it poses, its
effectiveness, or novelty?
Which component raises greater risks?
Has either of the components been previously approved or
cleared?
Is there a new indication, route of administration or a
significant change in dose or use of one of the components, or are only
secondary aspects of the labeling affected?
FDA is not issuing a guidance document on this topic at this time.
However, FDA will take the suggestion under advisement, and will
reconsider issuance of such guidance if it becomes apparent after
implementation of the final rule that more clarification is needed.
(Comment 17) One comment recommended that FDA consider the ``least
burdensome'' requirements of the device provisions of the act, as well
as the ``Improving Innovation in Medical Technology'' and ``Critical
Path to New Medical Products'' initiatives, which are specifically
intended to advance innovation of new medical technologies by, among
other things, use of a variety of premarket resources and tools (e.g.,
early collaboration meetings, 100-day meetings, modular reviews, etc.).
(Response) As stated in the response to Comments 11 and 12 of this
document, assignment only directs a product to an agency component, and
does not dictate the regulatory authorities that will be used.
4. Miscellaneous Algorithm Questions
(Comment 18) One comment suggested that FDA add the sponsor's
recommendation of assignment to the algorithm.
(Response) FDA agrees that the sponsor's recommendation of
jurisdictional assignment plays a significant role in the process of
making jurisdictional determinations. Indeed, the sponsor's
recommendation of assignment is a required element of an RFD under
Sec. 3.7(c)(3). FDA takes into account the information provided by the
sponsor as well as the sponsor's recommendation of jurisdictional
assignment not only when it is necessary to use the algorithm, but also
when FDA initially decides whether the PMOA of a product can be
determined with reasonable certainty. We note, too, that if FDA fails
to make a jurisdictional determination within 60 days, the combination
product would then automatically be assigned to the agency component
recommended by the sponsor. FDA believes that the final codified
language, together with the regulations currently in place, adequately
takes into account a sponsor's recommendation of jurisdictional
assignment of its combination product.
5. Flow Chart
(Comment 19) Two comments suggested that FDA include the flow chart
in a guidance rather than the final rule.
(Response) FDA has not included the flow chart in the codified
section of the final rule. However, we believe that the flow chart is a
useful tool to illustrate how the PMOA process works; therefore, we
included it in the preamble of the proposed rule merely for its
instructional use.
(Comment 20) One comment suggested that FDA replace the reference
in the flow chart to ``an agency component with responsibility for that
type of device'' by the ``agency component with responsibility for
devices'' to ensure that CDRH has primary jurisdiction.
(Response) FDA included the phrasing as written because it
encompasses the subsets of drugs and devices regulated by the Center
for Biologics Evaluation and Research (CBER) and biological products
regulated by the Center for Drug Evaluation and Research (CDER). While
most devices are regulated by the Center for Devices and Radiological
Health (CDRH), certain devices, such as those related to blood
collection and processing, have long been regulated by CBER, and while
most biological products are regulated by CBER, certain therapeutic
biological products are now regulated by CDER. A drug-device
combination product with a device PMOA, where the device is regulated
by CBER, would be assigned to CBER. Similarly, a biological product-
device combination product with a biological product PMOA, where the
biological product is regulated by CDER, would be assigned to CDER.
C. Status of Intercenter Agreements
(Comment 21) Several comments asked that FDA confirm that the
Intercenter Agreements (ICAs) remain viable in helping FDA determine
the appropriate agency component for premarket review and regulation of
products, or update the Agreements to encompass types of combination
products developed after the Agreements were written in 1991.
(Response) FDA confirms that the ICAs referenced at Sec. 3.5(a)(1)
continue to provide helpful guidance related to product jurisdiction,
including the assignment of some types of combination products. The
ICAs were developed following the enactment of the PMOA criterion used
to make assignments of combination products. Consequently, PMOA
principles were used in the ICAs' development. For example, the ICA
between CDER and CDRH assigns to CDRH products such as a ``device
incorporating a drug component with the combination product having the
primary intended purpose of fulfilling a device function.'' The premise
underlying the assignment to CDRH is that the device component of such
a product provides the most important therapeutic action of the
product. The CDER-CDRH ICA assigns to CDER prefilled delivery systems,
such as a ``device with primary purpose of delivering or aiding in the
delivery of a drug and distributed containing a drug.'' The premise of
this assignment to CDER is that the device's primary purpose in
delivering or aiding in the delivery of a drug is subordinate to the
most important therapeutic action provided by the drug product.
Similarly, the ICA between CBER and CDER assigned to CDER ``combination
products that consist of a biological component and a drug component
where the biological component enhances the efficacy or ameliorates the
toxicity of the drug product.'' The premise underlying this assignment
is that the drug product provides the most important therapeutic action
of the product, while the biological product has a subordinate role in
enhancing such action. These principles are preserved by the definition
described in this rule.
Nonetheless, the Intercenter Agreements were developed in 1991 and
do not address many types of combination products developed since that
time. Furthermore, we note that, although the ICAs were developed
before the regulations governing good guidance practices, the
Agreements constitute guidance, which is not binding. See 21 CFR
10.115(d)(1). Moreover, the ICAs describe sometimes broad categories of
products, and because PMOA might vary depending on a combination
product's specific characteristics and use, the ICA recommendations may
not be appropriate for every single product within a broad category.
FDA is actively considering whether to continue in
[[Page 49855]]
effect, modify, revise, or eliminate the ICAs and plans in the near
future to further clarify the role of the ICAs in light of other
available information, such as this rule and more recent jurisdictional
information made available on the Office of Combination Products
(OCP's) Internet site. FDA believes the issuance of this final rule
will help clarify jurisdiction for combination products generally.
D. Role of Precedents
(Comment 22) Several comments asked that FDA clarify the role of
precedent in the jurisdictional determination of a combination product.
(Response) FDA believes that precedent plays a very important role
in determining the assignment of a combination product. First, the
definition of PMOA finalized here is based on past practice and will
preserve precedent. FDA has long considered a product's most important
therapeutic action in determining the primary mode of action of a
combination product and the concept of ``most important therapeutic
action'' also underlies the assignments of combination products
outlined in the Intercenter Agreements. In addition, the role of
precedent is encompassed in the first criterion of the assignment
algorithm, for use when the agency cannot determine a combination
product's PMOA with reasonable certainty. That criterion directs FDA to
assign a combination product to the agency component that regulates
other combination products that present similar safety and
effectiveness questions with regard to the product as a whole.
E. Application of Regulatory Authorities in the Review of Combination
Products
(Comment 23) A few stakeholders asked FDA to clarify which good
manufacturing practices and adverse event reporting authorities would
apply to the regulation of a combination product. Other comments asked
whether single or separate marketing applications would be appropriate
for certain types of combination products, and how user fees are
handled for combination products.
(Response) As explained previously in this document, this final
rule applies only to the jurisdictional assignment of combination
products to an agency component for review and regulatory oversight.
The specific regulatory authorities to be applied to a combination
product are outside the scope of this rule.
F. Review of Specific Types of Products
(Comment 24) One comment requested that FDA clarify how the rule
affects general-purpose drug delivery devices. Another comment asked
FDA to clarify the applicability of a particular principle described in
the CDER-CDRH ICA related to unfilled drug delivery devices. The
pertinent section of that ICA states that a device with the primary
purpose of delivering or aiding in the delivery of a drug that is
distributed without a drug (i.e., unfilled), where the drug and device
would be developed and used together as a system, would be assigned to
a lead Center after considering whether the drug or device had been
previously approved and the dominance of the drug or device issues. A
third comment asked for clarification that delivery devices that are
distributed unfilled and determined not to require conforming changes
to drug labeling are devices. For instance, the comment asked for
clarification of the regulatory status of closed loop insulin delivery
systems and catheters to deliver clot-busting drugs, which also act
physically to dissolve the clot.
(Response) In order to be a combination product, a product must
meet one of the definitions found in Sec. 3.2(e). By their general
nature, unfilled, general-purpose drug delivery devices typically do
not meet the definition of a combination product because they are not
physically combined or packaged with, or tied by labeling to a
particular drug, so such products are regulated as devices. The
specific types of products mentioned in comment 24 of this document
could be single-entity devices as long as they are provided without the
drugs, and the labeling of the drugs does not need to change to reflect
their use. The assignment of delivery devices that are not combination
products as defined by Sec. 3.2(e) is outside the scope of this rule.
(Comment 25) One comment asked FDA to clarify how several variables
would impact PMOA. These questions were as follows: What if the drug
component is an old, generic, off-patent drug? What if the mode of
administration and dosage of the drug are changed only slightly? What
if the drug indication remains the same? What if only secondary aspects
of drug labeling (e.g., precautions, instructions for use) change?
(Response) These questions would not affect the determination of
PMOA (i.e., the most important therapeutic action of a combination
product), but they are factors FDA would consider, as appropriate, at
the second tier of the algorithm, when FDA assesses the most
significant safety and effectiveness questions presented by the
combination product.
(Comment 26) One comment stated that, without additional
clarification of the role of precedents, the PMOA analysis as applied
to pharmacogenomic drug/diagnostic device products might lead to
uncertain results. The comment also identified a number of products and
suggested that they would not be considered under the PMOA rule as
precedents because historically they have not been designated as
combination products. In addition, the comment expressed concern that
after this rule's enactment, the device component of these types of
products would no longer be reviewed separately by CDRH, as
historically has been the case.
(Response) FDA has clarified the role of precedents earlier in this
section of the document. With regard to the application of the PMOA
analysis to pharmacogenomic drug/diagnostic device products, the
comment is correct in noting that not all such products are combination
products, and when they are not, the drug and device would be regulated
as separate entities.
(Comment 27) One comment asked that OCP continue its role in the
regulatory oversight of drug/biological product combinations, even when
CDER has regulatory responsibility for both the drug and biological
product components.
(Response) A drug-biological product remains a combination product
even if both components are reviewed by the same Center. FDA agrees
that OCP continues to have oversight responsibility, consistent with 21
USC 353(g)(4) and the regulations set forth in 21 CFR Part 3, for drug/
biological product combination products even when both the drug and
biological product components are regulated by CDER. FDA's
jurisdictional update on drug-biological product combination products,
available at http://www.fda.gov/oc/combination/biologic.html, provides
more information.
(Comment 28) One comment asked that over-the-counter (OTC) drug and
dietary supplement combinations be classified as combination products.
(Response) Under 21 U.S.C. 353(g) and 21 CFR part 3, a combination
product is a product comprised of any combination of a drug and a
device; a device and a biological product; a biological product and a
drug; or a drug, a device, and a biological product. Classification of
OTC drug and dietary
[[Page 49856]]
supplement combinations is outside the scope of this rule.
(Comment 29) One comment asked that FDA clarify whether tissue-
engineered products, such as human-derived fibroblasts cultured in
vitro on a synthetic scaffold, are considered to be combination
products.
(Response) While classification of particular products is outside
the scope of this rule, we note that many tissue engineered products,
such as the product described in comment 29 of this document, are
comprised of biological product and device components, and therefore
meet the definition of a combination product as defined in Sec.
3.2(e).
(Comment 30) One comment asked FDA to note that the review
timelines of combination products would be consistent with the
performance goals of the primary review Center. Another comment asked
FDA to address the review timelines for a combination product in which
the agency has required that the sponsor submit separate marketing
applications.
(Response) Review timelines are outside the scope of this rule. We
note that review timeframes are associated with the type of marketing
application, rather than the reviewing Center. Further information on
these issues, as well as other information regarding the timeliness of
reviews, is discussed in FDA's guidance document on dispute resolution
available at http://www.fda.gov/oc/combination/.
(Comment 31) One comment asked that FDA clarify how the agency
would evaluate new uses for a product using the PMOA analysis.
(Response) FDA is required by statute to assign a product to an
agency component for review based on its PMOA. Stakeholders have urged,
and FDA agrees, that determination of a product's PMOA should take into
account the product's intended use. Therefore, it is possible that a
single product, intended for two different purposes, may be assigned to
different agency components for review of those different uses if the
PMOA for each use directs the assignment to a different agency
component. However, FDA will strive to minimize the impact of these
assignments where possible.
(Comment 32) One comment was concerned that the PMOA definition
would direct all drug delivery devices combined with a drug product to
CDER. The comment mentioned a specific example of an approved drug
product in its approved container, with no change to the route of
administration, combined with an innovative delivery device.
Additionally, the comment stated that the same device combined with
different drug products may be assigned to different divisions within
CDER, which could result in confusing or conflicting requirements for
the release testing or labeling of the device.
(Response) As stated previously in this document, FDA is required
by statute to assign a product to an agency component for review based
on its PMOA. FDA has developed a Standard Operating Procedure (SOP) to
help ensure efficient and effective consultation and collaboration
between the Centers on such reviews. Such consultation and
collaboration will also help to ensure uniformity in approaches by the
review divisions. This review process is outlined in further detail in
the FDA SOP for Intercenter Consultative/Collaborative Review Process,
available at http://www.fda.gov/oc/ombudsman/intercentersop.pdf.
Examples
(Comment 33) Several comments asked that FDA provide more examples,
particularly examples illustrating how drug and biological product
combination products would be reviewed. One comment recommended that
FDA include examples of copackaged and cross-labeled combination
products.
(Response) FDA agrees, and we provide 11 hypothetical examples in
this section of the document, three of which were also provided in the
proposal. We note that the interferon/ribavirin combination product is
an example where the two components may be either copackaged or
separately provided but labeled to be used together; the same
assignment would result in either situation. In addition, we have
posted a list of selected capsular descriptions illustrating many prior
jurisdictional determinations, which is available on our website at
http://www.fda.gov/oc/combination/determinations.html. FDA believes
these descriptions also help to illustrate the jurisdictional
determination process.
(Comment 34) One comment listed a number of hypothetical products,
and asked that FDA explain how it would review and regulate them, so
that stakeholders would have a better understanding of the process FDA
uses when making assignments of combination products.
(Response) FDA notes that some of the comment's examples are not
combination products and, therefore, fall outside the scope of the
rule, while other examples lack sufficient detail for FDA to work
through as a hypothetical exercise. However, FDA used or adapted some
of the examples suggested and developed additional hypothetical
examples. FDA believes the examples provided in this response to
comment 34 of this document, along with the capsular descriptions of
prior jurisdictional determinations posted on OCP's website, and the
types of questions FDA considers when making assignments of combination
products, further illustrate the process FDA uses when making
assignments.
Examples Repeated From Proposed Rule
a. Conventional drug-eluting stent. A vascular stent provides a
mechanical scaffold to keep a vessel open while a drug is slowly
released from the stent to prevent the buildup of new tissue that would
reocclude the artery.
PMOA Analysis--Which mode of action provides the most
important therapeutic action of the combination product?
In this case, the product has two modes of action. One action of
the vascular stent is to provide a physical scaffold to be implanted in
a coronary artery to improve the resultant arterial luminal diameter
following angioplasty. Another action of the product is the drug
action, with the intended effect of reducing the incidence of
restenosis and the need for target lesion revascularization.
Assignment of Lead Agency Component: CDRH
The product's primary mode of action is attributable to the device
component's function of physically maintaining vessel lumen patency,
while the drug plays a secondary role in reducing restenosis caused by
the proliferative response to the stent implantation, augmenting the
safety and/or effectiveness of the uncoated stent. Accordingly, FDA
would assign the product to CDRH for regulation because the device
component provides the most important therapeutic action of the
product. It is unnecessary to proceed to the assignment algorithm
because it is possible to determine which mode of action provides the
most important therapeutic action of this particular combination
product.
b. Drug Eluting Disc. A surgically implanted disc contains a drug
that is slowly released for prolonged, local delivery of
chemotherapeutic agents to a tumor site.
PMOA Analysis--Which mode of action provides the most
important therapeutic action of the combination product?
In this case, the product has two modes of action. This product has
a device mode of action because it is surgically implanted in the body
and is
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designed for controlled drug release, thus affecting the structure of
the body and treating disease. Another mode of action is the drug
action, with the intended effect of preventing tumor recurrence at the
implant site.
Assignment of Lead Agency Component: CDER
Though the product has a device mode of action, the product's
primary mode of action is attributable to the drug component's function
of preventing tumor recurrence at the implant site. Accordingly, we
would assign the product to CDER for regulation because the drug
component provides the most important therapeutic action of the
product. It is unnecessary to proceed to the assignment algorithm
because it is possible to determine which mode of action provides the
most important therapeutic action of this particular product.
c. Contact Lens Combined With Drug to Treat Glaucoma. In this case,
a contact lens is placed in the eye to correct vision. The contact lens
also contains a drug to treat glaucoma that will be delivered from the
lens to the eye.
PMOA Analysis--Which mode of action provides the most
important therapeutic action of the combination product?
This product has two modes of action. One action of the product is
the device action, to correct vision. Another action of the product is
a drug action, to treat glaucoma. Though administration through a
contact lens is not necessary for the drug's delivery, the combination
product allows a patient requiring vision correction to receive
glaucoma treatment without having to undertake a more complicated daily
drug regimen. Here, both actions of the product are independent, and
neither appears to be subordinate to the other.
Because it is not possible to determine which mode of action
provides the greatest contribution to the overall therapeutic effects
of the combination product, it is necessary to apply the assignment
algorithm.
Assignment Algorithm:
Is there an agency component that regulates other
combination products that present similar questions of safety and
effectiveness with regard to the combination product as a whole?
CDRH regulates devices intended to correct vision. CDER regulates
drugs intended to treat glaucoma. In this hypothetical example, no
combination product intended to treat these different conditions
simultaneously has yet been submitted to the agency for review. Though
both CDER and CDRH regulate products that raise similar safety and
effectiveness questions with regard to the constituent parts of the
product, neither agency component regulates combination products that
present similar safety and effectiveness questions with regard to the
product as a whole.
Because there is no agency component that regulates products that
present similar safety and effectiveness questions with regard to the
product as a whole, it is necessary to apply the second criterion of
the algorithm.
Which agency component has the most expertise related to
the most significant safety and effectiveness questions presented by
the combination product?
Assignment of Lead Agency Component: CDER--
Because there is no agency component that regulates combination
products that present similar safety and effectiveness issues with
regard to the product as a whole, the agency would consider which
agency component has the most expertise related to the most significant
safety and effectiveness questions presented by the product. In this
hypothetical example, the most significant safety and effectiveness
questions are related to the characterization, manufacturing, and
clinical performance of the drug component, while the safety and
effectiveness questions raised by the vision-correcting contact lens
are considered more routine. It should also be noted that CDER has
expertise in the review of other drugs delivered using a contact lens.
Based on the application of this criterion, this product would be
assigned to CDER because CDER has the most expertise related to these
issues.
d. Contact Lens Combined With Drug to Treat Glaucoma. This product
is identical to the product described in example c. in all material
respects. The RFD was filed after the designation of the product in
example c. Since it is not possible to determine which mode of action
provides the greatest contribution to the overall therapeutic effects
of the combination product, we would apply the assignment algorithm.
This product would be assigned to CDER under the first criterion of the
assignment algorithm, since the product described in example c.
presents similar questions of safety and effectiveness with respect to
the combination product as a whole and is already assigned to CDER.
Additional Examples-These hypothetical examples further illustrate
the designation process.
e. Spinal fusion device coated with a therapeutic protein intended
to treat degenerative disc disease. A spinal fusion cage soaked in a
solution of a therapeutic protein to coat the inside surfaces of the
device. In this hypothetical example, the fusion cage, a permanent
implant, maintains the spacing and stabilizes the diseased region of
the spine, while the protein is used to encourage the formation of bone
within the fusion cage to further stabilize this portion of the spine
as well as the cage itself.
PMOA Analysis--Which Mode of Action Provides the Most
Important Therapeutic Action of the Combination Product?
In this case, the product has two modes of action. One action is
the device component's action to mechanically maintain the
intervertrebral spacing and stabilize the diseased region of the spine.
Another action is the therapeutic protein's action to encourage the
formation of bone within the fusion cage to further stabilize the cage
and this portion of the spine.
Assignment of Lead Agency Component: CDRH
The product's PMOA is attributable to the device component's action
to mechanically maintain the intervertebral spacing and stabilize the
diseased region of the spine, while the therapeutic protein's action to
encourage bone formation within and around the cage plays a secondary
role. In this hypothetical example, the therapeutic protein does not
have the mechanical properties necessary to maintain the spacing and
stabilize the spine if used alone. Furthermore, clinically successful
spinal fusion, i.e., pain reduction and stability of the spine, can be
achieved even in the absence of bone growth within the cage.
Accordingly, FDA would assign the product to CDRH for regulation
because the device component provides the most important therapeutic
action of the product. It is unnecessary to proceed to the assignment
algorithm because it is possible to determine which mode of action
provides the most important therapeutic action of this particular
combination product.
f. Chemotherapeutic drug and monoclonal antibody for targeted
cancer treatment. The monoclonal antibody is intended to improve the
drug's effectiveness by directly targeting the drug to receptors on
cancer tumor cells.
PMOA Analysis--Which Mode of Action Provides the Most
Important Therapeutic Action of the Combination Product?
In this hypothetical case, the product has two modes of action. One
action is the chemotherapeutic drug component's action to treat cancer.
Another action is the monoclonal antibody's (biological
[[Page 49858]]
product) action to target the drug to receptors on cancer tumor cells,
thereby delivering the drug directly to the tumor site.
Assignment of Lead Agency Component: CDER
The product's PMOA is attributable to the drug component's
cytotoxic action on cancer cells, while the biological product
component's action to target the drug to the receptors on the cancer
cells enhances the efficacy of the drug. Accordingly, FDA would assign
the product to CDER for regulation because the drug component provides
the most important therapeutic action of the product. It is unnecessary
to proceed to the assignment algorithm because it is possible to
determine which mode of action provides the most important therapeutic
action of this particular combination product. Note that in June 2003,
FDA transferred to CDER the regulation of certain therapeutic
biological products, including monoclonal antibodies, which had been
regulated by CBER. Although CDER now has regulatory responsibility over
both the chemotherapeutic drug and monoclonal antibody described in
this hypothetical example, this example is provided for illustrative
purposes. For further information about the drug and biological product
consolidation, see the Federal Register of June 26, 2003 (68 FR 38067),
and the OCP website at http://www.fda.gov/oc/combination/transfer.html.
g. Scaffold seeded with autologous cells for organ replacement. The
hypothetical product has the shape of the target organ, and the
autologous cells are intended to allow the product to ultimately
function like the target organ in the patient.
PMOA Analysis--Which Mode of Action Provides the Most Important
Therapeutic Action of the Combination Product?
In this case, the product has two modes of action. One action of
the product is the action of the biological product component to help
form new tissue that will ultimately function like the native organ.
Another action of the product is the device component's action to
provide a scaffold on which the new organ tissue will form.
Assignment of Lead Agency Component: CBER
The product's PMOA is attributable to the biological product
component's action to help form new organ tissue that will ultimately
function like the native organ. The device component's action to
provide a scaffold upon which the new tissue will form is secondary.
Though the scaffold is necessary to create the new tissue and provide
the necessary shape, the creation of a functioning organ is primarily
dependent upon the role of the cells to provide the tissue organization
and muscular layer needed to function like the native organ.
Accordingly, FDA would assign the product to CBER for regulation
because the biological product component provides the most important
therapeutic action of the product. It is unnecessary to proceed to the
assignment algorithm because it is possible to determine which mode of
action provides the most important therapeutic action of this
particular combination product.
h. Menstrual tampon impregnated with genetically modified bacteria.
The hypothetical product is intended for use throughout menstruation
both in the collection of menstrual fluid and to treat and/or prevent
recurrence of bacterial vaginosis.
PMOA Analysis--Which Mode of Action Provides the Most
Important Therapeutic Action of the Combination Product?
In this case, the product has two modes of action. One action of
the product is the action of the biological product component to act
upon the vaginal mucus membrane to produce antimicrobial factors that
will control opportunistic pathogens. Another action of the product,
like other menstrual tampons, is the device component's action to
collect menstrual fluid. Here, both actions of the product are
independent, and neither appears to be subordinate to the other.
Because it is not possible to determine which mode of action
provides the greatest contribution to the overall therapeutic effects
of the combination product, it is necessary to apply the assignment
algorithm.
Assignment Algorithm:
Is There an Agency Component That Regulates Other
Combination Products That Present Similar Questions of Safety and
Effectiveness With Regard to the Combination Product as a Whole?
CDRH regulates tampons; CBER regulates bacterial products and
genetically modified cells. In this hypothetical example, no
combination product intended both to collect menstrual fluid and to
treat and/or prevent recurrence of bacterial vaginosis through the
actions of a genetically modified organism has previously been reviewed
by the agency. Though both CDRH and CBER regulate products that raise
similar safety and effectiveness questions with regard to the
constituent parts of the product, neither agency component regulates
combination products that present similar safety and effectiveness
questions with regard to the product as a whole.
Because there is no agency component that regulates products that
present similar safety and effectiveness questions with regard to the
product as a whole, it is necessary to apply the second criterion of
the hierarchy.
Which Agency Component Has the Most Expertise Related to
the Most Significant Safety and Effectiveness Questions Presented by
the Combination Product?
Assignment of Lead Agency Component: CBER
Because there is no agency component that regulates combination
products that present similar safety and effectiveness issues with
regard to the product as a whole, the agency would consider which
agency component has the most expertise related to the most significant
safety and effectiveness questions presented by the product. In this
case, the menstrual tampon component presents generally routine safety
and effectiveness questions, similar to those of other menstrual
tampons. In contrast, the biological product component raises more
significant safety and effectiveness questions, such as those related
to bacterial strain selection and dose; bacterial purity, potency and
metabolic activity, including the impact of genetic modifications;
bacterial adherence potential, microbial strain interactions, and
constitutive production of ancillary antimicrobial substances. Based on
the application of this criterion, this product would be assigned to
CBER because CBER has the most expertise related to these issues.
i. Interferon and Ribavirin Combination Therapy. The product is
intended for use in the treatment of chronic hepatitis C. Interferon is
approved under the licensing provisions of the Public Health Service
Act as a stand-alone product for treatment of chronic hepatitis C.
Clinical studies show that ribavirin when used alone to treat chronic
hepatitis C can improve liver function, but most patients relapse with
treatment of ribavirin alone. However, data show that ribavirin, when
used in conjunction with interferon, produces a more efficacious
response than when interferon is used alone to treat chronic hepatitis
C. The drug and biological product components may be copackaged or are
provided separately but cross-labeled for use together.
PMOA Analysis--Which Mode of Action Provides the Most
Important Therapeutic Action of the Combination Product?
[[Page 49859]]
In this case, the product has two modes of action. One action of
the product is the action of the biological product component to treat
chronic hepatitis C, which produces a dose-dependent decline in
hepatitic C virus ribonucleic acid (RNA) titers. Another action of the
product is the ribavirin tablet's action to enhance the efficacy of the
biological product.
Assignment of Lead Agency Component: CDER
The product's PMOA is attributable to the biological product
component's function, while the drug component works to enhance its
efficacy. Note that interferons are now reviewed in CDER following the
transfer of therapeutic biological products to CDER in 2003. CDER is
now the agency component responsible for review of such biological
products (see example e. in this section of the document).
j. Implantable device with local chemotherapeutic drug.
Embolization device coated with a chemotherapeutic agent intended to
treat hypervascularized tumors.
PMOA Analysis--Which Mode of Action Provides the Most
Important Therapeutic Action of the Combination Product?
In this case, the product has two modes of action. One action is
the device component's action to physically occlude the tumor's blood
supply. Another action is the drug component's action as it elutes from
the device to the tumor where it has a cytotoxic effect. The
embolization device is a permanent implant, while the drug component is
a short-term acting chemotherapeutic.
Assignment of Lead Agency Component: CDRH
In this hypothetical example, the product's PMOA is attributable to
the device component's role in the physical occlusion of the blood
supply to the tumor site through embolization, while the drug component
plays a subordinate role in causing apoptosis in any remaining
proliferating tumor cells. In this hypothetical example, data indicate
that the effectiveness of the embolization device alone for the stated
indication is much greater than the effectiveness of the drug component
when delivered directly to the tumor site without use of the
embolization agent. Accordingly, FDA would assign the product to CDRH
for regulation because the device component provides the most important
therapeutic action of the product. It is unnecessary to proceed to the
assignment algorithm because it is possible to determine which mode of
action provides the most important therapeutic action of this
particular combination product. In this hypothetical example, the PMOA
was attributable to the device component. However, we note such a
product used for another indication, or with another drug, could have a
drug PMOA depending on the relative effectiveness of the drug and
device components in providing the most important therapeutic action
for the new use.
k. Vertebroplasty Implant With Extended-Release Analgesic. This
hypothetical product is intended to provide spinal stabilization in
patients with spinal bone metastases who also require palliative relief
of pain.
PMOA Analysis--Which Mode of Action Provides the Most
Important Therapeutic Action of the Combination Product?
One action of the product is the device action, to stabilize the
fractured spinal vertebral body bone. Another action of the product is
the drug action, to provide for extended analgesic delivery as an
alternative to oral medication in patients expected to continue to
require long-term pain management despite the stabilization implant. In
this hypothetical example, both actions of the product are independent,
and neither is clearly subordinate to the other. Because it is not
possible to determine which mode of action provides the greatest
contribution to the overall therapeutic effects of the combination
product, it is necessary to apply the assignment algorithm.
Is there an agency component that regulates other combination
products that present similar questions of safety and effectiveness
with regard to the combination product as a whole?
CDRH regulates vertebroplasty implants. CDER regulates analgesic
drug products. In this hypothetical example, no product combining a
vertebroplasty implant and an extended-release analgesic has yet been
submitted to the agency for review, therefore neither agency component
regulates combination products that present similar safety and
effectiveness questions with regard to the product as a whole. Because
there is no agency component that regulates products that present
similar safety and effectiveness questions with regard to the product
as a whole, it is necessary to apply the second criterion of the
algorithm.
Which agency component has the most expertise related to the most
significant safety and effectiveness questions presented by the
combination product?
Assignment of Lead Agency Component: CDRH
Because there is no agency component that regulates combination
products that present similar safety and effectiveness issues with
regard to the product as a whole, the agency would consider which
agency component has the most expertise related to the most significant
safety and effectiveness questions presented by the product. Although
important safety and effectiveness questions are presented by this new
route of administration of an analgesic and its extended release from
the device, and would need to be addressed, in this hypothetical
example, the most significant safety and effectiveness questions
associated with the combination product as a whole are related to the
mechanical strength, wear, and clinical performance of the
vertebroplasty implant. Based on the application of this criterion in
the algorithm, this product would be assigned to CDRH because CDRH has
the most expertise related to these issues. CDRH would consult or
collaborate with CDER on the safety and effectiveness issues raised by
the analgesic component.
Miscellaneous Comments
(Comment 35) Several comments asked that FDA post precedents on the
Web, so that stakeholders could better understand the process FDA used
when making jurisdictional determinations for combination products
submitted to FDA prior to implementation of this final rule.
(Response) FDA has complied with these requests and has published a
list of capsular descriptions of selected previous jurisdictional
determinations, and is working to publish additional such descriptions.
They are available on OCP's Web site at: http://www.fda.gov/oc/combination/determinations.html.
(Comment 36) A few comments suggested that FDA issue various
guidances on PMOA, either before issuance of the final rule,
concurrently with issuance of the final rule, or after issuance of the
final rule.
(Response) FDA believes that it has provided sufficient explanation
and examples, both in the preamble to the proposed and final PMOA rules
and on the PMOA analysis codified here, to render additional guidance
unnecessary at this time. Nonetheless, FDA will reconsider if
implementation of this rule gives rise to a need for development of a
guidance on this topic.
(Comment 37) One comment suggested that FDA repropose the rule
after FDA issued a guidance.
(Response) FDA declines to repropose the rule. First, the majority
of comments were supportive of the rule in whole or in part, and only
two minor changes have been made to the codified
[[Page 49860]]
language. Second, the majority of stakeholders that commented in public
meetings held prior to issuance of the proposal stressed to FDA the
need to define PMOA and MOA in a timely manner. We have done so here in
a manner that, as one comment stated, ``faithfully implements the
statute.''
(Comment 38) One comment suggested that FDA withdraw the rule
because it would hinder the assignment process and because the
algorithm is not set forth in the statute. The comment was primarily
concerned that the criteria used in the algorithm did not adequately
explain how FDA would determine the most significant as well as similar
safety and effectiveness questions.
(Response) FDA believes that it has adequately addressed how it
will determine these issues by providing in this preamble numerous
examples as well as examples of factors FDA considers when making these
determinations. Additionally, we have published on the OCP Web site an
extensive list of capsular descriptions of actual assignment decisions.
The agency believes the issuance of this rule will not hinder the
assignment process but rather improve it. FDA declines to withdraw this
rule for the reasons stated in comment 38 of this document.
Furthermore, FDA's experience in evaluating combination products has
shown that for a small subset of products, the most important
therapeutic action is not determinable with reasonable certainty, even
by the product's developer. Therefore, FDA needs a mechanism to ensure
that these types of products are assigned with consistency,
transparency, and predictability to an appropriate agency component.
Out of necessity, FDA established the algorithm to accomplish these
goals.
Implementation
(Comment 39) Several comments asked FDA to clarify whether the rule
would affect prior RFD determinations. One comment also asked that FDA
clarify whether the final rule is intended to change prior
jurisdictional decisions made outside the RFD process.
(Response) The rule is prospective in nature and will apply only to
assignments FDA makes 90 days after the rule is published in the
Federal Register. This final rule is not intended to affect RFD
determinations made prior to its implementation. For prior
jurisdictional assignments of combination products made outside the RFD
process, FDA would consider the facts and principles governing PMOA
before moving such a product to another agency component.
IV. Legal Authority
The agency derives its authority to issue the regulations found in
part 3 from 21 U.S.C. 321, 351, 353, 355, 360, 360c-360f, 360h-360j,
360gg-360ss, 360bbb-2, 371(a), 379e, 381, 394; 42 U.S.C. 216, 262, and
264 as stated in the Code of Federal Regulations. Congress expressly
directed FDA to assign combination products to the appropriate agency
component for regulation based on the agency's assessment of PMOA as
set forth in section 503(g) of the act. Under section 701 of the act
(21 U.S.C. 371) and for the efficient enforcement of the act, FDA has
the authority to define and codify ``mode of action'' and PMOA and to
issue the assignment algorithm.
V. Environmental Impact
FDA has determined under 21 CFR 25.30(a) and (k), and 25.32(g) that
this action is of a type that does not individually or cumulatively
have a significant effect on the human environment. Therefore, neither
an environmental assessment nor an environmental impact statement is
required.
VI. Paperwork Reduction Act of 1995
FDA concludes that the changes to the regulations on combination
products finalized in this document are not subject to review by the
Office of Management and Budget (OMB) because they do not constitute a
``collection of information'' under the Paperwork Reduction Act of 1995
(44 U.S.C. 3501-3520). The information collected under part 3 is
currently approved under OMB control number 0910-0523. This proposal
does not constitute an additional paperwork burden.
VII. Federalism
FDA has analyzed this final rule in accordance with the principles
set forth in Executive Order 13132. FDA has determined that the
proposed rule does not contain policies that have substantial direct
effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government. Accordingly,
the agency has concluded that the rule does not contain policies that
have federalism implications as defined in the Executive order and,
consequently, a federalism summary impact statement is not required.
VIII. Analysis of Impacts
A. Introduction
FDA has examined the impacts of the final rule under Executive
Order 12866, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the
Unfunded Mandates Reform Act of 1995 (Public Law 104-4, 109 Stat. 48).
Executive Order 12866 directs agencies to assess all costs and benefits
of available regulatory alternatives and, when regulation is necessary,
to select regulatory approaches that maximize net benefits (including
potential economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity). The final rule is not a
significant regulatory action as defined by the Executive order.
The Regulatory Flexibility Act requires agencies to analyze
regulatory options that would minimize any significant impact of a rule
on small entities. No further analysis is required under the Regulatory
Flexibility Act because the agency has determined that these final rule
amendments have no compliance costs and will not have a significant
impact on a substantial number of small entities. Therefore, the agency
certifies the final rule will not have a significant economic impact on
a substantial number of small entities.
Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires
that agencies prepare a written statement, which includes an assessment
of anticipated costs and benefits, before proposing ``any rule that
includes any Federal mandate that may result in an expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year.'' The current threshold after adjustment
for inflation is $115 million, using the most current (2003) implicit
price deflator for the Gross Domestic Product. FDA does not expect this
final rule to result in any 1-year expenditure that would meet or
exceed this amount.
B. The Rationale Behind This Final Rule
The purpose of the final rule is twofold: (1) To codify the
definition of PMOA, a criterion the agency has used for more than a
decade when assigning combination products to agency components for
regulatory oversight; and (2) to simplify the designation process by
providing a defined framework that sponsors may use when recommending
and/or considering the PMOA and assignment of a combination product.
Indeed, as stated in the proposed rule, many stakeholders have
requested that
[[Page 49861]]
the agency issue a rule defining PMOA because, without a definition of
this statutory criterion, the assignment process has at times appeared
to lack transparency. We believe that this final rule and its preamble
address the significant concerns stakeholders have expressed regarding
the assignment process, and address the significant concerns expressed
in the comments to the proposal. Moreover, we have incorporated into
the codified section of this final rule suggestions provided by the
comments to the proposal regarding the MOA and PMOA definitions.
The codification of these principles will also simplify the
designation process for sponsors. For years, a sponsor has been
required to determine PMOA and make a recommendation of lead agency
component for regulatory oversight of its combination product, without
a codified definition of PMOA. The finalization of this rule will allow
a sponsor to base its determination of PMOA and recommendation of lead
agency component for regulatory oversight of its product on defined
factors.
As mentioned previously in this final rule, as well as in the
proposed rule, the amendments finalized here will fulfill the statutory
requirement to assign products based on their PMOA, and will use safety
and effectiveness issues as well as consistency with the regulation of
similar products to guide the assignment of products when the agency
cannot determine which mode of action provides the most important
therapeutic action of a combination product. The final rule ensures
that like products will be similarly assigned and regulated, and it
allows new products for which the most important therapeutic action
cannot be determined to be assigned to the most appropriate agency
component based on the most significant safety and effectiveness issues
they present. In addition, by providing a more defined framework for
the assignment process, a codified definition of PMOA will further
MDUFMA's requirement that the agency ensure prompt assignment of
combination products. Also, by issuing this final rule, the agency
furthers MDUFMA's requirement that it review practices specific to the
assignment of combination products, consult with stakeholders and
center directors, and make a determination whether to modify those
practices.
The agency believes the final rule will have no compliance costs
and poses no additional burden to industry.
List of Subjects in 21 CFR Part 3
Administrative practice and procedure, Biologics, Drugs, Medical
devices.
0
Therefore, under the Federal Food, Drug, and Cosmetic Act, the Public
Health Service Act, and under authority delegated to the Commissioner
of Food and Drugs, 21 CFR part 3 is amended as follows:
PART 3--PRODUCT JURISDICTION
0
1. The authority citation for 21 CFR part 3 is revised to read as
follows:
Authority: 21 U.S.C. 321, 351, 353, 355, 360, 360c-360f, 360h-
360j, 360gg-360ss, 360bbb-2, 371(a), 379e, 381, 394; 42 U.S.C. 216,
262, 264.
0
2. Section 3.2 is amended by redesignating paragraph (k) as paragraph
(l), paragraph (l) as paragraph (n), paragraph (m) as paragraph (o),
paragraph (n) as paragraph (p); and by adding new paragraphs (k) and
(m) to read as follows:
Sec. 3.2 Definitions.
* * * * *
(k) Mode of action is the means by which a product achieves an
intended therapeutic effect or action. For purposes of this definition,
``therapeutic'' action or effect includes any effect or action of the
combination product intended to diagnose, cure, mitigate, treat, or
prevent disease, or affect the structure or any function of the body.
When making assignments of combination products under this part, the
agency will consider three types of mode of action: The actions
provided by a biological product, a device, and a drug. Because
combination products are comprised of more than one type of regulated
article (biological product, device, or drug), and each constituent
part contributes a biological product, device, or drug mode of action,
combination products will typically have more than one identifiable
mode of action.
(1) A constituent part has a biological product mode of action if
it acts by means of a virus, therapeutic serum, toxin, antitoxin,
vaccine, blood, blood component or derivative, allergenic product, or
analogous product applicable to the prevention, treatment, or cure of a
disease or condition of human beings, as described in section 351(i) of
the Public Health Service Act.
(2) A constituent part has a device mode of action if it meets the
definition of device contained in section 201(h)(1) to (h)(3) of the
act, it does not have a biological product mode of action, and it does
not achieve its primary intended purposes through chemical action
within or on the body of man or other animals and is not dependent upon
being metabolized for the achievement of its primary intended purposes.
(3) A constituent part has a drug mode of action if it meets the
definition of drug contained in section 201(g)(1) of the act and it
does not have a biological product or device mode of action.
* * * * *
(m) Primary mode of action is the single mode of action of a
combination product that provides the most important therapeutic action
of the combination product. The most important therapeutic action is
the mode of action expected to make the greatest contribution to the
overall intended therapeutic effects of the combination product.
* * * * *
0
3. Section 3.4 is amended by redesignating paragraph (b) as paragraph
(c) and by adding a new paragraph (b) to read as follows:
Sec. 3.4 Designated agency component.
* * * * *
(b) In some situations, it is not possible to determine, with
reasonable certainty, which one mode of action will provide a greater
contribution than any other mode of action to the overall therapeutic
effects of the combination product. In such a case, the agency will
assign the combination product to the agency component that regulates
other combination products that present similar questions of safety and
effectiveness with regard to the combination product as a whole. When
there are no other combination products that present similar questions
of safety and effectiveness with regard to the combination product as a
whole, the agency will assign the combination product to the agency
component with the most expertise related to the most significant
safety and effectiveness questions presented by the combination
product.
* * * * *
0
4. Section 3.7 is amended by revising paragraph (c)(2)(ix) and (c)(3)
to read as follows:
Sec. 3.7 Request for designation.
* * * * *
(c) * * *
(2) * * *
(ix) Description of all known modes of action, the sponsor's
identification of the single mode of action that provides the most
important therapeutic action of the product, and the basis for that
determination.
* * * * *
[[Page 49862]]
(3) The sponsor's recommendation as to which agency component
should have primary jurisdiction based on the mode of action that
provides the most important therapeutic action of the combination
product. If the sponsor cannot determine with reasonable certainty
which mode of action provides the most important therapeutic action of
the combination product, the sponsor's recommendation must be based on
the assignment algorithm set forth in Sec. 3.4(b) and an assessment of
the assignment of other combination products the sponsor wishes FDA to
consider during the assignment of its combination product.
* * * * *
Dated: August 9, 2005.
Jeffrey Shuren,
Assistant Commissioner for Policy.
[FR Doc. 05-16527 Filed 8-24-05; 8:45 am]
BILLING CODE 4160-01-S