Drugs for Human Use; Unapproved and Misbranded Oral Drugs Labeled for Prescription Use and Offered for Relief of Symptoms of Cold, Cough, or Allergy; Enforcement Action Dates, 11794-11798 [2011-4703]
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11794
Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Notices
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Food and Drug Administration
[Docket No. FDA–2011–N–0100]
Drugs for Human Use; Unapproved
and Misbranded Oral Drugs Labeled
for Prescription Use and Offered for
Relief of Symptoms of Cold, Cough, or
Allergy; Enforcement Action Dates
AGENCY:
Food and Drug Administration,
HHS.
ACTION:
Notice.
The Food and Drug
Administration (FDA) is announcing its
intention to take enforcement action
against unapproved and misbranded
oral drug products that are labeled for
prescription use and offered for relief of
symptoms of cold, cough, or allergy and
persons who manufacture or cause the
manufacture of such products. These
drug products are marketed without
approved applications, and many are
inappropriately labeled for use in
infants and young children. These drug
products must obtain FDA approval of
a new drug application (NDA) or an
abbreviated new drug application
(ANDA), or comply with an FDA overthe-counter (OTC) drug final
monograph, before marketing.
DATES: This notice is effective March 3,
2011. For information about
enforcement dates, see SUPPLEMENTARY
INFORMATION, section IV.
ADDRESSES: All communications in
response to this notice should be
identified with Docket No. FDA–2011–
N–0100 and directed to Sakineh
Walther, Division of New Drugs and
Labeling Compliance, Center for Drug
Evaluation and Research, Food and
Drug Administration, 10903 New
Hampshire Ave., Bldg. 51, rm. 5242,
Silver Spring, MD 20993–0002.
FOR FURTHER INFORMATION CONTACT:
Sakineh Walther, Division of New Drugs
and Labeling Compliance, Center for
Drug Evaluation and Research, Food
and Drug Administration, 10903 New
Hampshire Ave., Bldg. 51, rm. 5242,
Silver Spring, MD 20993–0002, 301–
796–3349, e-mail:
sakineh.walther@fda.hhs.gov.
SUMMARY:
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SUPPLEMENTARY INFORMATION:
I. Background
A. Cold, Cough, and Allergy Products
Covered by This Notice
This Federal Register notice covers
certain unapproved and misbranded
drug products that are available in oral
form and labeled for prescription use.
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B. Regulatory History of Products
Covered by This Notice
Many of the drug products covered by
this notice contain active ingredients
that were introduced into the
marketplace without prior review for
effectiveness. When initially enacted in
1938, the Federal Food, Drug, and
Cosmetic Act (the FD&C Act) required
that FDA review and approve ‘‘new
drugs’’ for safety, but not effectiveness,
before they could legally be sold in
interstate commerce.2 The FD&C Act
made it the sponsor’s burden to show
FDA that its drug was safe through the
submission of an NDA. Between 1938
and 1962, if a drug obtained approval,
FDA considered drugs that were
identical, related, or similar (IRS) 3 to
the approved drug to be ‘‘covered’’ by
that approval, and allowed those IRS
drugs to be marketed without
independent approval.
In 1962, Congress amended the FD&C
Act to require that new drugs be proven
effective for their labeled indications, as
well as safe. This amendment also
required FDA to conduct a retrospective
evaluation of effectiveness for all drugs
approved as safe between 1938 and
1962. FDA contracted with the National
Academy of Sciences/National Research
Council (NAS/NRC) to make an initial
evaluation of the effectiveness of over
3,400 products that had been approved
only for safety between 1938 and 1962.
The NAS/NRC reports for these drug
products were submitted to FDA in the
late 1960s and early 1970s. The Agency
reviewed and reevaluated the reports
and published its findings in Federal
Register notices. FDA’s administrative
implementation of the NAS/NRC reports
was called the Drug Efficacy Study
1 The term ‘‘extended-release’’ is used in this
document to include all timed-release products,
including products labeled as ‘‘sustained-release,’’
‘‘controlled-release,’’ ‘‘delayed-release,’’ or ‘‘longacting.’’ (See 21 CFR 310.502(a)(14).)
2 A ‘‘new drug’’ is defined by the FD&C Act as a
drug that is not generally recognized, by experts
qualified by scientific training and experience to
evaluate the safety and effectiveness of drugs, as
safe and effective for use under the conditions
prescribed, recommended, or suggested in its
labeling (section 201 of the FD&C Act (21 U.S.C.
321(p)).
3 FDA’s regulations at (21 CFR 310.6(b)(1))
provide: ‘‘An identical, related, or similar drug
includes other brands, potencies, dosage forms,
salts, and esters of the same drug moiety as well as
of any drug moiety related in chemical structure or
known pharmacological properties.’’
Implementation (DESI). DESI covered
the approximately 3,400 products
specifically reviewed by the NAS/NRC,
as well as the even larger number of IRS
products that entered the market
without FDA approval.4 Many of the
drug products covered by this notice
contain the same active ingredients as
drug products that were reviewed for
effectiveness through the DESI process.
All drugs covered by the DESI review
are ‘‘new drugs’’ under the FD&C Act. If
FDA’s final DESI determination
classifies a drug product as ineffective
for one or more indications, that drug
product and those IRS to it can no
longer be marketed for such indications
and are subject to enforcement action as
unapproved new drugs. If FDA’s final
DESI determination classifies a drug
product as effective for one or more of
its labeled indications, the drug, and
those IRS to it, can be marketed for such
indications, provided each product is
the subject of an application approved
for safety and effectiveness. Those drug
products with NDAs approved before
1962 for safety therefore require
approved supplements to their original
applications if found effective under
DESI; IRS drug products require an
approved NDA or ANDA, as
appropriate. Furthermore, labeling for
these drug products may contain only
those indications for which the DESI
review found the product effective
unless the firm marketing the product
has received approval for additional
indication(s).
In the early 1970s, FDA granted
temporary exemptions from the time
limits established for completing certain
phases of the DESI program for certain
oral prescription drugs offered for relief
of cold, cough, allergy, and related
symptoms (38 FR 34481, December 14,
1973). The exemptions were granted
because of the close relationship
between these prescription drugs and
OTC drugs, which were subject to the
ongoing OTC drug review. (See 21 CFR
part 330.) Postponement of final
evaluations of these DESI prescription
products enabled the Agency to
consider the recommendations of the
OTC review panel in addition to any
evidence submitted by NDA holders and
other parties in response to various
DESI notices covering relevant products.
II. Safety Concerns With Unapproved
New Drugs
These products are offered for relief of
symptoms relating to cold, cough, or
allergy, and include antitussives,
expectorants, antihistamines, and nasal
decongestants. This notice covers
extended-release,1 tannate, and
immediate-release drug products.
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Because marketed unapproved new
drug products have not been through
4 Section 310.6(b)(2)) provides that when
qualified experts determine that the findings in a
DESI notice are applicable to an IRS drug, that IRS
drug is affected by the DESI notice.
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FDA’s approval process, there may be
safety risks associated with them. Some
unapproved product labeling omits or
modifies safety warnings or other
information that is important to ensure
safe use, such as drug interactions or
potential adverse experiences. FDA is
particularly concerned about pediatric
labeling for these unapproved products.
Some of the unapproved products
covered by this notice are labeled and
marketed for use in children as young
as 1 month of age. Without reviewing
applications for these products, FDA
has no way to assess the scientific
support, if any, for the use of these
products in pediatric populations.
FDA also has concerns regarding the
manufacturing processes for
unapproved new drugs and changes in
the formulations of these products.
When new drugs are marketed without
FDA approval, FDA does not have an
opportunity, prior to product marketing,
to determine whether the manufacturing
process for the drugs is adequate to
ensure that they are of suitable quality.
Additionally, there is no opportunity
prior to marketing for FDA to review
and approve proprietary names to
minimize potential safety issues caused
by product name confusion. In fact,
FDA has received reports of name
confusion associated with unapproved
prescription products covered by this
notice. Look-alike and sound-alike
similarities between product names may
contribute to medication errors and
adverse events.
Similarly, the new drug approval
requirement allows the Agency to
evaluate proposed changes to approved
product formulations to ensure that
such modifications meet FDA standards
for safety and effectiveness and to
ensure that formulation changes are
accompanied, as necessary, by
appropriate changes in product
proprietary names or labeling, or other
measures that may be warranted to
minimize confusion and risks to
patients. Modifications of product
formulations that are not made under
FDA’s drug approval process thus pose
an increased risk of confusing
healthcare practitioners and causing
harm to consumers, such as underdose
or overdose, particularly in pediatric
patients.
Finally, FDA has specific safety
concerns about the products covered by
this notice that are marketed as
extended-release products. Many of
these products contain amounts of
active ingredients that could pose safety
risks if the same amount of active
ingredient were contained in an
immediate-release dosage form. Without
prior review of applications for these
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products, there is no assurance that the
firms that market these products have
established appropriate specifications
for release of the active ingredients or
that the products are properly
formulated and manufactured to release
their active ingredients to an extent and
at a rate that is both safe and effective.
III. Legal Status of Products Identified
in This Notice
A. Extended-Release Products
Some of the products covered by this
notice are sold as extended-release
products. Since 1959, FDA has
concluded that all products in
extended-release dosage forms are new
drugs requiring approved NDAs or
ANDAs before being marketed (24 FR
3756, May 9, 1959). Agency review of
individual applications for extendedrelease products is needed to ensure
that the finished product releases its
active ingredient to an extent and at a
rate that is both safe, with a predictable
and controlled release of the dose, and
effective, sustaining the intended effect
over the entire dosing interval. Firms
submitting applications are required to
establish appropriate release
specifications supported by clinical
evidence, along with data showing that
the finished product as manufactured by
the firm releases its active ingredient
according to those specifications.
The Agency’s determination that all
products in timed-release dosage form
are new drugs requiring approved
applications is codified at 21 CFR
310.502(a)(14). Approval of an NDA
under section 505(b) of the FD&C Act
(21 U.S.C. 355(b)) or an ANDA under
section 505(j) of the FD&C Act is
required as a condition for marketing all
such products.
The unapproved extended-release
drug products subject to this notice are
all labeled for prescription use.
Prescription drugs are defined under
section 503(b)(1)(A) of the FD&C Act (21
U.S.C. 353(b)(1)(A)) as drugs that,
because of toxicity or other potentially
harmful effect, are not safe to use except
under the supervision of a practitioner
licensed by law to administer such
drugs.5 A drug that is labeled as a
prescription drug but does not meet the
definition of ‘‘prescription drug’’ under
section 503(b)(1)(A) of the FD&C Act is
misbranded under section 503(b)(4)(B)
of the FD&C Act (21 U.S.C. 353(b)(4)(B)).
Thus, if an extended-release drug
5 The definition of ‘‘prescription drug’’ also
includes a drug that is limited by an approved
application to use under the professional
supervision of a licensed practitioner (21 U.S.C.
353(b)(1)(B)). This prong of the definition obviously
does not apply to the unapproved extended-release
drug products covered by this notice.
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covered by this notice is labeled as a
prescription product, but does not meet
the definition in section 503(b)(1)(A) of
the FD&C Act, it is misbranded under
section 503(b)(4)(B) of the FD&C Act. If
an extended-release drug subject to this
notice actually meets the definition of
‘‘prescription drug’’ under 503(b)(1)(A),
it is misbranded under section 502(f)(1)
of the FD&C Act (21 U.S.C. 352(f)(1)), in
that it fails to bear adequate directions
for use. An approved prescription drug
can satisfy the ‘‘adequate directions for
use’’ requirement if it bears the NDAapproved labeling (§§ 201.100(c)(2) and
201.115 (21 CFR 201.100(c)(2) and
201.115)). Because the unapproved
prescription extended-release drug
products covered by this notice do not
have approved applications with
approved labeling, they fail to bear
‘‘adequate directions for use,’’ and are
misbranded under section 502(f)(1) of
the FD&C Act.
B. Tannates
Some of the products covered by this
notice contain active ingredients that
are in tannate salt form (tannate drugs).
FDA has reviewed the publicly available
scientific literature on these ingredients,
and has determined that unapproved
oral drugs labeled for prescription use
and offered for relief of symptoms of
cold, cough, or allergy that contain the
following ingredients are not generally
recognized as safe and effective
(GRASE): Brompheniramine tannate;
carbetapentane tannate; carbinoxamine
tannate; chlorpheniramine tannate;
dexbrompheniramine tannate;
dexchlorpheniramine tannate;
dextromethorphan tannate;
diphenhydramine tannate; ephedrine
tannate; phenylephrine tannate;
pseudoephedrine tannate; pyrilamine
tannate; and triprolidine tannate.
Therefore, products containing these
ingredients are new drugs within the
meaning of section 201(p) of the FD&C
Act, and require approved NDAs or
ANDAs before marketing.
The unapproved tannate drug
products subject to this notice are all
labeled for prescription use.
Prescription drugs are defined under
section 503(b)(1)(A) of the FD&C Act as
drugs that, because of toxicity or other
potentially harmful effect, are not safe to
use except under the supervision of a
practitioner licensed by law to
administer such drugs.6 A drug that is
6 The definition of ‘‘prescription drug’’ also
includes a drug that is limited by an approved
application to use under the professional
supervision of a licensed practitioner (21 U.S.C.
353(b)(1)(B)). This prong of the definition obviously
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labeled as a prescription drug but does
not meet the definition of ‘‘prescription
drug’’ under section 503(b)(1)(A) of the
FD&C Act is misbranded under section
503(b)(4)(B) of the FD&C Act. Thus, if a
tannate drug covered by this notice is
labeled as a prescription product, but
does not meet the definition in section
503(b)(1)(A) of the FD&C Act, it is
misbranded under section 503(b)(4)(B)
of the FD&C Act. If a tannate drug
covered by this notice actually meets
the definition of ‘‘prescription drug,’’ it
is misbranded under section 502(f)(1) of
the FD&C Act, in that it fails to bear
adequate directions for use. An
approved prescription drug can satisfy
the ‘‘adequate directions for use’’
requirement if it bears the NDAapproved labeling (21 CFR 201.100(c)(2)
and 201.115). Because the unapproved
prescription tannate drug products
covered by this notice do not have
approved applications with approved
labeling, they fail to bear ‘‘adequate
directions for use,’’ and are misbranded
under section 502(f)(1) of the FD&C Act.
C. Immediate-Release Products
The remaining unapproved oral
products covered by this notice are
immediate-release products labeled for
prescription use and offered for relief of
symptoms associated with cold, cough,
or allergy. The immediate-release
products fall into the following three
categories:
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1. Drugs Inappropriately Labeled for
Prescription Use
A small number of the immediaterelease products covered by this notice
conform to the requirements of the final
OTC monograph at 21 CFR part 341,
‘‘Cold, Cough, Allergy, Bronchodilator,
and Antiasthmatic Drug Products for
Over-the-Counter Human Use’’ (the final
OTC Cold Cough monograph), except
that they are labeled for prescription use
only. Section 503(b)(1) of the FD&C Act
establishes the definition of a
‘‘prescription drug.’’ Drug products that
do not meet the definition of a
prescription drug but are labeled for
prescription use are misbranded under
section 503(b)(4)(B) of the FD&C Act. If
these drugs conform to the requirements
of the final OTC Cold Cough
monograph, they are not new drugs and
they do not require an approved NDA or
ANDA in order to be legally marketed
OTC.7
does not apply to the unapproved tannate drug
products covered by this notice.
7 In addition to any other applicable
requirements, firms that manufacture OTC drugs
must comply with the labeling requirements at 21
CFR 201.66.
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2. Drugs Containing Ingredients
Included in the Final OTC Cold Cough
Monograph But Labeled With
Nonconforming Indications or Dosing
Regimens
The majority of the immediate-release
products covered by this notice are
labeled for prescription use and contain
ingredients that are included in the final
OTC Cold Cough monograph, but have
indications, dosing regimens, or both,
that are inconsistent with that
monograph. FDA has reviewed the
indications and dosing regimens (dosing
intervals and dosage amounts) in the
labeling of over 300 such products, and
has reviewed the publicly available
scientific literature for studies of these
products.8 In no case did FDA find
literature sufficient to support a
determination that one of these products
was GRASE for relief of symptoms of
cold, cough, or allergy. Therefore, these
products are all ‘‘new drugs’’ within the
meaning of section 201(p) of the FD&C
Act, that require approved NDAs or
ANDAs before marketing.
The unapproved immediate-release
drug products subject to this notice that
contain ingredients that are included in
the final OTC Cold Cough monograph,
but with indications, dosing regimens,
or both, that are inconsistent with that
monograph, are all labeled for
prescription use. Prescription drugs are
defined under section 503(b)(1)(A) of
the FD&C Act as drugs that, because of
toxicity or other potentially harmful
effect, are not safe to use except under
the supervision of a practitioner
licensed by law to administer such
drugs.9 A drug that is labeled as a
prescription drug but does not meet the
definition of ‘‘prescription drug’’ under
section 503(b)(1)(A) of the FD&C Act is
misbranded under section 503(b)(4)(B)
of the FD&C Act. Thus, if an immediaterelease drug covered by this notice is
labeled as a prescription product, but
does not meet the definition in section
503(b)(1)(A), it is misbranded under
section 503(b)(4)(B). If an immediaterelease drug covered by this notice does
meet the definition of ‘‘prescription
drug’’ in 503(b)(1)(A), it is misbranded
under section 502(f)(1) of the FD&C Act,
8 The over 300 products reviewed by FDA
represent all products in this category that FDA was
able to identify.
9 The definition of ‘‘prescription drug’’ also
includes a drug that is limited by an approved
application to use under the professional
supervision of a licensed practitioner (21 U.S.C.
353(b)(1)(B)). This prong of the definition obviously
does not apply to the unapproved immediaterelease drug products subject to this notice and
containing ingredients that are included in the final
OTC Cold Cough monograph, but with indications,
dosing regimens, or both, that are inconsistent with
that monograph.
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in that it fails to bear adequate
directions for use. An approved
prescription drug can satisfy the
‘‘adequate directions for use’’
requirement if it bears the NDAapproved labeling (§§ 201.100(c)(2) and
201.115). Because the unapproved
prescription immediate-release drug
products subject to this notice that
contain ingredients that are included in
the final OTC Cold Cough monograph,
but with indications, dosing regimens,
or both, that are inconsistent with that
monograph, do not have approved
applications with approved labeling,
they fail to bear ‘‘adequate directions for
use,’’ and are misbranded under section
502(f)(1).
3. Drugs Containing Ingredients Not
Included in the Final OTC Cold Cough
Monograph
The remaining immediate-release
products covered by this notice are
labeled for prescription use and contain
active ingredients that are not included
in the final OTC Cold Cough
monograph. FDA has reviewed the
publicly available scientific literature on
these ingredients, and has determined
that the products covered by this notice
and offered for relief of symptoms of
cold, cough, or allergy that contain the
following ingredients are not GRASE:
Atropine; carbetapentane;
cyproheptadine; dyphylline;
hyoscyamine; methscopolamine nitrate;
phenyltoloxamine; potassium
guaiacosulfonate; promethazine; and
scopolamine. Therefore, products
covered by this notice containing these
ingredients and marketed for relief of
symptoms of cold, cough, or allergy are
new drugs within the meaning of
section 201(p) of the FD&C Act, and
require approved NDAs or ANDAs prior
to marketing.
The unapproved immediate-release
drug products that are subject to this
notice and that contain active
ingredients not included in the final
OTC Cold Cough monograph are all
labeled for prescription use.
Prescription drugs are defined under
section 503(b)(1)(A) of the FD&C Act as
drugs that, because of toxicity or other
potentially harmful effect, are not safe to
use except under the supervision of a
practitioner licensed by law to
administer such drugs.10 A drug that is
10 The definition of ‘‘prescription drug’’ also
includes a drug that is limited by an approved
application to use under the professional
supervision of a licensed practitioner (21 U.S.C.
353(b)(1)(B)). This prong of the definition obviously
does not apply to the unapproved immediaterelease drug products covered by this notice that
contain active ingredients not included in the final
OTC Cold Cough monograph.
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labeled as a prescription drug but does
not meet the definition of ‘‘prescription
drug’’ under section 503(b)(1)(A) is
misbranded under section 503(b)(4)(B)
of the FD&C Act. Thus, if an immediaterelease drug covered by this notice is
labeled as a prescription product, but
does not meet the definition in section
503(b)(1)(A), it is misbranded under
section 503(b)(4)(B). If a drug covered by
this notice meets the definition of
‘‘prescription drug’’ in 503(b)(1)(A), it is
misbranded under section 502(f)(1) of
the FD&C Act, in that it fails to bear
adequate directions for use. An
approved prescription drug can satisfy
the ‘‘adequate directions for use’’
requirement if it bears the NDAapproved labeling (§§ 201.100(c)(2) and
201.115). Because the unapproved
prescription immediate-release drug
products covered by this notice that
contain active ingredients not included
in the final OTC Cold Cough monograph
do not have approved applications with
approved labeling, they fail to bear
‘‘adequate directions for use,’’ and are
misbranded under section 502(f)(1) of
the FD&C Act.
IV. Notice of Enforcement Action
Although not required to do so by the
Administrative Procedure Act, the
FD&C Act, or any rules issued under its
authority, or for any other legal reason,
FDA is providing this notice to
persons 11 who are marketing
unapproved and misbranded oral drug
products labeled for prescription use
and offered for relief of symptoms
relating to cold, cough, or allergy that
the Agency intends to take enforcement
action against such products and those
who manufacture them or cause them to
be manufactured or shipped in
interstate commerce.
Manufacturing or shipping the drug
products covered by this notice can
result in enforcement action, including
seizure, injunction, or other judicial or
administrative proceeding. Consistent
with policies described in the Agency’s
guidance entitled ‘‘Marketed
Unapproved Drugs—Compliance Policy
Guide’’ (the Marketed Unapproved
Drugs CPG) (https://www.fda.gov/
downloads/Drugs/GuidanceCompliance
RegulatoryInformation/Guidances/
UCM070290.pdf), the Agency does not
expect to issue a warning letter or any
other further warning to firms marketing
drug products covered by this notice
prior to taking enforcement action. The
Agency also reminds firms that, as
stated in the Marketed Unapproved
Drugs CPG, any unapproved drug
11 A ‘‘person’’ includes individuals, partnerships,
corporations, and associations (21 U.S.C. 321(e)).
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marketed without a required approved
application is subject to Agency
enforcement action at any time. The
issuance of this notice does not in any
way obligate the Agency to issue similar
notices or any notice in the future
regarding marketed unapproved
drugs.12
As described in the Marketed
Unapproved Drugs CPG, the Agency
may, at its discretion, identify a period
of time during which the Agency does
not intend to initiate an enforcement
action against a currently marketed
unapproved drug solely on the ground
that it lacks an approved application
under section 505 of the FD&C Act.
With respect to drug products covered
by this notice, the Agency intends to
exercise its enforcement discretion for
only a limited period of time because
there are safety issues with respect to
the products covered by this notice and
numerous marketed products that have
approved applications or comply with
the applicable OTC drug final
monograph are offered to treat
symptoms relating to cold, cough, and
allergy. Therefore, the Agency intends
to implement this notice as follows.
For the effective date of this notice,
see the DATES section of this document.
FDA intends to take enforcement action
against any drug product covered by
this notice that is not listed with the
Agency in full compliance with section
510 of the FD&C Act (21 U.S.C. 360)
before March 2, 2011, and is
manufactured, shipped, or otherwise
introduced or delivered for introduction
into interstate commerce by any person
on or after March 3, 2011. FDA also
intends to take enforcement action
against any drug product covered by
this notice that is listed with FDA in full
compliance with section 510 of the
FD&C Act but is not being commercially
used or sold 13 in the United States on
March 2, 2011 and that is manufactured,
shipped, or otherwise introduced or
delivered for introduction into interstate
commerce by any person on or after
March 3, 2011.
However, for drug products covered
by this notice that are commercially
used or sold in the United States, have
a National Drug Code (NDC) number
listed with FDA, and are in full
12 The Agency’s general approach for dealing with
these products in an orderly manner is spelled out
in the Marketed Unapproved Drugs CPG. That CPG,
however, provides notice that any product that is
being marketed illegally, and the persons
responsible for causing the illegal marketing of the
product, are subject to FDA enforcement action at
any time.
13 For purposes of this notice, the term
‘‘commercially used or sold’’ means that the product
has been used in a business or activity involving
retail or wholesale marketing and/or sale.
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11797
compliance with section 510 of the
FD&C Act before March 2, 2011
(‘‘currently marketed and listed’’), the
Agency intends to exercise its
enforcement discretion as follows. FDA
intends to initiate enforcement action
against any currently marketed and
listed product covered by this notice
that is manufactured on or after June 1,
2011 or that is shipped on or after
August 30, 2011.14 Further, FDA intends
to take enforcement action against any
person who manufactures or ships such
products after these dates. Any person
who has submitted or submits an
application for a drug product covered
by this notice but has not received
approval must comply with this notice.
The Agency, however, does not
intend to exercise its enforcement
discretion as outlined previously if the
following apply: (1) A manufacturer or
distributor of drug products covered by
this notice is violating other provisions
of the FD&C Act, including, but not
limited to, violations related to FDA’s
current good manufacturing practices,
adverse drug event reporting, labeling or
misbranding requirements other than
those identified in this notice or (2) it
appears that a firm, in response to this
notice, increases its manufacture or
interstate shipment of drug products
covered by this notice above its usual
volume during these periods.
Nothing in this notice, including
FDA’s intent to exercise its enforcement
discretion, alters any person’s liability
or obligations in any other enforcement
action, or precludes the Agency from
initiating or proceeding with
enforcement action in connection with
any other alleged violation of the FD&C
Act, whether or not related to a drug
product covered by this notice.
Similarly, a person who is or becomes
enjoined from marketing unapproved or
misbranded drugs may not resume
marketing of such products based on
FDA’s exercise of enforcement
discretion that is set forth in this notice.
Drug manufacturers and distributors
should be aware that the Agency is
exercising its enforcement discretion as
described previously only in regard to
14 If FDA finds it necessary to take enforcement
action against a product covered by this notice, the
agency may take action relating to all of the
defendant’s other violations of the FD&C Act at the
same time. For example, if a firm continues to
manufacture or market a product covered by this
notice after the applicable enforcement date has
passed, to preserve limited agency resources, FDA
may take enforcement action relating to all of the
firm’s unapproved drugs that require applications at
the same time. (See, e.g., United States v. Sage
Pharmaceuticals, 210 F.3d 475, 479–480 (5th Cir.
2000) (permitting the Agency to combine all
violations of the act in one proceeding, rather than
taking action against multiple violations of the act
in ‘‘piecemeal fashion’’).)
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Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Notices
drug products covered by this notice
that are marketed under an NDC number
listed with the Agency in full
compliance with section 510 of the
FD&C Act before March 2, 2011. As
previously stated, drug products
covered by this notice that are currently
marketed but not listed with the Agency
on the date of this notice must, as of the
effective date of this notice, have
approved applications prior to their
shipment in interstate commerce.
Moreover, any person or firm that has
submitted or submits an application but
has yet to receive approval for such
products is still responsible for full
compliance with this notice.
V. Discontinued Products
Some firms may have previously
discontinued the manufacturing or
distribution of products covered by this
notice without removing them from the
listing of their products under section
510(j) of the FD&C Act. Other firms may
discontinue manufacturing or marketing
listed products in response to this
notice. Firms that wish to notify the
Agency of product discontinuation
should send a letter, signed by the firm’s
chief executive officer, fully identifying
the discontinued product(s), including
NDC number(s), and stating that the
product(s) has (have) been
discontinued. The letter should be sent
to Sakineh Walther (see ADDRESSES).
Firms should also update the listing of
their products under section 510(j) of
the FD&C Act to reflect discontinuation
of products covered by this notice. FDA
plans to rely on its existing records,
including its drug listing records, or
other available information when it
targets violations for enforcement
action.
This notice is issued under the
Federal Food, Drug, and Cosmetic Act
(sections 502 and 505 (21 U.S.C. 352
and 355)) and under authority delegated
to the Assistant Commissioner for
Policy under section 1410.21 of the FDA
Staff Manual Guide.
Dated: February 22, 2011.
Leslie Kux,
Acting Assistant Commissioner for Policy.
srobinson on DSKHWCL6B1PROD with NOTICES
[FR Doc. 2011–4703 Filed 3–2–11; 8:45 am]
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Health Resources and Services
Administration
National Institutes of Health
Advisory Committee on Organ
Transplantation; Notice of Meeting
Health Resources and Services
Administration, HHS.
AGENCY:
ACTION:
Notice; correction.
The Health Resources and
Services Administration published a
notice in the Federal Register of
February 9, 2011 (76 FR 7223–7224)
announcing an Advisory Committee on
Organ Transplantation meeting on
March 8, 2011. The type of meeting,
time and place have been changed.
SUMMARY:
Correction
In the Federal Register of February 9,
2011, in FR Doc. 2011–2839, on page
7223, 2nd column, under the heading
Department of Health and Human
Services, Health Resources and Services
Administration, Advisory Committee on
Organ Transplantation; Notice of
Meeting, change the Times and Place to
read:
The meeting will be an Audio
Conference Call on March 8, 2011, from
12 noon to 4 p.m. EST. To access the
conference call, call the USA Toll Free
Number 888–469–1090 and enter the
Passcode 2741198. The conference call
leader is Patricia A. Stroup. Participants
should call no later than 11:45 a.m. EST
in order for logistics to be set up.
Participants are asked to register for the
conference call by contacting Brittany
Carey, HRM/Professional and Scientific
Associates (PSA), the logistical support
contractor for the meeting, at (703) 889–
9033 or b_carey@team-psa.com. The
registration deadline is March 7, 2011.
The Department will try to
accommodate those wishing to
participate in the call.
The next face-to-face ACOT meeting
is planned for August 2011. Details
regarding an August meeting will be
published in a subsequent Federal
Register notice.
Reva Harris,
Acting Director, Division of Policy and
Information Coordination.
BILLING CODE 4160–01–P
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National Institute on Aging; Notice of
Closed Meeting
Pursuant to section 10(d) of the
Federal Advisory Committee Act, as
amended (5 U.S.C. App.), notice is
hereby given of the following meeting.
The meeting will be closed to the
public in accordance with the
provisions set forth in sections
552b(c)(4) and 552b(c)(6), Title 5 U.S.C.,
as amended. The grant applications and
the discussions could disclose
confidential trade secrets or commercial
property such as patentable material,
and personal information concerning
individuals associated with the grant
applications, the disclosure of which
would constitute a clearly unwarranted
invasion of personal privacy.
Name of Committee: National Institute on
Aging Special Emphasis Panel; Member
Conflict.
Date: March 15, 2011.
Time: 9 a.m. to 10 a.m.
Agenda: To review and evaluate grant
applications.
Place: National Institute on Aging,
Gateway Building, 7201 Wisconsin Avenue,
Suite 2C212, Bethesda, MD 20892
(Telephone Conference Call).
Contact Person: Ramesh Vemuri, PhD,
Chief, Scientific Review Branch, National
Institute on Aging, National Institutes of
Health, 7201 Wisconsin Avenue, Suite 2C–
212, Bethesda, MD 20892, 301–402–7700,
rv23r@nih.gov.
This notice is being published less than 15
days prior to the meeting due to the timing
limitations imposed by the review and
funding cycle.
(Catalogue of Federal Domestic Assistance
Program Nos. 93.866, Aging Research,
National Institutes of Health, HHS)
Dated: February 25, 2011.
Jennifer S. Spaeth,
Director, Office of Federal Advisory
Committee Policy.
[FR Doc. 2011–4826 Filed 3–2–11; 8:45 am]
BILLING CODE 4140–01–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
National Institutes of Health
National Center for Research
Resources; Notice of Closed Meetings
Pursuant to section 10(d) of the
Federal Advisory Committee Act, as
amended (5 U.S.C. App.), notice is
hereby given of the following meetings.
The meetings will be closed to the
public in accordance with the
provisions set forth in sections
E:\FR\FM\03MRN1.SGM
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[Federal Register Volume 76, Number 42 (Thursday, March 3, 2011)]
[Notices]
[Pages 11794-11798]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-4703]
[[Page 11794]]
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
[Docket No. FDA-2011-N-0100]
Drugs for Human Use; Unapproved and Misbranded Oral Drugs Labeled
for Prescription Use and Offered for Relief of Symptoms of Cold, Cough,
or Allergy; Enforcement Action Dates
AGENCY: Food and Drug Administration, HHS.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is announcing its
intention to take enforcement action against unapproved and misbranded
oral drug products that are labeled for prescription use and offered
for relief of symptoms of cold, cough, or allergy and persons who
manufacture or cause the manufacture of such products. These drug
products are marketed without approved applications, and many are
inappropriately labeled for use in infants and young children. These
drug products must obtain FDA approval of a new drug application (NDA)
or an abbreviated new drug application (ANDA), or comply with an FDA
over-the-counter (OTC) drug final monograph, before marketing.
DATES: This notice is effective March 3, 2011. For information about
enforcement dates, see SUPPLEMENTARY INFORMATION, section IV.
ADDRESSES: All communications in response to this notice should be
identified with Docket No. FDA-2011-N-0100 and directed to Sakineh
Walther, Division of New Drugs and Labeling Compliance, Center for Drug
Evaluation and Research, Food and Drug Administration, 10903 New
Hampshire Ave., Bldg. 51, rm. 5242, Silver Spring, MD 20993-0002.
FOR FURTHER INFORMATION CONTACT: Sakineh Walther, Division of New Drugs
and Labeling Compliance, Center for Drug Evaluation and Research, Food
and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, rm. 5242,
Silver Spring, MD 20993-0002, 301-796-3349, e-mail:
sakineh.walther@fda.hhs.gov.
SUPPLEMENTARY INFORMATION:
I. Background
A. Cold, Cough, and Allergy Products Covered by This Notice
This Federal Register notice covers certain unapproved and
misbranded drug products that are available in oral form and labeled
for prescription use. These products are offered for relief of symptoms
relating to cold, cough, or allergy, and include antitussives,
expectorants, antihistamines, and nasal decongestants. This notice
covers extended-release,\1\ tannate, and immediate-release drug
products.
---------------------------------------------------------------------------
\1\ The term ``extended-release'' is used in this document to
include all timed-release products, including products labeled as
``sustained-release,'' ``controlled-release,'' ``delayed-release,''
or ``long-acting.'' (See 21 CFR 310.502(a)(14).)
---------------------------------------------------------------------------
B. Regulatory History of Products Covered by This Notice
Many of the drug products covered by this notice contain active
ingredients that were introduced into the marketplace without prior
review for effectiveness. When initially enacted in 1938, the Federal
Food, Drug, and Cosmetic Act (the FD&C Act) required that FDA review
and approve ``new drugs'' for safety, but not effectiveness, before
they could legally be sold in interstate commerce.\2\ The FD&C Act made
it the sponsor's burden to show FDA that its drug was safe through the
submission of an NDA. Between 1938 and 1962, if a drug obtained
approval, FDA considered drugs that were identical, related, or similar
(IRS) \3\ to the approved drug to be ``covered'' by that approval, and
allowed those IRS drugs to be marketed without independent approval.
---------------------------------------------------------------------------
\2\ A ``new drug'' is defined by the FD&C Act as a drug that is
not generally recognized, by experts qualified by scientific
training and experience to evaluate the safety and effectiveness of
drugs, as safe and effective for use under the conditions
prescribed, recommended, or suggested in its labeling (section 201
of the FD&C Act (21 U.S.C. 321(p)).
\3\ FDA's regulations at (21 CFR 310.6(b)(1)) provide: ``An
identical, related, or similar drug includes other brands,
potencies, dosage forms, salts, and esters of the same drug moiety
as well as of any drug moiety related in chemical structure or known
pharmacological properties.''
---------------------------------------------------------------------------
In 1962, Congress amended the FD&C Act to require that new drugs be
proven effective for their labeled indications, as well as safe. This
amendment also required FDA to conduct a retrospective evaluation of
effectiveness for all drugs approved as safe between 1938 and 1962. FDA
contracted with the National Academy of Sciences/National Research
Council (NAS/NRC) to make an initial evaluation of the effectiveness of
over 3,400 products that had been approved only for safety between 1938
and 1962. The NAS/NRC reports for these drug products were submitted to
FDA in the late 1960s and early 1970s. The Agency reviewed and
reevaluated the reports and published its findings in Federal Register
notices. FDA's administrative implementation of the NAS/NRC reports was
called the Drug Efficacy Study Implementation (DESI). DESI covered the
approximately 3,400 products specifically reviewed by the NAS/NRC, as
well as the even larger number of IRS products that entered the market
without FDA approval.\4\ Many of the drug products covered by this
notice contain the same active ingredients as drug products that were
reviewed for effectiveness through the DESI process.
---------------------------------------------------------------------------
\4\ Section 310.6(b)(2)) provides that when qualified experts
determine that the findings in a DESI notice are applicable to an
IRS drug, that IRS drug is affected by the DESI notice.
---------------------------------------------------------------------------
All drugs covered by the DESI review are ``new drugs'' under the
FD&C Act. If FDA's final DESI determination classifies a drug product
as ineffective for one or more indications, that drug product and those
IRS to it can no longer be marketed for such indications and are
subject to enforcement action as unapproved new drugs. If FDA's final
DESI determination classifies a drug product as effective for one or
more of its labeled indications, the drug, and those IRS to it, can be
marketed for such indications, provided each product is the subject of
an application approved for safety and effectiveness. Those drug
products with NDAs approved before 1962 for safety therefore require
approved supplements to their original applications if found effective
under DESI; IRS drug products require an approved NDA or ANDA, as
appropriate. Furthermore, labeling for these drug products may contain
only those indications for which the DESI review found the product
effective unless the firm marketing the product has received approval
for additional indication(s).
In the early 1970s, FDA granted temporary exemptions from the time
limits established for completing certain phases of the DESI program
for certain oral prescription drugs offered for relief of cold, cough,
allergy, and related symptoms (38 FR 34481, December 14, 1973). The
exemptions were granted because of the close relationship between these
prescription drugs and OTC drugs, which were subject to the ongoing OTC
drug review. (See 21 CFR part 330.) Postponement of final evaluations
of these DESI prescription products enabled the Agency to consider the
recommendations of the OTC review panel in addition to any evidence
submitted by NDA holders and other parties in response to various DESI
notices covering relevant products.
II. Safety Concerns With Unapproved New Drugs
Because marketed unapproved new drug products have not been through
[[Page 11795]]
FDA's approval process, there may be safety risks associated with them.
Some unapproved product labeling omits or modifies safety warnings or
other information that is important to ensure safe use, such as drug
interactions or potential adverse experiences. FDA is particularly
concerned about pediatric labeling for these unapproved products. Some
of the unapproved products covered by this notice are labeled and
marketed for use in children as young as 1 month of age. Without
reviewing applications for these products, FDA has no way to assess the
scientific support, if any, for the use of these products in pediatric
populations.
FDA also has concerns regarding the manufacturing processes for
unapproved new drugs and changes in the formulations of these products.
When new drugs are marketed without FDA approval, FDA does not have an
opportunity, prior to product marketing, to determine whether the
manufacturing process for the drugs is adequate to ensure that they are
of suitable quality. Additionally, there is no opportunity prior to
marketing for FDA to review and approve proprietary names to minimize
potential safety issues caused by product name confusion. In fact, FDA
has received reports of name confusion associated with unapproved
prescription products covered by this notice. Look-alike and sound-
alike similarities between product names may contribute to medication
errors and adverse events.
Similarly, the new drug approval requirement allows the Agency to
evaluate proposed changes to approved product formulations to ensure
that such modifications meet FDA standards for safety and effectiveness
and to ensure that formulation changes are accompanied, as necessary,
by appropriate changes in product proprietary names or labeling, or
other measures that may be warranted to minimize confusion and risks to
patients. Modifications of product formulations that are not made under
FDA's drug approval process thus pose an increased risk of confusing
healthcare practitioners and causing harm to consumers, such as
underdose or overdose, particularly in pediatric patients.
Finally, FDA has specific safety concerns about the products
covered by this notice that are marketed as extended-release products.
Many of these products contain amounts of active ingredients that could
pose safety risks if the same amount of active ingredient were
contained in an immediate-release dosage form. Without prior review of
applications for these products, there is no assurance that the firms
that market these products have established appropriate specifications
for release of the active ingredients or that the products are properly
formulated and manufactured to release their active ingredients to an
extent and at a rate that is both safe and effective.
III. Legal Status of Products Identified in This Notice
A. Extended-Release Products
Some of the products covered by this notice are sold as extended-
release products. Since 1959, FDA has concluded that all products in
extended-release dosage forms are new drugs requiring approved NDAs or
ANDAs before being marketed (24 FR 3756, May 9, 1959). Agency review of
individual applications for extended-release products is needed to
ensure that the finished product releases its active ingredient to an
extent and at a rate that is both safe, with a predictable and
controlled release of the dose, and effective, sustaining the intended
effect over the entire dosing interval. Firms submitting applications
are required to establish appropriate release specifications supported
by clinical evidence, along with data showing that the finished product
as manufactured by the firm releases its active ingredient according to
those specifications.
The Agency's determination that all products in timed-release
dosage form are new drugs requiring approved applications is codified
at 21 CFR 310.502(a)(14). Approval of an NDA under section 505(b) of
the FD&C Act (21 U.S.C. 355(b)) or an ANDA under section 505(j) of the
FD&C Act is required as a condition for marketing all such products.
The unapproved extended-release drug products subject to this
notice are all labeled for prescription use. Prescription drugs are
defined under section 503(b)(1)(A) of the FD&C Act (21 U.S.C.
353(b)(1)(A)) as drugs that, because of toxicity or other potentially
harmful effect, are not safe to use except under the supervision of a
practitioner licensed by law to administer such drugs.\5\ A drug that
is labeled as a prescription drug but does not meet the definition of
``prescription drug'' under section 503(b)(1)(A) of the FD&C Act is
misbranded under section 503(b)(4)(B) of the FD&C Act (21 U.S.C.
353(b)(4)(B)). Thus, if an extended-release drug covered by this notice
is labeled as a prescription product, but does not meet the definition
in section 503(b)(1)(A) of the FD&C Act, it is misbranded under section
503(b)(4)(B) of the FD&C Act. If an extended-release drug subject to
this notice actually meets the definition of ``prescription drug''
under 503(b)(1)(A), it is misbranded under section 502(f)(1) of the
FD&C Act (21 U.S.C. 352(f)(1)), in that it fails to bear adequate
directions for use. An approved prescription drug can satisfy the
``adequate directions for use'' requirement if it bears the NDA-
approved labeling (Sec. Sec. 201.100(c)(2) and 201.115 (21 CFR
201.100(c)(2) and 201.115)). Because the unapproved prescription
extended-release drug products covered by this notice do not have
approved applications with approved labeling, they fail to bear
``adequate directions for use,'' and are misbranded under section
502(f)(1) of the FD&C Act.
---------------------------------------------------------------------------
\5\ The definition of ``prescription drug'' also includes a drug
that is limited by an approved application to use under the
professional supervision of a licensed practitioner (21 U.S.C.
353(b)(1)(B)). This prong of the definition obviously does not apply
to the unapproved extended-release drug products covered by this
notice.
---------------------------------------------------------------------------
B. Tannates
Some of the products covered by this notice contain active
ingredients that are in tannate salt form (tannate drugs). FDA has
reviewed the publicly available scientific literature on these
ingredients, and has determined that unapproved oral drugs labeled for
prescription use and offered for relief of symptoms of cold, cough, or
allergy that contain the following ingredients are not generally
recognized as safe and effective (GRASE): Brompheniramine tannate;
carbetapentane tannate; carbinoxamine tannate; chlorpheniramine
tannate; dexbrompheniramine tannate; dexchlorpheniramine tannate;
dextromethorphan tannate; diphenhydramine tannate; ephedrine tannate;
phenylephrine tannate; pseudoephedrine tannate; pyrilamine tannate; and
triprolidine tannate. Therefore, products containing these ingredients
are new drugs within the meaning of section 201(p) of the FD&C Act, and
require approved NDAs or ANDAs before marketing.
The unapproved tannate drug products subject to this notice are all
labeled for prescription use. Prescription drugs are defined under
section 503(b)(1)(A) of the FD&C Act as drugs that, because of toxicity
or other potentially harmful effect, are not safe to use except under
the supervision of a practitioner licensed by law to administer such
drugs.\6\ A drug that is
[[Page 11796]]
labeled as a prescription drug but does not meet the definition of
``prescription drug'' under section 503(b)(1)(A) of the FD&C Act is
misbranded under section 503(b)(4)(B) of the FD&C Act. Thus, if a
tannate drug covered by this notice is labeled as a prescription
product, but does not meet the definition in section 503(b)(1)(A) of
the FD&C Act, it is misbranded under section 503(b)(4)(B) of the FD&C
Act. If a tannate drug covered by this notice actually meets the
definition of ``prescription drug,'' it is misbranded under section
502(f)(1) of the FD&C Act, in that it fails to bear adequate directions
for use. An approved prescription drug can satisfy the ``adequate
directions for use'' requirement if it bears the NDA-approved labeling
(21 CFR 201.100(c)(2) and 201.115). Because the unapproved prescription
tannate drug products covered by this notice do not have approved
applications with approved labeling, they fail to bear ``adequate
directions for use,'' and are misbranded under section 502(f)(1) of the
FD&C Act.
---------------------------------------------------------------------------
\6\ The definition of ``prescription drug'' also includes a drug
that is limited by an approved application to use under the
professional supervision of a licensed practitioner (21 U.S.C.
353(b)(1)(B)). This prong of the definition obviously does not apply
to the unapproved tannate drug products covered by this notice.
---------------------------------------------------------------------------
C. Immediate-Release Products
The remaining unapproved oral products covered by this notice are
immediate-release products labeled for prescription use and offered for
relief of symptoms associated with cold, cough, or allergy. The
immediate-release products fall into the following three categories:
1. Drugs Inappropriately Labeled for Prescription Use
A small number of the immediate-release products covered by this
notice conform to the requirements of the final OTC monograph at 21 CFR
part 341, ``Cold, Cough, Allergy, Bronchodilator, and Antiasthmatic
Drug Products for Over-the-Counter Human Use'' (the final OTC Cold
Cough monograph), except that they are labeled for prescription use
only. Section 503(b)(1) of the FD&C Act establishes the definition of a
``prescription drug.'' Drug products that do not meet the definition of
a prescription drug but are labeled for prescription use are misbranded
under section 503(b)(4)(B) of the FD&C Act. If these drugs conform to
the requirements of the final OTC Cold Cough monograph, they are not
new drugs and they do not require an approved NDA or ANDA in order to
be legally marketed OTC.\7\
---------------------------------------------------------------------------
\7\ In addition to any other applicable requirements, firms that
manufacture OTC drugs must comply with the labeling requirements at
21 CFR 201.66.
---------------------------------------------------------------------------
2. Drugs Containing Ingredients Included in the Final OTC Cold Cough
Monograph But Labeled With Nonconforming Indications or Dosing Regimens
The majority of the immediate-release products covered by this
notice are labeled for prescription use and contain ingredients that
are included in the final OTC Cold Cough monograph, but have
indications, dosing regimens, or both, that are inconsistent with that
monograph. FDA has reviewed the indications and dosing regimens (dosing
intervals and dosage amounts) in the labeling of over 300 such
products, and has reviewed the publicly available scientific literature
for studies of these products.\8\ In no case did FDA find literature
sufficient to support a determination that one of these products was
GRASE for relief of symptoms of cold, cough, or allergy. Therefore,
these products are all ``new drugs'' within the meaning of section
201(p) of the FD&C Act, that require approved NDAs or ANDAs before
marketing.
---------------------------------------------------------------------------
\8\ The over 300 products reviewed by FDA represent all products
in this category that FDA was able to identify.
---------------------------------------------------------------------------
The unapproved immediate-release drug products subject to this
notice that contain ingredients that are included in the final OTC Cold
Cough monograph, but with indications, dosing regimens, or both, that
are inconsistent with that monograph, are all labeled for prescription
use. Prescription drugs are defined under section 503(b)(1)(A) of the
FD&C Act as drugs that, because of toxicity or other potentially
harmful effect, are not safe to use except under the supervision of a
practitioner licensed by law to administer such drugs.\9\ A drug that
is labeled as a prescription drug but does not meet the definition of
``prescription drug'' under section 503(b)(1)(A) of the FD&C Act is
misbranded under section 503(b)(4)(B) of the FD&C Act. Thus, if an
immediate-release drug covered by this notice is labeled as a
prescription product, but does not meet the definition in section
503(b)(1)(A), it is misbranded under section 503(b)(4)(B). If an
immediate-release drug covered by this notice does meet the definition
of ``prescription drug'' in 503(b)(1)(A), it is misbranded under
section 502(f)(1) of the FD&C Act, in that it fails to bear adequate
directions for use. An approved prescription drug can satisfy the
``adequate directions for use'' requirement if it bears the NDA-
approved labeling (Sec. Sec. 201.100(c)(2) and 201.115). Because the
unapproved prescription immediate-release drug products subject to this
notice that contain ingredients that are included in the final OTC Cold
Cough monograph, but with indications, dosing regimens, or both, that
are inconsistent with that monograph, do not have approved applications
with approved labeling, they fail to bear ``adequate directions for
use,'' and are misbranded under section 502(f)(1).
---------------------------------------------------------------------------
\9\ The definition of ``prescription drug'' also includes a drug
that is limited by an approved application to use under the
professional supervision of a licensed practitioner (21 U.S.C.
353(b)(1)(B)). This prong of the definition obviously does not apply
to the unapproved immediate-release drug products subject to this
notice and containing ingredients that are included in the final OTC
Cold Cough monograph, but with indications, dosing regimens, or
both, that are inconsistent with that monograph.
---------------------------------------------------------------------------
3. Drugs Containing Ingredients Not Included in the Final OTC Cold
Cough Monograph
The remaining immediate-release products covered by this notice are
labeled for prescription use and contain active ingredients that are
not included in the final OTC Cold Cough monograph. FDA has reviewed
the publicly available scientific literature on these ingredients, and
has determined that the products covered by this notice and offered for
relief of symptoms of cold, cough, or allergy that contain the
following ingredients are not GRASE: Atropine; carbetapentane;
cyproheptadine; dyphylline; hyoscyamine; methscopolamine nitrate;
phenyltoloxamine; potassium guaiacosulfonate; promethazine; and
scopolamine. Therefore, products covered by this notice containing
these ingredients and marketed for relief of symptoms of cold, cough,
or allergy are new drugs within the meaning of section 201(p) of the
FD&C Act, and require approved NDAs or ANDAs prior to marketing.
The unapproved immediate-release drug products that are subject to
this notice and that contain active ingredients not included in the
final OTC Cold Cough monograph are all labeled for prescription use.
Prescription drugs are defined under section 503(b)(1)(A) of the FD&C
Act as drugs that, because of toxicity or other potentially harmful
effect, are not safe to use except under the supervision of a
practitioner licensed by law to administer such drugs.\10\ A drug that
is
[[Page 11797]]
labeled as a prescription drug but does not meet the definition of
``prescription drug'' under section 503(b)(1)(A) is misbranded under
section 503(b)(4)(B) of the FD&C Act. Thus, if an immediate-release
drug covered by this notice is labeled as a prescription product, but
does not meet the definition in section 503(b)(1)(A), it is misbranded
under section 503(b)(4)(B). If a drug covered by this notice meets the
definition of ``prescription drug'' in 503(b)(1)(A), it is misbranded
under section 502(f)(1) of the FD&C Act, in that it fails to bear
adequate directions for use. An approved prescription drug can satisfy
the ``adequate directions for use'' requirement if it bears the NDA-
approved labeling (Sec. Sec. 201.100(c)(2) and 201.115). Because the
unapproved prescription immediate-release drug products covered by this
notice that contain active ingredients not included in the final OTC
Cold Cough monograph do not have approved applications with approved
labeling, they fail to bear ``adequate directions for use,'' and are
misbranded under section 502(f)(1) of the FD&C Act.
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\10\ The definition of ``prescription drug'' also includes a
drug that is limited by an approved application to use under the
professional supervision of a licensed practitioner (21 U.S.C.
353(b)(1)(B)). This prong of the definition obviously does not apply
to the unapproved immediate-release drug products covered by this
notice that contain active ingredients not included in the final OTC
Cold Cough monograph.
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IV. Notice of Enforcement Action
Although not required to do so by the Administrative Procedure Act,
the FD&C Act, or any rules issued under its authority, or for any other
legal reason, FDA is providing this notice to persons \11\ who are
marketing unapproved and misbranded oral drug products labeled for
prescription use and offered for relief of symptoms relating to cold,
cough, or allergy that the Agency intends to take enforcement action
against such products and those who manufacture them or cause them to
be manufactured or shipped in interstate commerce.
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\11\ A ``person'' includes individuals, partnerships,
corporations, and associations (21 U.S.C. 321(e)).
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Manufacturing or shipping the drug products covered by this notice
can result in enforcement action, including seizure, injunction, or
other judicial or administrative proceeding. Consistent with policies
described in the Agency's guidance entitled ``Marketed Unapproved
Drugs--Compliance Policy Guide'' (the Marketed Unapproved Drugs CPG)
(https://www.fda.gov/downloads/Drugs/GuidanceComplianceRegulatoryInformation/Guidances/UCM070290.pdf), the
Agency does not expect to issue a warning letter or any other further
warning to firms marketing drug products covered by this notice prior
to taking enforcement action. The Agency also reminds firms that, as
stated in the Marketed Unapproved Drugs CPG, any unapproved drug
marketed without a required approved application is subject to Agency
enforcement action at any time. The issuance of this notice does not in
any way obligate the Agency to issue similar notices or any notice in
the future regarding marketed unapproved drugs.\12\
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\12\ The Agency's general approach for dealing with these
products in an orderly manner is spelled out in the Marketed
Unapproved Drugs CPG. That CPG, however, provides notice that any
product that is being marketed illegally, and the persons
responsible for causing the illegal marketing of the product, are
subject to FDA enforcement action at any time.
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As described in the Marketed Unapproved Drugs CPG, the Agency may,
at its discretion, identify a period of time during which the Agency
does not intend to initiate an enforcement action against a currently
marketed unapproved drug solely on the ground that it lacks an approved
application under section 505 of the FD&C Act. With respect to drug
products covered by this notice, the Agency intends to exercise its
enforcement discretion for only a limited period of time because there
are safety issues with respect to the products covered by this notice
and numerous marketed products that have approved applications or
comply with the applicable OTC drug final monograph are offered to
treat symptoms relating to cold, cough, and allergy. Therefore, the
Agency intends to implement this notice as follows.
For the effective date of this notice, see the DATES section of
this document. FDA intends to take enforcement action against any drug
product covered by this notice that is not listed with the Agency in
full compliance with section 510 of the FD&C Act (21 U.S.C. 360) before
March 2, 2011, and is manufactured, shipped, or otherwise introduced or
delivered for introduction into interstate commerce by any person on or
after March 3, 2011. FDA also intends to take enforcement action
against any drug product covered by this notice that is listed with FDA
in full compliance with section 510 of the FD&C Act but is not being
commercially used or sold \13\ in the United States on March 2, 2011
and that is manufactured, shipped, or otherwise introduced or delivered
for introduction into interstate commerce by any person on or after
March 3, 2011.
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\13\ For purposes of this notice, the term ``commercially used
or sold'' means that the product has been used in a business or
activity involving retail or wholesale marketing and/or sale.
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However, for drug products covered by this notice that are
commercially used or sold in the United States, have a National Drug
Code (NDC) number listed with FDA, and are in full compliance with
section 510 of the FD&C Act before March 2, 2011 (``currently marketed
and listed''), the Agency intends to exercise its enforcement
discretion as follows. FDA intends to initiate enforcement action
against any currently marketed and listed product covered by this
notice that is manufactured on or after June 1, 2011 or that is shipped
on or after August 30, 2011.\14\ Further, FDA intends to take
enforcement action against any person who manufactures or ships such
products after these dates. Any person who has submitted or submits an
application for a drug product covered by this notice but has not
received approval must comply with this notice.
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\14\ If FDA finds it necessary to take enforcement action
against a product covered by this notice, the agency may take action
relating to all of the defendant's other violations of the FD&C Act
at the same time. For example, if a firm continues to manufacture or
market a product covered by this notice after the applicable
enforcement date has passed, to preserve limited agency resources,
FDA may take enforcement action relating to all of the firm's
unapproved drugs that require applications at the same time. (See,
e.g., United States v. Sage Pharmaceuticals, 210 F.3d 475, 479-480
(5th Cir. 2000) (permitting the Agency to combine all violations of
the act in one proceeding, rather than taking action against
multiple violations of the act in ``piecemeal fashion'').)
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The Agency, however, does not intend to exercise its enforcement
discretion as outlined previously if the following apply: (1) A
manufacturer or distributor of drug products covered by this notice is
violating other provisions of the FD&C Act, including, but not limited
to, violations related to FDA's current good manufacturing practices,
adverse drug event reporting, labeling or misbranding requirements
other than those identified in this notice or (2) it appears that a
firm, in response to this notice, increases its manufacture or
interstate shipment of drug products covered by this notice above its
usual volume during these periods.
Nothing in this notice, including FDA's intent to exercise its
enforcement discretion, alters any person's liability or obligations in
any other enforcement action, or precludes the Agency from initiating
or proceeding with enforcement action in connection with any other
alleged violation of the FD&C Act, whether or not related to a drug
product covered by this notice. Similarly, a person who is or becomes
enjoined from marketing unapproved or misbranded drugs may not resume
marketing of such products based on FDA's exercise of enforcement
discretion that is set forth in this notice.
Drug manufacturers and distributors should be aware that the Agency
is exercising its enforcement discretion as described previously only
in regard to
[[Page 11798]]
drug products covered by this notice that are marketed under an NDC
number listed with the Agency in full compliance with section 510 of
the FD&C Act before March 2, 2011. As previously stated, drug products
covered by this notice that are currently marketed but not listed with
the Agency on the date of this notice must, as of the effective date of
this notice, have approved applications prior to their shipment in
interstate commerce. Moreover, any person or firm that has submitted or
submits an application but has yet to receive approval for such
products is still responsible for full compliance with this notice.
V. Discontinued Products
Some firms may have previously discontinued the manufacturing or
distribution of products covered by this notice without removing them
from the listing of their products under section 510(j) of the FD&C
Act. Other firms may discontinue manufacturing or marketing listed
products in response to this notice. Firms that wish to notify the
Agency of product discontinuation should send a letter, signed by the
firm's chief executive officer, fully identifying the discontinued
product(s), including NDC number(s), and stating that the product(s)
has (have) been discontinued. The letter should be sent to Sakineh
Walther (see ADDRESSES). Firms should also update the listing of their
products under section 510(j) of the FD&C Act to reflect
discontinuation of products covered by this notice. FDA plans to rely
on its existing records, including its drug listing records, or other
available information when it targets violations for enforcement
action.
This notice is issued under the Federal Food, Drug, and Cosmetic
Act (sections 502 and 505 (21 U.S.C. 352 and 355)) and under authority
delegated to the Assistant Commissioner for Policy under section
1410.21 of the FDA Staff Manual Guide.
Dated: February 22, 2011.
Leslie Kux,
Acting Assistant Commissioner for Policy.
[FR Doc. 2011-4703 Filed 3-2-11; 8:45 am]
BILLING CODE 4160-01-P