Microbiology Devices; Reclassification of Influenza Virus Antigen Detection Test Systems Intended for Use Directly With Clinical Specimens, 3609-3619 [2017-00199]
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Federal Register / Vol. 82, No. 8 / Thursday, January 12, 2017 / Rules and Regulations
transport of the Samsung Galaxy Note 7
device, in particular, immediately prior
to boarding is no longer warranted, due
to the extensive efforts by Samsung and
U.S. wireless providers to recall all
Samsung Galaxy Note 7 devices and to
make users aware the Samsung Galaxy
Note 7 device is forbidden from
transportation by air. Moreover, on
December 9, 2016, Samsung reported on
its Web site that more than 93 percent
of all recalled Samsung Galaxy Note 7
devices had been returned to Samsung
and that it would release a software
update starting on December 19, 2016
that would prevent U.S. Samsung
Galaxy Note 7 devices from charging
and eliminate their ability to work as
mobile devices.1 We understand that
major U.S. wireless providers will push
out this update on or before January 8,
2017. T Mobile reported that it would
push the software update on December
27, 2016.2 Verizon Wireless and AT&T
both reported that they would push the
software update on January 5, 2017,3
and Sprint reported that it would push
the update on January 8, 2017.4 We
think that these efforts to render U.S.
Samsung Galaxy Note 7 devices
inoperable, in addition to the ongoing
recall and notification efforts, will
decrease the likelihood that Samsung
Galaxy Note 7 devices will be brought
on board aircraft. In addition, the
hazardous materials regulations (HMR;
49 CFR parts 171–180) provide a
systematic framework to protect the safe
transportation of hazardous materials
that includes procedures for
notification, handling, and reporting of
discrepancies and incidents at air
passenger facilities and cargo facilities.
Remedial Action
To eliminate or abate the imminent
hazard:
(1) Persons covered by this Amended
Order shall not transport, nor offer for
transportation, via air any Samsung
Galaxy Note 7 device.
(2) Air carriers are required to handle
Samsung Galaxy Note 7 devices
consistently with other forbidden
hazardous materials under 49 CFR parts
173 and 175, and to deny boarding to a
passenger in possession of a Samsung
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1 https://news.samsung.com/us/2016/12/09/
samsung-taking-bold-steps-to-increase-galaxynote7-device-returns/; see also https://
www.samsung.com/us/note7recall/.
2 https://explore.t-mobile.com/samsung-galaxynote7-recall.
3 https://www.verizonwireless.com/support/
samsung-galaxy-note7-recall-faqs/; https://
www.att.com/esupport/article.html#!/wireless/
KM1122948.
4 https://support.sprint.com/support/article/
FAQs-about-the-Samsung-Galaxy-Note7-recall/
817d4190-b2e2-43c8-b549-97b3553d5c24.
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Galaxy Note 7 device unless and until
the passenger divests themselves and
carry-on or checked baggage of the
Samsung Galaxy Note 7 device.
(3) Persons covered by this Amended
Order who inadvertently bring a
prohibited Samsung Galaxy Note 7
device aboard an aircraft must
immediately power off the device, leave
it powered off until no longer aboard the
aircraft, not use or charge the device
while aboard the aircraft, protect the
device from accidental activation,
including disabling any features that
may turn on the device, such as alarm
clocks, and keep the device on their
person and not in the overhead
compartment, seat back pocket, nor in
any carry-on baggage, for the duration of
the flight.
(4) When a flight crew member
identifies that a passenger is in
possession of a Samsung Galaxy Note 7
device while the aircraft is in flight, the
crew member must instruct the
passenger to power off the device, not
use or charge the device while aboard
the aircraft, protect the device from
accidental activation, including
disabling any features that may turn on
the device, such as alarm clocks, and
keep the device on their person and not
in the overhead compartment, seat back
pocket, nor in any carry-on baggage, for
the duration of the flight.
Rescission of This Amended Order
This Amended Order remains in
effect until the Secretary determines
that an imminent hazard no longer
exists or a change in applicable statute
or federal regulation occurs that
supersedes the requirements of this
Amended Order, in which case the
Secretary will issue a Rescission Order.
Failure To Comply
Any person failing to comply with
this Amended Order is subject to civil
penalties of up to $179,933 for each
violation for each day they are found to
be in violation (49 U.S.C. 5123). A
person violating this Order may also be
subject to criminal prosecution, which
may result in fines under title 18,
imprisonment of up to ten years, or both
(49 U.S.C. 5124).
Right To Review
Pursuant to 49 U.S.C. 5121(d)(3) and
in accordance with section 554 of the
Administrative Procedure Act (APA), 5
U.S.C. 500 et seq., a review of this
action may be filed. Any petition
seeking relief must be filed within 20
calendar days of the date of this order
(49 U.S.C. 5121(d)(3)), and addressed to
U.S. DOT Dockets, U.S. Department of
Transportation, 1200 New Jersey
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Frm 00009
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3609
Avenue SE., Room W12–140,
Washington, DC 20590 (https://
Regulations.gov). Furthermore, a
petition for review must state the
material facts at issue which the
petitioner believes dispute the existence
of an imminent hazard and must
include all evidence and exhibits to be
considered. The petition must also state
the relief sought. Within 30 days from
the date the petition for review is filed,
the Secretary must approve or deny the
relief in writing; or find that the
imminent hazard continues to exist, and
extend the original Emergency Order. In
response to a petition for review, the
Secretary may grant the requested relief
in whole or in part; or may order other
relief as justice may require (including
the immediate assignment the case to
the Office of Hearings for a formal
hearing on the record).
Emergency Contact Official
If you have any questions concerning
this Amended Emergency Restriction/
Prohibition Order, you should call
PHMSA Hazardous Materials
Information Center at 1–800–467–4922
or email at phmsa.hm-infocenter@
dot.gov.
Issued in Washington, DC, on January 9,
2017.
Reginald C. Govan,
Chief Counsel, Federal Aviation
Administration.
[FR Doc. 2017–00555 Filed 1–9–17; 4:15 pm]
BILLING CODE 4910–13–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Food and Drug Administration
21 CFR Part 866
[Docket No. FDA–2014–N–0440]
Microbiology Devices; Reclassification
of Influenza Virus Antigen Detection
Test Systems Intended for Use Directly
With Clinical Specimens
AGENCY:
Food and Drug Administration,
HHS.
ACTION:
Final order.
The Food and Drug
Administration (FDA) is reclassifying
antigen based rapid influenza virus
antigen detection test systems intended
to detect influenza virus directly from
clinical specimens that are currently
regulated as influenza virus serological
reagents from class I into class II with
special controls and into a new device
classification regulation.
SUMMARY:
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This order is effective February
13, 2017. See further discussion in
section IV, ‘‘Implementation Strategy.’’
FOR FURTHER INFORMATION CONTACT:
Stefanie Akselrod, Center for Devices
and Radiological Health, Food and Drug
Administration, 10903 New Hampshire
Ave., Bldg. 66, Rm. 5438, Silver Spring,
MD 20993–0002, 301–796–6188.
SUPPLEMENTARY INFORMATION:
DATES:
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I. Regulatory Authorities
The Federal Food, Drug, and Cosmetic
Act (the FD&C Act), as amended by the
Medical Device Amendments of 1976
(the 1976 amendments) (Pub. L. 94–
295), the Safe Medical Devices Act of
1990 (Pub. L. 101–629), the Food and
Drug Administration Modernization Act
of 1997 (FDAMA) (Pub. L. 105–115), the
Medical Device User Fee and
Modernization Act of 2002 (Pub. L. 107–
250), the Medical Devices Technical
Corrections Act (Pub. L. 108–214), the
Food and Drug Administration
Amendments Act of 2007 (Pub. L. 110–
85), and the Food and Drug
Administration Safety and Innovation
Act (FDASIA) (Pub. L. 112–144), among
other amendments, established a
comprehensive system for the regulation
of medical devices intended for human
use. Section 513 of the FD&C Act (21
U.S.C. 360c) established three categories
(classes) of devices, reflecting the
regulatory controls needed to provide
reasonable assurance of their safety and
effectiveness. The three categories of
devices are class I (general controls),
class II (special controls), and class III
(premarket approval).
Under section 513(d) of the FD&C Act,
devices that were in commercial
distribution before the enactment of the
1976 amendments on May 28, 1976
(generally referred to as preamendments
devices) are classified after FDA has: (1)
Received a recommendation from a
device classification panel (an FDA
advisory committee); (2) published the
panel’s recommendation for comment,
along with a proposed regulation
classifying the device; and (3) published
a final regulation classifying the device.
FDA has classified most
preamendments devices under these
procedures.
Devices that were not in commercial
distribution prior to May 28, 1976
(generally referred to as
‘‘postamendments devices’’), are
automatically classified by section
513(f) of the FD&C Act into class III
without any FDA rulemaking process.
Those devices remain in class III and
require premarket approval unless, and
until, the device is reclassified into class
I or II or FDA issues an order finding the
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device to be substantially equivalent, in
accordance with section 513(i) of the
FD&C Act, to a predicate device that
does not require premarket approval.
Under section 513(i) of the FD&C Act,
a device is substantially equivalent if it
has the same intended use and
technological characteristics as a
predicate device, or has the same
intended use as the predicate device
and has different technological
characteristics, but data demonstrate
that the new device is as safe and
effective as the predicate device and
does not raise different questions of
safety or effectiveness than the predicate
device. The Agency determines whether
new devices are substantially equivalent
to predicate devices by means of
premarket notification (510(k))
procedures in section 510(k) of the
FD&C Act (21 U.S.C. 360(k)) and part
807 (21 CFR part 807).
FDAMA added section 510(m) to the
FD&C Act. Section 510(m) of the FD&C
Act provides that a class II device may
be exempted from the premarket
notification requirements under section
510(k) of the FD&C Act, if the Agency
determines that premarket notification
is not necessary to assure the safety and
effectiveness of the device.
On July 9, 2012, FDASIA was enacted.
Section 608(a) of FDASIA amended
section 513(e) of the FD&C Act,
changing the mechanism for
reclassifying a device from rulemaking
to an administrative order. Section
513(e) of the FD&C Act provides that
FDA may, by administrative order,
reclassify a device based upon ‘‘new
information.’’ FDA can initiate a
reclassification under section 513(e) of
the FD&C Act or an interested person
may petition FDA to reclassify an
eligible device type. The term ‘‘new
information,’’ as used in section 513(e)
of the FD&C Act, includes information
developed as a result of a reevaluation
of the data before the Agency when the
device was originally classified, as well
as information not presented, not
available, or not developed at that time.
See, e.g., Holland-Rantos Co. v. U.S.
Dep’t of Health, Educ., and Welfare, 587
F.2d 1173, 1174 n.1 (D.C. Cir. 1978);
Upjohn v. Finch, 422 F.2d 944 (6th Cir.
1970); Bell v. Goddard, 366 F.2d 177
(7th Cir. 1966).
Reevaluation of the data previously
before the Agency is an appropriate
basis for subsequent action where the
reevaluation is made in light of newly
available authority. See Bell, 366 F.2d at
181; Ethicon, Inc. v. FDA, 762 F. Supp.
382, 388–91 (D.D.C. 1991), or in light of
changes in ‘‘medical science’’ (Upjohn,
422 F.2d at 951). Whether data before
the Agency are old or new data, the
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‘‘new information’’ to support
reclassification under section 513(e) of
the FD&C Act must be ‘‘valid scientific
evidence,’’ as defined in section
513(a)(3) of the FD&C Act and 21 CFR
860.7(c)(2). See, e.g., Gen. Med. Co. v.
FDA, 770 F.2d 214 (D.C. Cir. 1985);
Contact Lens Mfrs. Ass’n. v. FDA, 766
F.2d 592 (D.C. Cir.), cert. denied, 474
U.S. 1062 (1986).
Section 513(e)(1) of the FD&C Act sets
forth the process for issuing a final order
for reclassifying a device under that
section. Specifically, prior to the
issuance of a final order reclassifying a
device, the following must occur: (1)
Publication of a proposed order in the
Federal Register; (2) a meeting of a
device classification panel described in
section 513(b) of the FD&C Act; and (3)
consideration of comments to a public
docket. FDA published a proposed order
to reclassify this device type in the
Federal Register of May 22, 2014 (79 FR
29387). FDA has held a meeting of a
device classification panel described in
section 513(b) of the FD&C Act with
respect to antigen based rapid influenza
diagnostic test (RIDT) systems and has
also received and considered comments
on the proposed order, as discussed in
section II. Therefore, FDA has met the
requirements under section 513(e)(1) of
the FD&C Act.
II. Public Comments in Response to the
Proposed Order
On May 22, 2014, FDA published a
proposed order to reclassify antigen
based RIDTs intended to detect
influenza virus antigen directly from
clinical specimens that are currently
regulated as influenza virus serological
reagents under § 866.3330 (21 CFR
866.3330) from class I into class II with
special controls and into a new device
classification regulation (79 FR 29387).
The Agency received comments on
the proposed order from several entities.
Comments were received from device
industry manufacturers, a consumer
group, professional organizations, a
health care organization, a device
manufacturers association, and an
individual consumer.
To make it easier to identify
comments and our responses, the word
‘‘Comment’’ and a comment number
appear in parentheses before each
comment’s description, and the word
‘‘Response’’ in parentheses precedes
each response. Similar comments are
grouped together under the same
number. Specific issues raised by the
comments and the Agency’s responses
follow.
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A. General Comments
(Comment 1) Commenters expressed
support for the proposed order to
reclassify antigen based RIDTs from
class I to class II with special controls,
noting that there is evidence that the
currently available antigen based RIDTs,
which are widely used in non-clinical
laboratory settings such as physician
office laboratories, are performing
poorly, resulting in many misdiagnosed
cases of influenza. Commenters noted
that a misdiagnosis of influenza may
have serious consequences, including:
Inappropriate use of antibiotics and
failure to use antiviral therapy, which
may be critical for some patients,
following false negative results; the
unnecessary or inappropriate
prescribing of antiviral drugs following
false positive results; ineffective
infection control measures; and an
overall increased public health burden,
such as increased rate of hospitalization
and return doctor visits. Several
commenters expressed a concern
regarding frequent antigenic changes in
the circulating strains as the influenza
virus evolves and agreed with the new
requirement that manufacturers conduct
annual analytical testing of circulating
strains in an effort to monitor the
performance of these tests over time.
Overall, there was a general consensus
among the commenters that the
proposed special controls address and
mitigate the risks to health.
(Response) FDA agrees that
reclassification of antigen based RIDTs
into class II as outlined in this order
will help to improve the overall quality
of testing for influenza. The new
minimum performance requirements for
these tests detecting influenza virus
antigens are expected to lower the
number of misdiagnosed influenza
infections by increasing the number of
devices that can reliably detect the
influenza virus. In addition, the special
controls requiring annual and
emergency analytical reactivity testing
provide a process for continued
monitoring of the performance of
antigen based RIDTs. As part of that
process, the Centers for Disease Control
and Prevention (CDC) and FDA will
collaborate in efforts to ensure that there
is an influenza virus analytical
reactivity test panel available to all
manufacturers of antigen based RIDTs
for evaluation of the analytical reactivity
of their assays with circulating viruses
on an annual basis.
(Comment 2) One commenter noted
that under the FD&C Act, as amended
by FDASIA, FDA is able to reclassify a
device via an ‘‘order rather than
rulemaking,’’ but the commenter
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expressed a concern that FDA seems to
consider holding a panel meeting after
the issuance of a proposed order as
‘‘discretionary rather than mandatory.’’
The commenter urged FDA to hold
panel meetings after the issuance of
proposed reclassification orders in order
to allow the panel to discuss the
proposal after it has been issued. The
commenter stated that holding a panel
meeting following issuance of a
proposed reclassification order is a
critical element of the process reforms
enacted by Congress. In addition, the
commenter expressed a concern that the
Agency has not obtained sufficient
feedback from physicians who
commonly use the rapid influenza tests
in their practice. Therefore, the
commenter suggested that FDA should
convene another panel meeting and
include these physicians to provide
critical expertise and perspective on the
overall evaluation of FDA’s proposed
plans on test reclassification, including
the analytical reactivity testing protocol,
specifications, and qualification of
specimens.
(Response) The June 13, 2013,
Microbiology Advisory Panel (‘‘Panel’’)
meeting considered all relevant
scientific issues associated with the
proposed order for the antigen based
RIDTs and recommended reclassifying
these devices into class II (special
controls). The Panel included six
physicians and seven researchers who
provided input that FDA considered for
purposes of the proposed order,
including the proposed special controls.
Each of the Panel members is
considered an authority on matters of
influenza infection, treatment,
epidemiology, and/or biology.
Representatives from CDC and the
Association of Public Health
Laboratories presented extensive data
on the use of the currently available
antigen based RIDTs and the outcomes
related to patients that support the
conclusion that there has been poor
performance of antigen based RIDTs in
the medical practice. The Panel
recommended the reclassification of
antigen based RIDTs. FDA is not aware
of any significant changes in benefits or
risks relating to the antigen based RIDTs
that have been identified since the June
13, 2013, Panel meeting. Stakeholders
had an opportunity to provide feedback
to the proposed order in their
comments, and that feedback has been
largely positive. The public comments
are addressed here and are also
available to view by request or on
https://www.regulations.gov.
The process followed by FDA in
reclassifying antigen based RIDTs is in
accordance with the applicable statutory
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3611
provisions, which were amended by
FDASIA. Section 608 of FDASIA
amended section 513(e) of the FD&C Act
by changing the reclassification process
from rulemaking to an administrative
order process. The amendments to
section 513(e) of the FD&C Act made by
FDASIA require, in relevant part, that
issuance of an administrative order
reclassifying a device be preceded by a
proposed order and a meeting of a
device classification panel.
As amended, section 513(e) of the
FD&C Act does not prescribe when
these two events (the panel meeting and
proposed order) must occur in relation
to each other. Therefore, under this
provision, the Agency may hold a panel
meeting either before or after the
issuance of a proposed reclassification
order. This approach is consistent with
the prior panel provision in section
513(e) of the FD&C Act, which provided
for FDA, at its discretion, to secure a
panel recommendation prior to the
promulgation of a reclassification rule.
Generally, for future reclassifications
under section 513(e) of the FD&C Act for
which a meeting of a device
classification panel has not yet
occurred, FDA expects a proposed
reclassification order will be issued
prior to the panel meeting required
under section 513(e).
B. Transition Period
(Comment 3) While one commenter
expressed agreement that the proposed
1 year timeframe should be sufficient for
manufacturers to bring devices already
on the market into compliance with the
special controls, another commenter
suggested that FDA consider providing
additional transition time for the
implementation of the final order. The
commenter suggested that this would
assist manufacturers who are working in
good faith to meet the new requirements
to prepare submissions in advance of
the influenza season and would provide
for product continuity among health
care providers. The commenter did not
identify why 1 year would be an
insufficient period of transition time.
(Response) The Panel recommended
and FDA made the determination that
special controls, including the new
minimum performance requirements,
are needed, in addition to general
controls, to provide reasonable
assurance of safety and effectiveness for
antigen based RIDTs. We, therefore, do
not believe, given the risk that poor
performance of antigen based RIDTs
pose to public health, a delay in
implementation of more than 1 year is
appropriate. FDA also understands the
need for a balanced approach that takes
into account the time it will take for
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manufacturers to come into compliance
with the special controls and seeks to
avoid disruption of access to these
devices. With these considerations in
mind, FDA believes that a period of 1
year from the publication date of this
final order is appropriate for
manufacturers to come into compliance
with the special controls and for those
manufacturers whose currently legally
marketed devices do not meet the
minimum performance criteria to
prepare and submit a 510(k) for a new
or significantly changed or modified
device. Therefore, FDA does not intend
to enforce compliance with the special
controls with respect to currently legally
marketed antigen based RIDT devices
until 1 year after the date of publication
of this final order. FDA believes this
approach will help ensure the efficient
and effective implementation of the
final order.
C. Clinical Performance Standards and
Comparator Methods
(Comment 4) One comment
recommended a transition to one
common reference method comparator:
A molecular nucleic acid-based method.
The reasons cited for this
recommendation included: (1) A level
playing field for all manufacturers and
(2) better clarity for users, industry, and
the Agency. Another comment raised
concerns about the unreliability of the
culture results due to non-standardized
culture practices. In addition, a
commenter cautioned that providing
two minimum performance standards,
one when compared to viral culture and
another when compared to a nucleic
acid-based method, may have
unintended consequences: (1) Users
may make false assumptions and choose
a method based strictly on the presented
estimates of sensitivity and specificity
without noting the comparator reference
method that was used to derive the
performance measures and (2)
manufacturers may elect to conduct the
method comparison using both types of
reference methods and submit the
results in support of a 510(k) even if
only one of the comparisons meets the
minimum performance bar.
(Response) FDA appreciates the
concern over the potential consequences
of allowing for the two performance
levels based on different comparator
methods. The Agency carefully
considered the public feedback as well
as the implications of eliminating the
viral culture comparator method as an
acceptable comparator method used in
the evaluation of clinical performance of
antigen based RIDTs. Some important
considerations were: (1) A lack of
standardization of viral culture methods
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among various laboratories, (2) an
increasing difficulty in procuring the
services of a laboratory that is equipped
to perform viral culture procedures, (3)
the wide availability of FDA-cleared
nucleic acid-based comparator methods
among laboratories, (4) the
demonstrated high sensitivity of the
nucleic acid-based methods when
compared to viral culture method (when
properly performed) for the detection of
the influenza viruses, and (5) the
reliability of the viral culture method
when performed properly.
In addition, we recognize that
performance evaluation based on two
different comparators where each
detects a different analyte (viral culture
methods detect viable virus particles
while nucleic acid-based methods
detect the viral ribonucleic acids)
requires two sets of performance criteria
resulting in performance measures that
may not allow for direct comparison
between some devices. However, viral
culture method, when performed
correctly, has been shown historically to
be accurate and remains a valid
reference method for the detection of
influenza viruses. There are many
influenza detecting devices currently on
the market that have been evaluated
based on comparison with viral culture
comparator methods and met the
performance criteria set forth in
§ 866.3328(b)(1)(ii) (21 CFR 866.3328).
FDA has also stated expressly in the
special controls that a viral culture
comparator method used to demonstrate
that a device meets the minimum
performance criteria at
§ 866.3328(b)(1)(ii) must be correctly
performed.
At this time, the only currently
appropriate and FDA accepted
comparator methods are: (1) An FDAcleared nucleic acid-based test or (2) a
correctly performed viral culture
method. However, FDA recognizes that
a comparator method at least as accurate
as FDA-cleared nucleic acid-based tests
in the detection of the influenza viruses
may be established in the future. Based
on that recognition and the available
information, the final order clarifies that
other comparator methods, if currently
appropriate and FDA accepted, could be
used to demonstrate that the
performance criteria requirements in
§ 866.3328(b)(1)(i) have been met.
Therefore, if FDA determines at some
point in the future that another
comparator method at least as accurate
as FDA-cleared nucleic acid-based tests
has been established as a currently
appropriate comparator method,
sponsors of premarket submissions for
antigen based RIDTs would have the
option of demonstrating that their
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devices meet the minimum performance
criteria at § 866.3328(b)(1)(i) based on a
comparison to that additional currently
appropriate and FDA-accepted
comparator method.
(Comment 5) Another commenter
cautioned that the performance
estimates shown in the package inserts
for these tests may be biased due to the
fact that the data have been generated
under closely controlled clinical trial
procedures that use optimal sample
types, a time of sample collection post
onset of symptoms, proper sample
storage, and time to testing. Because
these conditions are often not
maintained in daily clinical use, the
true performance of these assays in ‘‘real
life’’ settings may be different.
(Response) FDA acknowledges that
the performance data in the device
labeling are estimates. All assays are
subject to variation under real-life
circumstances when the assays are used
in clinical practice. However, FDA
believes that premarket studies
demonstrating performance for these
devices should include a variety of
testing sites representative of the
settings in which the device will be
used and that a sufficient number of
clinical specimens should be tested to
arrive at reasonable measures of
confidence in the calculated
performance estimates (i.e., the lower
bound of the two-sided 95 percent
confidence interval (calculated by the
Score method)), as outlined in the
guidance document entitled
‘‘Establishing the Performance
Characteristics of In Vitro Diagnostic
Devices for the Detection or Detection
and Differentiation of Influenza
Viruses’’ (https://www.fda.gov/
RegulatoryInformation/Guidances/
ucm079171.htm) (‘‘2011 Influenza
Guidance document’’).
(Comment 6) One commenter
suggested that the proposed sensitivity
criteria for influenza A for antigen based
RIDTs, when using a molecular method
as a comparator method, are less
stringent than those recorded in the
2011 Influenza Guidance document.
The commenter stated that it:
[I]s not clear . . . why the Special Controls
for comparison to a molecular method has
become less stringent (sensitivity/PPA
estimate for Influenza A reduced from a point
estimate of 90 percent with a 95 percent CI
lower bound of 80 percent, to a point
estimate of 80 percent with a 95 percent CI
lower bound of 70 percent) when the
intention of a Special Controls document
would presumably be thought to make
comparative criteria tighter overall.
The commenter made a reference to
the statement in section 9.B.iii, pages
26–27 of the 2011 Influenza Guidance
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document (3d bullet), that states:
‘‘Nucleic acid-based tests should
demonstrate at least 90% sensitivity for
each analyte and each specimen type
with a lower bound of the two-sided
95% CI greater than 80%.’’ The
commenter also questioned whether this
determination was discussed and used
to scientifically justify the different
criteria for sensitive molecular methods,
including polymerase chain reaction,
which detect inactive virus in the
absence of viable viral particles in a
sample, and for viral detection in
general when using a molecular
comparative method.
(Response) The quoted statement from
the 2011 Influenza Guidance document
refers to the performance of nucleic
acid-based devices, while the
performance criteria stated in the May
22, 2014, proposed order (79 FR 29387
at 29390) (Section VIII. Special Controls:
. . . If the manufacturer chooses to
compare the device to an appropriate
molecular comparator method: The
positive percent agreement for the
device when testing for Influenza A and
Influenza B must be at least at the 80
percent point estimate with a lower
bound of the 95 percent confidence
interval that is greater than or equal to
70 percent) refer to RIDTs based on
antigen detection, which are historically
known to have a more limited
sensitivity due to the properties of the
enzyme immunoassay (EIA) technology.
The relevant citation pertaining to the
performance of the rapid devices
detecting influenza virus antigens may
be found in section 9.B.iii, pages 26–27
(1st and 2d bullet) of the 2011 Influenza
Guidance document, which states:
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For rapid devices detecting influenza A
virus antigen, we recommend that you
include a sufficient number of prospectively
collected samples for each specimen type
claimed to generate a sensitivity result with
a lower bound of the two-sided 95% CI
greater than 60%. . . . For rapid devices
detecting influenza B virus antigen, we
recommend that you include a sufficient
number of samples for each claimed
specimen type to generate a result for
sensitivity with a lower bound of the twosided 95% CI greater than 55%.
Nucleic acid-based assays that test for
influenza are regulated under
§ 866.3980, Respiratory viral panel
multiplex nucleic acid assay, and have
been held to higher performance criteria
than antigen based RIDTs because of
their demonstrated ability to reach
higher sensitivity for viral detection. By
establishing special controls with
minimum performance criteria for
antigen based RIDTs, this final order
raises the required minimum
performance criteria for viral detection
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by the EIA based tests beyond the
recommendations set forth in the 2011
Influenza Guidance Document. Nucleic
acid-based tests continue to be subject
to the document entitled ‘‘Class II
Special Controls Guidance: Respiratory
Viral Panel Multiplex Nucleic Acid
Assay’’ (https://www.fda.gov/Regulatory
Information/Guidances/
ucm180307.htm), except when the
device detects and differentiates
Influenza A subtype H1 and subtype H3,
in which case they are also subject to
the document entitled ‘‘Class II Special
Controls Guidance Document: Testing
for Detection and Differentiation of
Influenza A Virus Subtypes Using
Multiplex Nucleic Acid Assays’’ (https://
www.fda.gov/downloads/medical
devices/deviceregulationandguidance/
guidancedocuments/ucm180310.pdf).
(Comment 7) One commenter
criticized FDA for providing no
specifications for how to design a
clinical performance study for antigen
based RIDT systems in terms of the
proportion of samples that should be
presented for each age group. In
addition, the comment suggested that
the performance estimates of different
devices presented in their package
inserts may be biased due to the actual
proportions of age groups in the study
(i.e., children vs. adults) and may not be
truly reflective of the performance in the
population overall. The commenter
further suggested that the number of
positive samples as well as sensitivity
and specificity (or positive percent
agreement (PPA)/negative percent
agreement (NPA)) for each age group be
presented in each device’s Instructions
for Use to ensure transparency.
(Response) FDA’s current
recommendations for appropriate study
design can be found in the 2011
Influenza Guidance document, where
section 9.B.ii mentions that there should
be a representative number of positive
samples (determined by the reference
method) from each age group and [the
data should be presented] stratified by
age (e.g., pediatric populations aged
birth to 5 years, 6 to 21 years, . . .
adults aged 22–59, and greater than 60
years old) in addition to the overall data
summary table.
In addition, the 2011 Influenza
Guidance document recommends
diversifying the location of the selected
clinical sites and the anticipated
prevalence of influenza at the time of
the study. Depending on the site
selection, the age composition of the
subjects will vary, but it is difficult to
predict the different age groups at the
outset of a study. FDA evaluates assay
performance estimates stratified by age
groups and determines whether the
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performance among different age groups
is similar before making the final
decision regarding 510(k) clearance.
FDA encourages sponsors to use the presubmission program to discuss the
premarket submission strategy and
study design for their specific devices.
The pre-submission program is
described in the guidance document
titled ‘‘Requests for Feedback on
Medical Device Submissions: The PreSubmission Program and Meetings with
Food and Drug Administration Staff’’
found on FDA’s Web site at https://www.
fda.gov/downloads/medicaldevices/
deviceregulationandguidance/guidance
documents/ucm311176.pdf.
(Comment 8) A commenter also
suggested that the proposed special
controls do not clearly state that data
demonstrating that a device meets the
clinical performance criteria be obtained
using prospective, fresh samples and
that this may be easily remedied by
adding a statement in the final special
controls document indicating that
‘‘clinical performance studies should be
carried out on fresh, prospective
samples.’’
(Response) The 2011 Influenza
Guidance Document, in section 9.B.iii
Specimens, on p. 27, states that: ‘‘[w]e
recommend that you assess the ability of
your device to detect influenza viruses
in fresh specimens collected from
patients suspected of having an
influenza infection who have been
sequentially enrolled in the study (allcomers study)’’. The guidance further
states that ‘‘[f]rozen archived specimens
may be useful for analytical
performance evaluations, but are not
recommended for studies to calculate
clinical sensitivity or specificity’’.
As the incidence of influenza varies
from year to year and also from region
to region, testing of archived specimens
may be acceptable where fresh positive
specimens are difficult to obtain.
Performance data obtained from testing
retrospective archived samples are
generally evaluated and presented
separately from data obtained with
prospectively collected specimens in
the final device labeling.
(Comment 9) A further
recommendation was made that the
proposed special controls include
explicit wording to clarify that clinical
performance criteria must be met for
each sample type claimed in the
proposed labeling submitted for
clearance.
(Response) FDA agrees with this
recommendation. The proposed special
controls have been modified to clarify
that clinical performance criteria must
be met for each specimen type claimed
in the intended use of the device.
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(Comment 10) One commenter
asserted that the proposed acceptance
criteria for devices choosing to use viral
culture as a comparator have been
determined using certain
generalizations that can confound the
data. Referring to the Executive
Summary document prepared for the
Panel meeting (Ref. 1), the commenter
states that, for example, all sample types
and age ranges were included in the
overall presentation of sensitivity for
various devices. The commenter
objected that the performance criteria,
as presented in the Executive Summary
document, appear to have been
subjectively defined. The commenter
further suggested that the purpose of
tables 1 and 2 in the Executive
Summary was to imply that any device
cleared prior to 2008 is assumed to have
variable and unacceptable performance,
and that the performance criteria for
antigen based RIDTs were chosen
specifically with the intention of
removing those devices from use.
Additionally, the commenter stated that
the information, as presented in the
publicly available Executive Summary,
did not make it clear that the data were
confounded and created an unfair
marketing advantage for some
manufacturers.
(Response) The summary data tables
presented in the Executive Summary
document submitted to the Panel in
June 2013 were compiled to illustrate
the range in clinical performance among
the antigen based RIDTs available on the
market in support of the reclassification
effort and were not aimed to remove
devices cleared before 2008 from the
market, as the commenter suggests. The
data for each assay presented in table 1
in the Executive Summary document
were based on the information provided
to FDA in support of the 510(k)
submissions for those devices and
included results from all prospectively
collected samples during the clinical
study conducted by the manufacturer,
regardless of the specimen type or the
age of the patient (Ref. 1). The
information in this table shows a wide
range of assay performances.
The data presented in table 2 in the
Executive Summary document were
intended to illustrate the even broader
range in sensitivity of these assays as
reported in the scientific literature and
derived from postmarket studies
conducted in the field. The data in table
2 were also based on combined results,
regardless of sample type, patient age
and even influenza virus type. Although
the commenter may consider the data
‘‘confounded,’’ they were not meant to
demonstrate statistical validity but
rather to illustrate that some of the
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currently available antigen based RIDTs
have clinically poor sensitivity even
under the controlled conditions of a
clinical study conducted in support of
a regulatory submission. More
importantly, the clinical performance of
these assays in the field, as reported in
peer reviewed publications, is
considerably worse for some of these
assays than was demonstrated in the
studies submitted to FDA to support
their clearance. Overall, the data
contained in the two tables were
intended to help illustrate the
sensitivity of the antigen based RIDTs
available on the market, taking into
consideration the limitations of the
available technology. The data
presented in both tables in the
Executive Summary document support
that improved influenza detection
devices are needed to benefit public
health in detection, treatment, and
infection control with regard to the
influenza viruses.
(Comment 11) Some commenters
inquired about the process for notifying
manufacturers that their assays do not
meet the new performance criteria and
expressed concern that manufacturers
should be allowed sufficient transition
time to develop new or modified
influenza detection devices and to
submit new 510(k)s for those products.
(Response) A manufacturer will not
be individually notified that its product
does not comply with the new special
controls; each manufacturer of an
antigen based RIDT is responsible for
compliance with these special controls,
including the minimum performance
criteria. If an antigen based RIDT device
does not meet the new performance
criteria set forth in this final order, the
device may be considered adulterated
under section 501(f)(1)(B) of the FD&C
Act (21 U.S.C. 351(f)(1)(B)), and
manufacturers must cease marketing of
the device. However, as outlined in
section IV, ‘‘Implementation Strategy,’’
FDA does not intend to enforce
compliance with the special controls
with respect to currently legally
marketed antigen based RIDT devices
until 1 year after the date of publication
of this final order. A manufacturer may
contact the Center for Devices and
Radiological Health’s (CDRH) Division
of Microbiology Devices in the Office of
In Vitro Diagnostics and Radiological
Health (OIR) with any specific
questions.
(Comment 12) One commenter
inquired whether there will be an
appeals mechanism for manufacturers
and what specific steps would be
available for manufacturers.
(Response) No new appeals
mechanisms will be implemented for
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those manufacturers whose assays do
not comply with the new special
controls. However, there are processes
available to outside stakeholders to
request additional review of decisions
or actions by the CDRH. For more
information, see the FDA guidance
document entitled ‘‘Center for Devices
and Radiological Health Appeals
Processes—Guidance for Industry and
Food and Drug Administration Staff’’
(https://www.fda.gov/Regulatory
Information/Guidances/
ucm284651.htm).
D. Annual Analytical Reactivity Testing
1. Access to Strains
(Comment 13) Commenters expressed
concerns about whether all
manufacturers, regardless of their size or
resources, will have equal access to the
samples needed to conduct the annual
analytical reactivity testing in
compliance with the new special
controls. One of the commenters noted
that there may be challenges to
specimen access for some manufacturers
under the World Health Organization
(WHO) Pandemic Influenza
Preparedness (PIP) Framework as well
as potential impact on accessing the
influenza strains sourced by the WHO
Global Influenza Surveillance and
Response System (GISRS). The
commenter asked if manufacturers
required to perform the annual testing
would need to participate in the PIP
framework to access GISRS specimens.
The commenter further stated that
unless all companies are able to access
specimens in a fair, timely and non-cost
restrictive manner to comply with the
new postmarket requirements, some
innovators may be unable to continue to
develop new influenza diagnostics.
(Response) CDC intends to make
available an annual analytical reactivity
test panel, which is an annual
standardized seasonal influenza virus
test panel, so that manufacturers can
comply with the annual analytical
reactivity testing requirement. If the
annual strains are not available from
CDC, FDA will identify an alternative
source for obtaining the requisite
strains. The selection of viruses in the
CDC annual analytical reactivity test
panels is expected to be largely based on
the strains selected by WHO for the
annual vaccine and will be distributed
for annual analytical reactivity testing or
analytical validation in support of new
510(k) submissions for antigen based
RIDT devices. We expect that the panel
will primarily consist of human viruses
that circulated in the recent influenza
seasons. FDA and CDC do not believe
that manufacturers will need to enter
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agreements under the PIP Framework to
access influenza viral strains in the
manner described in this final order for
the sole purpose of conducting testing to
comply with the special controls at
§ 866.3328(b)(3) and (4). The annual
analytical reactivity test panel will be
made available to manufacturers at the
same time, including those that require
it for the annual analytical reactivity
testing as well as those who are
developing new or modified influenza
assays. CDC and FDA are committed to
facilitating equal access for
manufacturers to the annual analytical
reactivity test panel and are prepared to
consider any unforeseen circumstances
in an equitable manner.
(Comment 14) Another commenter
expressed a concern regarding whether
the requisite strain(s) will be made
available in sufficient time to allow
manufacturers to conduct the studies
and have the data available in the
labeling or on the manufacturer’s Web
site within the timeframe specified for
both annual and emergency analytical
reactivity testing. The comment stated
that for most manufacturers, the process
of testing and making a change in
labeling would take a minimum of 90
days from receipt of samples.
(Response) Under the new special
controls, the results of the last 3 years
of annual analytical reactivity testing
conducted from the date that the device
was given marketing authorization by
FDA must be incorporated into the
device’s labeling in the manner
discussed in § 866.3328(b)(3)(iii) by July
31 of each calendar year. CDC and FDA
are committed to making available or
designating an alternative source for the
annual analytical reactivity test panel
with sufficient time for all
manufacturers to conduct the testing
and include the results in their device’s
labeling within the required timeframe.
Similarly, in the case of emergency
analytical reactivity testing, as described
in the special controls at
§ 866.3328(b)(4), after CDC makes the
viral samples available for testing, FDA
will notify the manufacturers of the
availability of the samples. The
manufacturers will have 60 days to
perform the testing of the viral samples
and to incorporate the results into the
device’s labeling in the manner
discussed in § 866.3328(b)(4)(ii). If a
manufacturer is concerned about
meeting these timelines due to time
needed to amend device labeling that
physically accompanies the device, the
manufacturer may pursue the
§ 866.3328(b)(3)(iii)(B) and (b)(4)(ii)(B)
alternatives, which allow manufacturers
to provide the results as electronic
labeling via the manufacturer’s public
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Web site that can be reached via a
hyperlink found in the device’s label or
in other labeling that physically
accompanies the device. If a
manufacturer chooses the option to post
analytical reactivity testing results on its
Web site, it would be subject to the
requirements of section 502(f) of the
FD&C Act (21 U.S.C. 352(f)) that
provides that required labeling for
prescription devices intended for use in
health care facilities or by a health care
professional and required labeling for in
vitro diagnostic devices intended for use
by health care professionals or in blood
establishments may be made available
solely by electronic means as long as the
labeling complies with the law, and that
the manufacturer affords users the
opportunity to request the labeling in
paper form, and that after a request,
promptly provides the requested
information without additional cost.
If a manufacturer provides the
hyperlink to a public Web site at which
annual analytical reactivity and
emergency testing data may be viewed,
generally no updates would be needed
to the labeling that physically
accompanies the device when meeting
the annual analytical reactivity testing
requirements under § 866.3328(b)(3) or
the emergency analytical reactivity
testing requirements under
§ 866.3328(b)(4). If annual or emergency
analytical reactivity testing reveals that
the device is unable to detect one or
more strains, the manufacturer would
need to include a limitation in the
device labeling, as further discussed in
our response to Comment 21.
2. Acquisition of the Annual Analytical
Reactivity Test Panel and Reporting of
Results
(Comment 15) Commenters expressed
concern about the logistics of the
implementation of the new requirement
for the annual analytical reactivity
testing. One commenter stated that a
clear mechanism was not outlined in
the proposed order for activities leading
to the reporting of results.
(Response) The activities leading to
the reporting of results will include
acquisition of the annual analytical
reactivity test panel and analytical
reactivity testing following the
standardized protocol included with the
test panel, which will be a standardized
protocol considered and determined by
FDA to be acceptable and appropriate.
Results must be reported by updating
the device’s labeling in accordance with
§ 866.3328(b)(3)(iii). As previously
stated, CDC and FDA are committed to
working with the manufacturers of the
influenza tests to facilitate timely and
equitable access to the influenza virus
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annual analytical reactivity test panel.
CDC has developed a Web site (https://
www.cdc.gov/flu/dxfluviruspanel/
index.htm) where the manufacturers can
affirm their need for the annual
analytical reactivity test panel, referred
to by CDC as the ‘‘CDC Influenza Virus
Panel,’’ to comply with the annual
analytical reactivity testing requirement.
The CDC panel will be distributed along
with certificates of analyses for the
viruses and a standardized testing
protocol, considered and determined by
FDA to be acceptable and appropriate,
instructing the user on handling and
testing of the provided virus stocks in
the test panel. There are currently no
plans to post the analytical reactivity
testing data generated by the
manufacturers on the CDC Web site. For
any questions related to the test
procedure, manufacturers may contact
CDC or FDA as specified in the
information included with the influenza
virus analytical reactivity test panel.
CDC will serve as the contact for
questions pertaining to viruses, and
FDA will serve as the contact for all
regulatory and reporting issues.
(Comment 16) Commenters expressed
concern about the continued availability
of the test panel from CDC due to the
future potential for limited resources at
CDC or FDA.
(Response) In a case where the
influenza virus analytical reactivity test
panel is not available from CDC due to
unforeseen limitations in resources, an
alternate source of influenza strains for
use in conducting the annual analytical
reactivity testing will be identified by
FDA, in consultation with CDC. An
example of an alternate source could be
a commercial vendor that specializes in
acquisition, authentication, production,
and preservation of microorganisms.
(Comment 17) Commenters suggested
that the industry should be engaged for
feedback in the development of the
standardized testing protocol.
(Response) A standardized protocol
has been developed by CDC in
consultation with FDA and will be
provided to manufacturers with the
annual analytical reactivity test panel.
The protocol uses basic principles for
working with virus stocks and is general
enough to allow for use with various
devices. For any questions related to the
testing procedure, manufacturers can
contact CDC or FDA. CDC will serve as
the contact for questions pertaining to
viruses, and FDA will serve as the
contact for all regulatory and reporting
issues.
(Comment 18) One commenter
inquired whether the analytical
reactivity testing could be conducted
using a modified limit of detection
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(LoD) protocol, where 60 replicates are
tested over 3 dilutions with positivity
rates between 80 and 99 percent
followed by linear regression to
calculate the specific concentration that
corresponds to a positivity rate of 95
percent.
(Response) This approach is
acceptable to use in the determination
of a LoD of an antigen based RIDT assay.
However, manufacturers must follow
the protocol included with the influenza
virus analytical reactivity test panel,
which will be a standardized protocol
considered and determined by FDA to
be acceptable and appropriate. We
believe the standardized protocol will
be less burdensome than this
commenter’s proposal and will help
ensure that the results generated allow
for comparability between different
devices, as all devices will have
followed a common standardized testing
protocol.
(Comment 19) One commenter asked
whether interested manufacturers
would have an option to have the
testing conducted by an independent
laboratory, such as a laboratory at a
university.
(Response) Yes, a manufacturer may
contract an outside laboratory to
conduct the testing on its behalf.
(Comment 20) One commenter raised
a concern that customers without access
to a manufacturer’s Web site may not be
able to access the annual and/or
emergency analytical reactivity testing
information; therefore, the commenter
suggested that an alternate method of
contact should be provided in the
product labeling.
(Response) All in vitro diagnostic
devices are required by regulation to
state on the label and in the product
labeling the name and place of business
of the manufacturer, packer, or
distributor § 809.10(a)(8) and (b)(14) (21
CFR 809.10(a)(8) and (b)(14)), except
where such information is not
applicable, or as otherwise specified in
a standard for a particular product class.
In addition, in accordance with
§ 866.3328(b)(3)(iii) the results of the
annual analytical reactivity testing must
either be in the § 809.10(b) compliant
labeling that physically accompanies
the device or be provided as electronic
labeling via the manufacturer’s public
Web site that can be reached via a
hyperlink prominently found in the
device’s label or in other labeling that
physically accompanies the device. If
the manufacturer chooses the Web site
option, it would be subject to the
requirements of section 502(f) of the
FD&C Act, which provides that required
labeling for prescription devices
intended for use in health care facilities
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or by a health care professional and
required labeling for in vitro diagnostic
devices intended for use by health care
professionals or in blood establishments
may be made available solely by
electronic means, as long as the labeling
complies with the law, and that the
manufacturer affords users the
opportunity to request the labeling in
paper form, and that after a request,
promptly provides the requested
information without additional cost.
Therefore, a manufacturer is already
required to provide an opportunity for
a health care professional to request the
annual analytical reactivity test results
in paper form.
(Comment 21) One commenter raised
a question about notifying the public
when a test is non-reactive with any of
the strains included in the influenza
virus analytical reactivity test panel
provided by CDC and whether the
product labeling will be updated
annually. In particular, the commenter
questioned how labeling changes to
reflect absence of reactivity would be
communicated to users who have
already purchased the test.
(Response) This final order requires
that the results of the last 3 years of
annual analytical reactivity testing
conducted from the date that the device
was given marketing authorization by
FDA be included as part of the device’s
labeling by July 31 of each calendar
year. Modification of the labeling solely
to incorporate analytical reactivity
testing results required under
§ 866.3328(b)(3)(iii) or (b)(4)(ii) can be
made without an official submission to
FDA. In a case where one or more
strains are shown not to be detected by
the device during annual analytical
reactivity testing under § 866.3328(b)(3)
or emergency analytical reactivity
testing under § 866.3328(b)(4), the
manufacturer will need to include a
limitation in the device labeling
regarding reactivity with the specific
strain(s) that were not detected by the
device. Without such a limitation, the
device would not meet the labeling
requirements of § 809.10(b).
(Comment 22) One commenter raised
a question about whether there will be
a guidance document issued on a yearly
basis to interpret the results of the
analytical reactivity testing for that year.
(Response) FDA does not intend to
issue a guidance document on how to
interpret the results of the analytical
reactivity testing each year, as the result
interpretations are stated in the CDC
information sheet that will be
distributed with the CDC annual
analytical reactivity test panel. The
annual analytical reactivity testing is
intended to evaluate whether the assay
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detects each strain included in the
annual analytical reactivity test panel;
however, that testing does not provide
direct information about how the assay
performs when used with clinical
specimens that are collected directly
from patients. Any positive result
obtained during analytical reactivity
testing performed with the annual
influenza virus analytical reactivity test
panel, at any viral concentration/
dilution, indicates that the assay is
reactive with that virus; however, the
minimal concentration of the virus that
is needed for the detection (assay
sensitivity) may vary. Since the
difference in analytical reactivity does
not necessarily translate into an
appreciable difference in performance
when testing clinical specimens, it is
important to emphasize that the results
should not be over-interpreted for
clinical purposes.
(Comment 23) One commenter
suggested further collaboration between
the Agency and influenza test
manufacturers in establishing the
regulatory process for implementing the
labeling change before a final ‘‘Notice to
Industry’’ or other document is
published. The commenter further
recommended that FDA specify an
interactive process, whereby individual
manufacturers can seek guidance,
particularly if they encounter issues that
may impede timely publication of
annual and emergency analytical
reactivity testing data (e.g., if the matrix
used in the preparation of the virus
strains in the test panel causes invalid
results with a particular device).
(Response) Interactive communication
with manufacturers is common practice
among the reviewers and the managers
in CDRH. Manufacturers are encouraged
to contact CDRH’s OIR with questions or
about issues related to the new
requirements. In addition, the CDRH
pre-submission program is designed to
allow sponsors the opportunity to
obtain targeted FDA feedback in
response to specific questions related to
product development, including
planned non-clinical evaluations,
proposed clinical study protocols, or
data requirements prior to making a
submission to the Agency.
E. Timely Testing of Newly Emergent
Strains
(Comment 24) Similar concerns to
those surrounding the annual reactivity
testing requirement were raised in
regard to the emergency testing of
emergent strains. In addition, one
comment expressed support for
specifying a timeline for reporting the
results after the samples become
available.
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(Response) Section 866.3328(b)(4)(ii)
requires that, in certain emergency or
potential emergency situations
involving an influenza viral strain, the
results of analytical reactivity testing
with the emerging virus(es) must be
made available within 60 days from the
date that FDA notifies antigen based
RIDT manufacturers that characterized
viral samples are available. The results
of the influenza emergency analytical
reactivity testing must be disclosed in a
tabular format in a similar manner as
the results of the annual analytical
reactivity testing (i.e., either by placing
the table directly in the device’s
§ 809.10(b) compliant labeling that
physically accompanies the device in
the section of the labeling devoted to
analytical reactivity testing, or in a
section of the device’s label or in
labeling that physically accompanies
the device, by prominently providing a
hyperlink to a part of the manufacturer’s
Web site where the analytical reactivity
testing data can be found). As
previously discussed, modification of
the labeling solely to incorporate annual
analytical reactivity testing results
under § 866.3328(b)(3)(iii) or emergency
analytical reactivity testing results
under § 866.3328(b)(4)(ii) can be made
without an official submission to FDA.
In a case where one or more strains are
shown not to be detected by the device
during annual analytical reactivity
testing under § 866.3328(b)(3) or
emergency analytical reactivity testing
under § 866.3328(b)(4), the
manufacturer will need to include a
limitation in the device labeling
regarding reactivity with the specific
strain(s) that were not detected by the
device. Without such a limitation the
device would not meet the labeling
requirements of § 809.10(b).
FDA is also clarifying the special
controls to be more precise regarding
the situations in which emergency
analytical reactivity testing is required.
Under section 564(a)–(b) of the FD&C
Act (21 U.S.C. 360bbb–3(a)–(b)), the
Secretary of Health and Human Services
(HHS) may authorize the introduction
into interstate commerce of a drug,
device, or biologic product intended for
use in an actual or potential emergency
(referred to as ‘‘emergency use’’) after
making a declaration, under section
564(b)(1) of the FD&C Act, that
circumstances exist justifying the
authorization. Such a declaration must
be based on one of the following actions
listed at section 564(b)(1)(A)–(D) of the
FD&C Act:
• A determination by the Secretary of
Homeland Security that there is a
domestic emergency, or a significant
potential for a domestic emergency,
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involving a heightened risk of attack
with a chemical, biological, radiological,
or nuclear (CBRN) agent or agents;
• A determination by the Secretary of
Defense that there is a military
emergency, or a significant potential for
a military emergency, involving a
heightened risk to U.S. military forces of
attack with a CBRN agent or agents;
• A determination by the Secretary of
HHS that there is a public health
emergency, or a significant potential for
a public health emergency, that affects,
or has a significant potential to affect,
national security or the health and
security of U.S. citizens living abroad,
and that involves a CBRN agent or
agents, or a disease or condition that
may be attributable to such agent or
agents; or
• The identification of a material
threat, by the Secretary of Homeland
Security under section 319F–2 of the
Public Health Service (PHS) Act, that is
sufficient to affect national security or
the health and security of U.S. citizens
living abroad.
If one of these four actions that can
provide the basis for the Secretary of
HHS to make a declaration under
section 564(b)(1) of the FD&C Act occurs
with respect to an influenza viral strain,
then, after being notified that
characterized viral samples are available
from CDC, antigen based RIDT
manufacturers must conduct analytical
reactivity testing with those samples
and make the results available in their
device labeling within the timeframes
set forth in § 866.3328(b)(4).
In addition, the Secretary of HHS may
determine under section 319(a) of the
PHS Act (42 U.S.C. 247d(a)) that a
disease or disorder presents a public
health emergency or that a public health
emergency otherwise exists. In the event
of such a determination under section
319(a) of the PHS Act with respect to an
influenza viral strain, then, after being
notified that characterized viral samples
are available from CDC, antigen based
RIDT manufacturers would also need to
conduct analytical reactivity testing
with those samples and make the results
available in their device labeling within
the timeframes set forth in
§ 866.3328(b)(4).
The final order also modifies the
special controls to require that any
emergency reactivity test results added
to antigen based RIDT device labeling
under § 866.3328(b)(4)(ii) remain in the
labeling for a period of 3 years.
Emerging influenza strains may still be
circulating after the statutory actions
described under section 564(b)(1)(A)–
(D) of the FD&C Act and section 319(a)
of the PHS Act have terminated. The
change will align the period that
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3617
emergency analytical reactivity test
results must remain in device labeling
with the requirement in
§ 866.3328(b)(3)(iii) that manufacturers
provide the last 3 years of annual
analytical reactivity testing in the device
labeling. FDA believes that this makes
the labeling requirements in the special
controls more clear and consistent for
industry.
As discussed previously, after
reviewing the comments received along
with the proposed order and the Panel’s
recommendations, FDA is making a few
clarifications and modifications to the
special controls for antigen based
RIDTs. These include: (1) Clarifying that
clinical performance criteria must be
met for each specimen type claimed in
the intended use of the device; (2)
clarifying that manufacturers of future
antigen based RIDT devices may use a
currently appropriate and FDA accepted
comparator method other than
comparison to an FDA-cleared nucleic
acid based-test or viral culture methods
to demonstrate that those devices meet
the clinical performance criteria, if such
a comparator method is established; (3)
clarifying that a manufacturer choosing
to provide analytical reactivity testing
results via its public Web site must
prominently provide hyperlink to that
Web site in the device’s label or in other
labeling that physically accompanies
the device; (4) clarifying the
circumstances in which emergency
analytical reactivity testing is required
under § 866.3328(b)(4); and (5) requiring
results of such emergency analytical
reactivity testing to remain in the device
labeling for a period of 3 years.
III. The Final Order
Under section 513(e) of the FD&C Act,
FDA is adopting its findings as
published in the preamble to the
proposed order, with the modifications
discussed in section II of this final
order. FDA is issuing this final order to
reclassify antigen based rapid influenza
virus antigen detection test systems
intended to detect influenza virus
antigen directly from clinical specimens
that are currently regulated as influenza
virus serological reagents under
§ 866.3330 from class I into class II with
special controls and into a new device
classification regulation for ‘‘influenza
virus antigen detection test systems.’’
Currently, antigen based RIDTs are
mostly found under product codes GNX
and GNT. However, any antigen based
rapid influenza virus antigen detection
test system intended to detect influenza
virus antigen directly from clinical
specimens that is currently regulated as
influenza virus serological reagents
under § 866.3330 is subject to this
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reclassification regardless of the product
code to which it is currently assigned.
Section 510(m) of the FD&C Act
provides that a class II device may be
exempt from the premarket notification
requirements under section 510(k) of the
FD&C Act, if the Agency determines that
premarket notification is not necessary
to provide reasonable assurance of the
safety and effectiveness of the device.
For this device, FDA believes that
premarket notification is necessary to
provide reasonable assurance of safety
and effectiveness. Therefore, this type of
device is not exempt from premarket
notification requirements.
In addition, FDA believes that special
controls that: (1) Identify the minimum
acceptable performance criteria; (2)
require use of a currently appropriate
and FDA accepted comparator method
for establishing performance of new
antigen based RIDTs; (3) require annual
analytical reactivity testing of
contemporary influenza strains; and (4)
require analytical reactivity testing of
newly emerging strains under certain
situations involving an emergency or
potential for an emergency, are
necessary to provide reasonable
assurance of safety and effectiveness of
these devices.
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IV. Implementation Strategy
The special controls identified in this
final order are effective February 13,
2017.
• For antigen based RIDTs that have
not been legally marketed prior to
February 13, 2017, or that have been
legally marketed but are required to
submit a 510(k) under 21 CFR
807.81(a)(3) because the device is about
to be significantly changed or modified,
manufacturers must obtain 510(k)
clearance, among other relevant
requirements, and demonstrate
compliance with the special controls
included in this final order, before
marketing their new or changed device.
If a manufacturer markets such a device
after February 13, 2017 without
obtaining 510(k) clearance and
demonstrating compliance with the
special controls included in this final
order, then FDA would consider taking
action against such a manufacturer
under its usual enforcement policies.
• For antigen based RIDTs that have
been legally marketed prior to February
13, 2017, FDA does not intend to
enforce compliance with the special
controls until January 12, 2018. If a
manufacturer markets such a device
after January 12, 2018, and that device
does not comply with the special
controls, then FDA would consider
taking action against such a
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manufacturer under its usual
enforcement policies.
FDA believes that a period of 1 year
from the publication date of this final
order is appropriate for manufacturers
to come into compliance with the
special controls and for those
manufacturers whose currently legally
marketed devices do not meet the
minimum performance criteria to
prepare and submit a 510(k) for a new
or significantly changed or modified
device. FDA believes this approach will
help ensure the efficient and effective
implementation of the order.
V. Analysis of Environmental Impact
The Agency has determined under 21
CFR 25.34(b) that this reclassification
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
This administrative order establishes
special controls that refer to previously
approved collections of information
found in other FDA regulations and
guidance. These collections of
information are subject to review by the
Office of Management and Budget
(OMB) under the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501–3520). The
collections of information in part 807,
subpart E, regarding premarket
notification submissions have been
approved under OMB control number
0910–0120; the collections of
information in 21 CFR part 812
regarding investigational device
exemptions have been approved under
OMB control number 0910–0078; the
collections of information in 21 CFR
part 801 and § 809.10 have been
approved under OMB control number
0910–0485; and the collections of
information regarding pre-submissions
have been approved under OMB control
number 0910–0756.
VII. Codification of Orders
Prior to the amendments by FDASIA,
section 513(e) of the FD&C Act provided
for FDA to issue regulations to reclassify
devices. Although section 513(e) of the
FD&C Act, as amended, requires FDA to
issue final orders rather than
regulations, FDASIA also provides for
FDA to revoke previously issued
regulations by order. FDA will continue
to codify classifications and
reclassifications in the Code of Federal
Regulations (CFR). Changes resulting
from final orders will appear in the CFR
as changes to codified classification
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Fmt 4700
Sfmt 4700
determinations or as newly codified
orders. Therefore, under section
513(e)(1)(A)(i) of the FD&C Act, as
amended by FDASIA, in this final order,
we are codifying the reclassification of
antigen based RIDTs into class II
(special controls).
VIII. Reference
The following reference is on display
in the Division of Dockets Management
(HFA–305), Food and Drug
Administration, 5630 Fishers Lane, Rm.
1061, Rockville, MD 20852, and is
available for viewing by interested
persons between 9 a.m. and 4 p.m.,
Monday through Friday; it is also
available electronically at https://
www.regulations.gov. FDA has verified
the Web site addresses, as of the date
this document publishes in the Federal
Register, but Web sites are subject to
change over time.
1. Transcript and other meeting materials of
FDA’s Microbiology Devices Panel
Meeting held on June 13, 2013, are
available on FDA’s Web site at: https://
www.fda.gov/AdvisoryCommittees/
ucm351035.htm.
List of Subjects in 21 CFR Part 866
Biologics, Laboratories, Medical
devices.
Therefore, under the Federal Food,
Drug, and Cosmetic Act and under
authority delegated to the Commissioner
of Food and Drugs, 21 CFR part 866 is
amended as follows:
PART 866—IMMUNOLOGY AND
MICROBIOLOGY DEVICES
1. The authority citation for part 866
continues to read as follows:
■
Authority: 21 U.S.C. 351, 360, 360c, 360e,
360j, 371.
2. Add § 866.3328 to subpart D to read
as follows:
■
§ 866.3328 Influenza virus antigen
detection test system.
(a) Identification. An influenza virus
antigen detection test system is a device
intended for the qualitative detection of
influenza viral antigens directly from
clinical specimens in patients with
signs and symptoms of respiratory
infection. The test aids in the diagnosis
of influenza infection and provides
epidemiological information on
influenza. Due to the propensity of the
virus to mutate, new strains emerge over
time which may potentially affect the
performance of these devices. Because
influenza is highly contagious and may
lead to an acute respiratory tract
infection causing severe illness and
even death, the accuracy of these
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devices has serious public health
implications.
(b) Classification. Class II (special
controls). The special controls for this
device are:
(1) The device’s sensitivity and
specificity performance characteristics
or positive percent agreement and
negative percent agreement, for each
specimen type claimed in the intended
use of the device, must meet one of the
following two minimum clinical
performance criteria:
(i) For devices evaluated as compared
to an FDA-cleared nucleic acid basedtest or other currently appropriate and
FDA accepted comparator method other
than correctly performed viral culture
method:
(A) The positive percent agreement
estimate for the device when testing for
influenza A and influenza B must be at
the point estimate of at least 80 percent
with a lower bound of the 95 percent
confidence interval that is greater than
or equal to 70 percent.
(B) The negative percent agreement
estimate for the device when testing for
influenza A and influenza B must be at
the point estimate of at least 95 percent
with a lower bound of the 95 percent
confidence interval that is greater than
or equal to 90 percent.
(ii) For devices evaluated as compared
to correctly performed viral culture
method as the comparator method:
(A) The sensitivity estimate for the
device when testing for influenza A
must be at the point estimate of at least
90 percent with a lower bound of the 95
percent confidence interval that is
greater than or equal to 80 percent. The
sensitivity estimate for the device when
testing for influenza B must be at the
point estimate of at least 80 percent
with a lower bound of the 95 percent
confidence interval that is greater than
or equal to 70 percent.
(B) The specificity estimate for the
device when testing for influenza A and
influenza B must be at the point
estimate of at least 95 percent with a
lower bound of the 95 percent
confidence interval that is greater than
or equal to 90 percent.
(2) When performing testing to
demonstrate the device meets the
requirements in paragraph (b)(1) of this
section, a currently appropriate and
FDA accepted comparator method must
be used to establish assay performance
in clinical studies.
(3) Annual analytical reactivity testing
of the device must be performed with
contemporary influenza strains. This
annual analytical reactivity testing must
meet the following criteria:
(i) The appropriate strains to be tested
will be identified by FDA in
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consultation with the Centers for
Disease Control and Prevention (CDC)
and sourced from CDC or an FDAdesignated source. If the annual strains
are not available from CDC, FDA will
identify an alternative source for
obtaining the requisite strains.
(ii) The testing must be conducted
according to a standardized protocol
considered and determined by FDA to
be acceptable and appropriate.
(iii) By July 31 of each calendar year,
the results of the last 3 years of annual
analytical reactivity testing must be
included as part of the device’s labeling.
If a device has not been on the market
long enough for 3 years of annual
analytical reactivity testing to have been
conducted since the device received
marketing authorization from FDA, then
the results of every annual analytical
reactivity testing since the device
received marketing authorization from
FDA must be included. The results must
be presented as part of the device’s
labeling in a tabular format, which
includes the detailed information for
each virus tested as described in the
certificate of authentication, either by:
(A) Placing the results directly in the
device’s § 809.10(b) of this chapter
compliant labeling that physically
accompanies the device in a separate
section of the labeling where the
analytical reactivity testing data can be
found; or
(B) In the device’s label or in other
labeling that physically accompanies
the device, prominently providing a
hyperlink to the manufacturer’s public
Web site where the analytical reactivity
testing data can be found. The
manufacturer’s home page, as well as
the primary part of the manufacturer’s
Web site that discusses the device, must
provide a prominently placed hyperlink
to the Web page containing this
information and must allow unrestricted
viewing access.
(4) If one of the actions listed at
section 564(b)(1)(A)–(D) of the Federal
Food, Drug, and Cosmetic Act occurs
with respect to an influenza viral strain,
or if the Secretary of Health and Human
Services (HHS) determines, under
section 319(a) of the Public Health
Service Act, that a disease or disorder
presents a public health emergency, or
that a public health emergency
otherwise exists, with respect to an
influenza viral strain:
(i) Within 30 days from the date that
FDA notifies manufacturers that
characterized viral samples are available
for test evaluation, the manufacturer
must have testing performed on the
device with those viral samples in
accordance with a standardized protocol
considered and determined by FDA to
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3619
be acceptable and appropriate. The
procedure and location of testing may
depend on the nature of the emerging
virus.
(ii) Within 60 days from the date that
FDA notifies manufacturers that
characterized viral samples are available
for test evaluation and continuing until
3 years from that date, the results of the
influenza emergency analytical
reactivity testing, including the detailed
information for the virus tested as
described in the certificate of
authentication, must be included as part
of the device’s labeling in a tabular
format, either by:
(A) Placing the results directly in the
device’s § 809.10(b) of this chapter
compliant labeling that physically
accompanies the device in a separate
section of the labeling where analytical
reactivity testing data can be found, but
separate from the annual analytical
reactivity testing results; or
(B) In a section of the device’s label
or in other labeling that physically
accompanies the device, prominently
providing a hyperlink to the
manufacturer’s public Web site where
the analytical reactivity testing data can
be found. The manufacturer’s home
page, as well as the primary part of the
manufacturer’s Web site that discusses
the device, must provide a prominently
placed hyperlink to the Web page
containing this information and must
allow unrestricted viewing access.
Dated: January 4, 2017.
Leslie Kux,
Associate Commissioner for Policy.
[FR Doc. 2017–00199 Filed 1–11–17; 8:45 am]
BILLING CODE 4164–01–P
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
24 CFR Part 15
[Docket No. FR–5986–F–01]
RIN 2501–AD81
Revision of Freedom of Information
Act Regulation
Office of the Secretary, HUD.
Final rule.
AGENCY:
ACTION:
This final rule amends HUD’s
Freedom of Information Act (FOIA)
regulation to implement the FOIA
Improvement Act of 2016. The FOIA
Improvement Act enacted a range of
procedural issues, including
requirements that agencies establish a
minimum of 90 days for requesters to
file an administrative appeal, and
codifies the foreseeable harm standard.
SUMMARY:
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Agencies
[Federal Register Volume 82, Number 8 (Thursday, January 12, 2017)]
[Rules and Regulations]
[Pages 3609-3619]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00199]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Part 866
[Docket No. FDA-2014-N-0440]
Microbiology Devices; Reclassification of Influenza Virus Antigen
Detection Test Systems Intended for Use Directly With Clinical
Specimens
AGENCY: Food and Drug Administration, HHS.
ACTION: Final order.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is reclassifying
antigen based rapid influenza virus antigen detection test systems
intended to detect influenza virus directly from clinical specimens
that are currently regulated as influenza virus serological reagents
from class I into class II with special controls and into a new device
classification regulation.
[[Page 3610]]
DATES: This order is effective February 13, 2017. See further
discussion in section IV, ``Implementation Strategy.''
FOR FURTHER INFORMATION CONTACT: Stefanie Akselrod, Center for Devices
and Radiological Health, Food and Drug Administration, 10903 New
Hampshire Ave., Bldg. 66, Rm. 5438, Silver Spring, MD 20993-0002, 301-
796-6188.
SUPPLEMENTARY INFORMATION:
I. Regulatory Authorities
The Federal Food, Drug, and Cosmetic Act (the FD&C Act), as amended
by the Medical Device Amendments of 1976 (the 1976 amendments) (Pub. L.
94-295), the Safe Medical Devices Act of 1990 (Pub. L. 101-629), the
Food and Drug Administration Modernization Act of 1997 (FDAMA) (Pub. L.
105-115), the Medical Device User Fee and Modernization Act of 2002
(Pub. L. 107-250), the Medical Devices Technical Corrections Act (Pub.
L. 108-214), the Food and Drug Administration Amendments Act of 2007
(Pub. L. 110-85), and the Food and Drug Administration Safety and
Innovation Act (FDASIA) (Pub. L. 112-144), among other amendments,
established a comprehensive system for the regulation of medical
devices intended for human use. Section 513 of the FD&C Act (21 U.S.C.
360c) established three categories (classes) of devices, reflecting the
regulatory controls needed to provide reasonable assurance of their
safety and effectiveness. The three categories of devices are class I
(general controls), class II (special controls), and class III
(premarket approval).
Under section 513(d) of the FD&C Act, devices that were in
commercial distribution before the enactment of the 1976 amendments on
May 28, 1976 (generally referred to as preamendments devices) are
classified after FDA has: (1) Received a recommendation from a device
classification panel (an FDA advisory committee); (2) published the
panel's recommendation for comment, along with a proposed regulation
classifying the device; and (3) published a final regulation
classifying the device. FDA has classified most preamendments devices
under these procedures.
Devices that were not in commercial distribution prior to May 28,
1976 (generally referred to as ``postamendments devices''), are
automatically classified by section 513(f) of the FD&C Act into class
III without any FDA rulemaking process. Those devices remain in class
III and require premarket approval unless, and until, the device is
reclassified into class I or II or FDA issues an order finding the
device to be substantially equivalent, in accordance with section
513(i) of the FD&C Act, to a predicate device that does not require
premarket approval.
Under section 513(i) of the FD&C Act, a device is substantially
equivalent if it has the same intended use and technological
characteristics as a predicate device, or has the same intended use as
the predicate device and has different technological characteristics,
but data demonstrate that the new device is as safe and effective as
the predicate device and does not raise different questions of safety
or effectiveness than the predicate device. The Agency determines
whether new devices are substantially equivalent to predicate devices
by means of premarket notification (510(k)) procedures in section
510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part
807).
FDAMA added section 510(m) to the FD&C Act. Section 510(m) of the
FD&C Act provides that a class II device may be exempted from the
premarket notification requirements under section 510(k) of the FD&C
Act, if the Agency determines that premarket notification is not
necessary to assure the safety and effectiveness of the device.
On July 9, 2012, FDASIA was enacted. Section 608(a) of FDASIA
amended section 513(e) of the FD&C Act, changing the mechanism for
reclassifying a device from rulemaking to an administrative order.
Section 513(e) of the FD&C Act provides that FDA may, by administrative
order, reclassify a device based upon ``new information.'' FDA can
initiate a reclassification under section 513(e) of the FD&C Act or an
interested person may petition FDA to reclassify an eligible device
type. The term ``new information,'' as used in section 513(e) of the
FD&C Act, includes information developed as a result of a reevaluation
of the data before the Agency when the device was originally
classified, as well as information not presented, not available, or not
developed at that time. See, e.g., Holland-Rantos Co. v. U.S. Dep't of
Health, Educ., and Welfare, 587 F.2d 1173, 1174 n.1 (D.C. Cir. 1978);
Upjohn v. Finch, 422 F.2d 944 (6th Cir. 1970); Bell v. Goddard, 366
F.2d 177 (7th Cir. 1966).
Reevaluation of the data previously before the Agency is an
appropriate basis for subsequent action where the reevaluation is made
in light of newly available authority. See Bell, 366 F.2d at 181;
Ethicon, Inc. v. FDA, 762 F. Supp. 382, 388-91 (D.D.C. 1991), or in
light of changes in ``medical science'' (Upjohn, 422 F.2d at 951).
Whether data before the Agency are old or new data, the ``new
information'' to support reclassification under section 513(e) of the
FD&C Act must be ``valid scientific evidence,'' as defined in section
513(a)(3) of the FD&C Act and 21 CFR 860.7(c)(2). See, e.g., Gen. Med.
Co. v. FDA, 770 F.2d 214 (D.C. Cir. 1985); Contact Lens Mfrs. Ass'n. v.
FDA, 766 F.2d 592 (D.C. Cir.), cert. denied, 474 U.S. 1062 (1986).
Section 513(e)(1) of the FD&C Act sets forth the process for
issuing a final order for reclassifying a device under that section.
Specifically, prior to the issuance of a final order reclassifying a
device, the following must occur: (1) Publication of a proposed order
in the Federal Register; (2) a meeting of a device classification panel
described in section 513(b) of the FD&C Act; and (3) consideration of
comments to a public docket. FDA published a proposed order to
reclassify this device type in the Federal Register of May 22, 2014 (79
FR 29387). FDA has held a meeting of a device classification panel
described in section 513(b) of the FD&C Act with respect to antigen
based rapid influenza diagnostic test (RIDT) systems and has also
received and considered comments on the proposed order, as discussed in
section II. Therefore, FDA has met the requirements under section
513(e)(1) of the FD&C Act.
II. Public Comments in Response to the Proposed Order
On May 22, 2014, FDA published a proposed order to reclassify
antigen based RIDTs intended to detect influenza virus antigen directly
from clinical specimens that are currently regulated as influenza virus
serological reagents under Sec. 866.3330 (21 CFR 866.3330) from class
I into class II with special controls and into a new device
classification regulation (79 FR 29387).
The Agency received comments on the proposed order from several
entities. Comments were received from device industry manufacturers, a
consumer group, professional organizations, a health care organization,
a device manufacturers association, and an individual consumer.
To make it easier to identify comments and our responses, the word
``Comment'' and a comment number appear in parentheses before each
comment's description, and the word ``Response'' in parentheses
precedes each response. Similar comments are grouped together under the
same number. Specific issues raised by the comments and the Agency's
responses follow.
[[Page 3611]]
A. General Comments
(Comment 1) Commenters expressed support for the proposed order to
reclassify antigen based RIDTs from class I to class II with special
controls, noting that there is evidence that the currently available
antigen based RIDTs, which are widely used in non-clinical laboratory
settings such as physician office laboratories, are performing poorly,
resulting in many misdiagnosed cases of influenza. Commenters noted
that a misdiagnosis of influenza may have serious consequences,
including: Inappropriate use of antibiotics and failure to use
antiviral therapy, which may be critical for some patients, following
false negative results; the unnecessary or inappropriate prescribing of
antiviral drugs following false positive results; ineffective infection
control measures; and an overall increased public health burden, such
as increased rate of hospitalization and return doctor visits. Several
commenters expressed a concern regarding frequent antigenic changes in
the circulating strains as the influenza virus evolves and agreed with
the new requirement that manufacturers conduct annual analytical
testing of circulating strains in an effort to monitor the performance
of these tests over time. Overall, there was a general consensus among
the commenters that the proposed special controls address and mitigate
the risks to health.
(Response) FDA agrees that reclassification of antigen based RIDTs
into class II as outlined in this order will help to improve the
overall quality of testing for influenza. The new minimum performance
requirements for these tests detecting influenza virus antigens are
expected to lower the number of misdiagnosed influenza infections by
increasing the number of devices that can reliably detect the influenza
virus. In addition, the special controls requiring annual and emergency
analytical reactivity testing provide a process for continued
monitoring of the performance of antigen based RIDTs. As part of that
process, the Centers for Disease Control and Prevention (CDC) and FDA
will collaborate in efforts to ensure that there is an influenza virus
analytical reactivity test panel available to all manufacturers of
antigen based RIDTs for evaluation of the analytical reactivity of
their assays with circulating viruses on an annual basis.
(Comment 2) One commenter noted that under the FD&C Act, as amended
by FDASIA, FDA is able to reclassify a device via an ``order rather
than rulemaking,'' but the commenter expressed a concern that FDA seems
to consider holding a panel meeting after the issuance of a proposed
order as ``discretionary rather than mandatory.'' The commenter urged
FDA to hold panel meetings after the issuance of proposed
reclassification orders in order to allow the panel to discuss the
proposal after it has been issued. The commenter stated that holding a
panel meeting following issuance of a proposed reclassification order
is a critical element of the process reforms enacted by Congress. In
addition, the commenter expressed a concern that the Agency has not
obtained sufficient feedback from physicians who commonly use the rapid
influenza tests in their practice. Therefore, the commenter suggested
that FDA should convene another panel meeting and include these
physicians to provide critical expertise and perspective on the overall
evaluation of FDA's proposed plans on test reclassification, including
the analytical reactivity testing protocol, specifications, and
qualification of specimens.
(Response) The June 13, 2013, Microbiology Advisory Panel
(``Panel'') meeting considered all relevant scientific issues
associated with the proposed order for the antigen based RIDTs and
recommended reclassifying these devices into class II (special
controls). The Panel included six physicians and seven researchers who
provided input that FDA considered for purposes of the proposed order,
including the proposed special controls. Each of the Panel members is
considered an authority on matters of influenza infection, treatment,
epidemiology, and/or biology. Representatives from CDC and the
Association of Public Health Laboratories presented extensive data on
the use of the currently available antigen based RIDTs and the outcomes
related to patients that support the conclusion that there has been
poor performance of antigen based RIDTs in the medical practice. The
Panel recommended the reclassification of antigen based RIDTs. FDA is
not aware of any significant changes in benefits or risks relating to
the antigen based RIDTs that have been identified since the June 13,
2013, Panel meeting. Stakeholders had an opportunity to provide
feedback to the proposed order in their comments, and that feedback has
been largely positive. The public comments are addressed here and are
also available to view by request or on https://www.regulations.gov.
The process followed by FDA in reclassifying antigen based RIDTs is
in accordance with the applicable statutory provisions, which were
amended by FDASIA. Section 608 of FDASIA amended section 513(e) of the
FD&C Act by changing the reclassification process from rulemaking to an
administrative order process. The amendments to section 513(e) of the
FD&C Act made by FDASIA require, in relevant part, that issuance of an
administrative order reclassifying a device be preceded by a proposed
order and a meeting of a device classification panel.
As amended, section 513(e) of the FD&C Act does not prescribe when
these two events (the panel meeting and proposed order) must occur in
relation to each other. Therefore, under this provision, the Agency may
hold a panel meeting either before or after the issuance of a proposed
reclassification order. This approach is consistent with the prior
panel provision in section 513(e) of the FD&C Act, which provided for
FDA, at its discretion, to secure a panel recommendation prior to the
promulgation of a reclassification rule. Generally, for future
reclassifications under section 513(e) of the FD&C Act for which a
meeting of a device classification panel has not yet occurred, FDA
expects a proposed reclassification order will be issued prior to the
panel meeting required under section 513(e).
B. Transition Period
(Comment 3) While one commenter expressed agreement that the
proposed 1 year timeframe should be sufficient for manufacturers to
bring devices already on the market into compliance with the special
controls, another commenter suggested that FDA consider providing
additional transition time for the implementation of the final order.
The commenter suggested that this would assist manufacturers who are
working in good faith to meet the new requirements to prepare
submissions in advance of the influenza season and would provide for
product continuity among health care providers. The commenter did not
identify why 1 year would be an insufficient period of transition time.
(Response) The Panel recommended and FDA made the determination
that special controls, including the new minimum performance
requirements, are needed, in addition to general controls, to provide
reasonable assurance of safety and effectiveness for antigen based
RIDTs. We, therefore, do not believe, given the risk that poor
performance of antigen based RIDTs pose to public health, a delay in
implementation of more than 1 year is appropriate. FDA also understands
the need for a balanced approach that takes into account the time it
will take for
[[Page 3612]]
manufacturers to come into compliance with the special controls and
seeks to avoid disruption of access to these devices. With these
considerations in mind, FDA believes that a period of 1 year from the
publication date of this final order is appropriate for manufacturers
to come into compliance with the special controls and for those
manufacturers whose currently legally marketed devices do not meet the
minimum performance criteria to prepare and submit a 510(k) for a new
or significantly changed or modified device. Therefore, FDA does not
intend to enforce compliance with the special controls with respect to
currently legally marketed antigen based RIDT devices until 1 year
after the date of publication of this final order. FDA believes this
approach will help ensure the efficient and effective implementation of
the final order.
C. Clinical Performance Standards and Comparator Methods
(Comment 4) One comment recommended a transition to one common
reference method comparator: A molecular nucleic acid-based method. The
reasons cited for this recommendation included: (1) A level playing
field for all manufacturers and (2) better clarity for users, industry,
and the Agency. Another comment raised concerns about the unreliability
of the culture results due to non-standardized culture practices. In
addition, a commenter cautioned that providing two minimum performance
standards, one when compared to viral culture and another when compared
to a nucleic acid-based method, may have unintended consequences: (1)
Users may make false assumptions and choose a method based strictly on
the presented estimates of sensitivity and specificity without noting
the comparator reference method that was used to derive the performance
measures and (2) manufacturers may elect to conduct the method
comparison using both types of reference methods and submit the results
in support of a 510(k) even if only one of the comparisons meets the
minimum performance bar.
(Response) FDA appreciates the concern over the potential
consequences of allowing for the two performance levels based on
different comparator methods. The Agency carefully considered the
public feedback as well as the implications of eliminating the viral
culture comparator method as an acceptable comparator method used in
the evaluation of clinical performance of antigen based RIDTs. Some
important considerations were: (1) A lack of standardization of viral
culture methods among various laboratories, (2) an increasing
difficulty in procuring the services of a laboratory that is equipped
to perform viral culture procedures, (3) the wide availability of FDA-
cleared nucleic acid-based comparator methods among laboratories, (4)
the demonstrated high sensitivity of the nucleic acid-based methods
when compared to viral culture method (when properly performed) for the
detection of the influenza viruses, and (5) the reliability of the
viral culture method when performed properly.
In addition, we recognize that performance evaluation based on two
different comparators where each detects a different analyte (viral
culture methods detect viable virus particles while nucleic acid-based
methods detect the viral ribonucleic acids) requires two sets of
performance criteria resulting in performance measures that may not
allow for direct comparison between some devices. However, viral
culture method, when performed correctly, has been shown historically
to be accurate and remains a valid reference method for the detection
of influenza viruses. There are many influenza detecting devices
currently on the market that have been evaluated based on comparison
with viral culture comparator methods and met the performance criteria
set forth in Sec. 866.3328(b)(1)(ii) (21 CFR 866.3328). FDA has also
stated expressly in the special controls that a viral culture
comparator method used to demonstrate that a device meets the minimum
performance criteria at Sec. 866.3328(b)(1)(ii) must be correctly
performed.
At this time, the only currently appropriate and FDA accepted
comparator methods are: (1) An FDA-cleared nucleic acid-based test or
(2) a correctly performed viral culture method. However, FDA recognizes
that a comparator method at least as accurate as FDA-cleared nucleic
acid-based tests in the detection of the influenza viruses may be
established in the future. Based on that recognition and the available
information, the final order clarifies that other comparator methods,
if currently appropriate and FDA accepted, could be used to demonstrate
that the performance criteria requirements in Sec. 866.3328(b)(1)(i)
have been met. Therefore, if FDA determines at some point in the future
that another comparator method at least as accurate as FDA-cleared
nucleic acid-based tests has been established as a currently
appropriate comparator method, sponsors of premarket submissions for
antigen based RIDTs would have the option of demonstrating that their
devices meet the minimum performance criteria at Sec.
866.3328(b)(1)(i) based on a comparison to that additional currently
appropriate and FDA-accepted comparator method.
(Comment 5) Another commenter cautioned that the performance
estimates shown in the package inserts for these tests may be biased
due to the fact that the data have been generated under closely
controlled clinical trial procedures that use optimal sample types, a
time of sample collection post onset of symptoms, proper sample
storage, and time to testing. Because these conditions are often not
maintained in daily clinical use, the true performance of these assays
in ``real life'' settings may be different.
(Response) FDA acknowledges that the performance data in the device
labeling are estimates. All assays are subject to variation under real-
life circumstances when the assays are used in clinical practice.
However, FDA believes that premarket studies demonstrating performance
for these devices should include a variety of testing sites
representative of the settings in which the device will be used and
that a sufficient number of clinical specimens should be tested to
arrive at reasonable measures of confidence in the calculated
performance estimates (i.e., the lower bound of the two-sided 95
percent confidence interval (calculated by the Score method)), as
outlined in the guidance document entitled ``Establishing the
Performance Characteristics of In Vitro Diagnostic Devices for the
Detection or Detection and Differentiation of Influenza Viruses''
(https://www.fda.gov/RegulatoryInformation/Guidances/ucm079171.htm)
(``2011 Influenza Guidance document'').
(Comment 6) One commenter suggested that the proposed sensitivity
criteria for influenza A for antigen based RIDTs, when using a
molecular method as a comparator method, are less stringent than those
recorded in the 2011 Influenza Guidance document. The commenter stated
that it:
[I]s not clear . . . why the Special Controls for comparison to
a molecular method has become less stringent (sensitivity/PPA
estimate for Influenza A reduced from a point estimate of 90 percent
with a 95 percent CI lower bound of 80 percent, to a point estimate
of 80 percent with a 95 percent CI lower bound of 70 percent) when
the intention of a Special Controls document would presumably be
thought to make comparative criteria tighter overall.
The commenter made a reference to the statement in section 9.B.iii,
pages 26-27 of the 2011 Influenza Guidance
[[Page 3613]]
document (3d bullet), that states: ``Nucleic acid-based tests should
demonstrate at least 90% sensitivity for each analyte and each specimen
type with a lower bound of the two-sided 95% CI greater than 80%.'' The
commenter also questioned whether this determination was discussed and
used to scientifically justify the different criteria for sensitive
molecular methods, including polymerase chain reaction, which detect
inactive virus in the absence of viable viral particles in a sample,
and for viral detection in general when using a molecular comparative
method.
(Response) The quoted statement from the 2011 Influenza Guidance
document refers to the performance of nucleic acid-based devices, while
the performance criteria stated in the May 22, 2014, proposed order (79
FR 29387 at 29390) (Section VIII. Special Controls: . . . If the
manufacturer chooses to compare the device to an appropriate molecular
comparator method: The positive percent agreement for the device when
testing for Influenza A and Influenza B must be at least at the 80
percent point estimate with a lower bound of the 95 percent confidence
interval that is greater than or equal to 70 percent) refer to RIDTs
based on antigen detection, which are historically known to have a more
limited sensitivity due to the properties of the enzyme immunoassay
(EIA) technology. The relevant citation pertaining to the performance
of the rapid devices detecting influenza virus antigens may be found in
section 9.B.iii, pages 26-27 (1st and 2d bullet) of the 2011 Influenza
Guidance document, which states:
For rapid devices detecting influenza A virus antigen, we
recommend that you include a sufficient number of prospectively
collected samples for each specimen type claimed to generate a
sensitivity result with a lower bound of the two-sided 95% CI
greater than 60%. . . . For rapid devices detecting influenza B
virus antigen, we recommend that you include a sufficient number of
samples for each claimed specimen type to generate a result for
sensitivity with a lower bound of the two-sided 95% CI greater than
55%.
Nucleic acid-based assays that test for influenza are regulated
under Sec. 866.3980, Respiratory viral panel multiplex nucleic acid
assay, and have been held to higher performance criteria than antigen
based RIDTs because of their demonstrated ability to reach higher
sensitivity for viral detection. By establishing special controls with
minimum performance criteria for antigen based RIDTs, this final order
raises the required minimum performance criteria for viral detection by
the EIA based tests beyond the recommendations set forth in the 2011
Influenza Guidance Document. Nucleic acid-based tests continue to be
subject to the document entitled ``Class II Special Controls Guidance:
Respiratory Viral Panel Multiplex Nucleic Acid Assay'' (https://www.fda.gov/RegulatoryInformation/Guidances/ucm180307.htm), except when
the device detects and differentiates Influenza A subtype H1 and
subtype H3, in which case they are also subject to the document
entitled ``Class II Special Controls Guidance Document: Testing for
Detection and Differentiation of Influenza A Virus Subtypes Using
Multiplex Nucleic Acid Assays'' (https://www.fda.gov/downloads/medicaldevices/deviceregulationandguidance/guidancedocuments/ucm180310.pdf).
(Comment 7) One commenter criticized FDA for providing no
specifications for how to design a clinical performance study for
antigen based RIDT systems in terms of the proportion of samples that
should be presented for each age group. In addition, the comment
suggested that the performance estimates of different devices presented
in their package inserts may be biased due to the actual proportions of
age groups in the study (i.e., children vs. adults) and may not be
truly reflective of the performance in the population overall. The
commenter further suggested that the number of positive samples as well
as sensitivity and specificity (or positive percent agreement (PPA)/
negative percent agreement (NPA)) for each age group be presented in
each device's Instructions for Use to ensure transparency.
(Response) FDA's current recommendations for appropriate study
design can be found in the 2011 Influenza Guidance document, where
section 9.B.ii mentions that there should be a representative number of
positive samples (determined by the reference method) from each age
group and [the data should be presented] stratified by age (e.g.,
pediatric populations aged birth to 5 years, 6 to 21 years, . . .
adults aged 22-59, and greater than 60 years old) in addition to the
overall data summary table.
In addition, the 2011 Influenza Guidance document recommends
diversifying the location of the selected clinical sites and the
anticipated prevalence of influenza at the time of the study. Depending
on the site selection, the age composition of the subjects will vary,
but it is difficult to predict the different age groups at the outset
of a study. FDA evaluates assay performance estimates stratified by age
groups and determines whether the performance among different age
groups is similar before making the final decision regarding 510(k)
clearance. FDA encourages sponsors to use the pre-submission program to
discuss the premarket submission strategy and study design for their
specific devices. The pre-submission program is described in the
guidance document titled ``Requests for Feedback on Medical Device
Submissions: The Pre-Submission Program and Meetings with Food and Drug
Administration Staff'' found on FDA's Web site at https://www.fda.gov/downloads/medicaldevices/deviceregulationandguidance/guidancedocuments/ucm311176.pdf.
(Comment 8) A commenter also suggested that the proposed special
controls do not clearly state that data demonstrating that a device
meets the clinical performance criteria be obtained using prospective,
fresh samples and that this may be easily remedied by adding a
statement in the final special controls document indicating that
``clinical performance studies should be carried out on fresh,
prospective samples.''
(Response) The 2011 Influenza Guidance Document, in section 9.B.iii
Specimens, on p. 27, states that: ``[w]e recommend that you assess the
ability of your device to detect influenza viruses in fresh specimens
collected from patients suspected of having an influenza infection who
have been sequentially enrolled in the study (all-comers study)''. The
guidance further states that ``[f]rozen archived specimens may be
useful for analytical performance evaluations, but are not recommended
for studies to calculate clinical sensitivity or specificity''.
As the incidence of influenza varies from year to year and also
from region to region, testing of archived specimens may be acceptable
where fresh positive specimens are difficult to obtain. Performance
data obtained from testing retrospective archived samples are generally
evaluated and presented separately from data obtained with
prospectively collected specimens in the final device labeling.
(Comment 9) A further recommendation was made that the proposed
special controls include explicit wording to clarify that clinical
performance criteria must be met for each sample type claimed in the
proposed labeling submitted for clearance.
(Response) FDA agrees with this recommendation. The proposed
special controls have been modified to clarify that clinical
performance criteria must be met for each specimen type claimed in the
intended use of the device.
[[Page 3614]]
(Comment 10) One commenter asserted that the proposed acceptance
criteria for devices choosing to use viral culture as a comparator have
been determined using certain generalizations that can confound the
data. Referring to the Executive Summary document prepared for the
Panel meeting (Ref. 1), the commenter states that, for example, all
sample types and age ranges were included in the overall presentation
of sensitivity for various devices. The commenter objected that the
performance criteria, as presented in the Executive Summary document,
appear to have been subjectively defined. The commenter further
suggested that the purpose of tables 1 and 2 in the Executive Summary
was to imply that any device cleared prior to 2008 is assumed to have
variable and unacceptable performance, and that the performance
criteria for antigen based RIDTs were chosen specifically with the
intention of removing those devices from use. Additionally, the
commenter stated that the information, as presented in the publicly
available Executive Summary, did not make it clear that the data were
confounded and created an unfair marketing advantage for some
manufacturers.
(Response) The summary data tables presented in the Executive
Summary document submitted to the Panel in June 2013 were compiled to
illustrate the range in clinical performance among the antigen based
RIDTs available on the market in support of the reclassification effort
and were not aimed to remove devices cleared before 2008 from the
market, as the commenter suggests. The data for each assay presented in
table 1 in the Executive Summary document were based on the information
provided to FDA in support of the 510(k) submissions for those devices
and included results from all prospectively collected samples during
the clinical study conducted by the manufacturer, regardless of the
specimen type or the age of the patient (Ref. 1). The information in
this table shows a wide range of assay performances.
The data presented in table 2 in the Executive Summary document
were intended to illustrate the even broader range in sensitivity of
these assays as reported in the scientific literature and derived from
postmarket studies conducted in the field. The data in table 2 were
also based on combined results, regardless of sample type, patient age
and even influenza virus type. Although the commenter may consider the
data ``confounded,'' they were not meant to demonstrate statistical
validity but rather to illustrate that some of the currently available
antigen based RIDTs have clinically poor sensitivity even under the
controlled conditions of a clinical study conducted in support of a
regulatory submission. More importantly, the clinical performance of
these assays in the field, as reported in peer reviewed publications,
is considerably worse for some of these assays than was demonstrated in
the studies submitted to FDA to support their clearance. Overall, the
data contained in the two tables were intended to help illustrate the
sensitivity of the antigen based RIDTs available on the market, taking
into consideration the limitations of the available technology. The
data presented in both tables in the Executive Summary document support
that improved influenza detection devices are needed to benefit public
health in detection, treatment, and infection control with regard to
the influenza viruses.
(Comment 11) Some commenters inquired about the process for
notifying manufacturers that their assays do not meet the new
performance criteria and expressed concern that manufacturers should be
allowed sufficient transition time to develop new or modified influenza
detection devices and to submit new 510(k)s for those products.
(Response) A manufacturer will not be individually notified that
its product does not comply with the new special controls; each
manufacturer of an antigen based RIDT is responsible for compliance
with these special controls, including the minimum performance
criteria. If an antigen based RIDT device does not meet the new
performance criteria set forth in this final order, the device may be
considered adulterated under section 501(f)(1)(B) of the FD&C Act (21
U.S.C. 351(f)(1)(B)), and manufacturers must cease marketing of the
device. However, as outlined in section IV, ``Implementation
Strategy,'' FDA does not intend to enforce compliance with the special
controls with respect to currently legally marketed antigen based RIDT
devices until 1 year after the date of publication of this final order.
A manufacturer may contact the Center for Devices and Radiological
Health's (CDRH) Division of Microbiology Devices in the Office of In
Vitro Diagnostics and Radiological Health (OIR) with any specific
questions.
(Comment 12) One commenter inquired whether there will be an
appeals mechanism for manufacturers and what specific steps would be
available for manufacturers.
(Response) No new appeals mechanisms will be implemented for those
manufacturers whose assays do not comply with the new special controls.
However, there are processes available to outside stakeholders to
request additional review of decisions or actions by the CDRH. For more
information, see the FDA guidance document entitled ``Center for
Devices and Radiological Health Appeals Processes--Guidance for
Industry and Food and Drug Administration Staff'' (https://www.fda.gov/RegulatoryInformation/Guidances/ucm284651.htm).
D. Annual Analytical Reactivity Testing
1. Access to Strains
(Comment 13) Commenters expressed concerns about whether all
manufacturers, regardless of their size or resources, will have equal
access to the samples needed to conduct the annual analytical
reactivity testing in compliance with the new special controls. One of
the commenters noted that there may be challenges to specimen access
for some manufacturers under the World Health Organization (WHO)
Pandemic Influenza Preparedness (PIP) Framework as well as potential
impact on accessing the influenza strains sourced by the WHO Global
Influenza Surveillance and Response System (GISRS). The commenter asked
if manufacturers required to perform the annual testing would need to
participate in the PIP framework to access GISRS specimens. The
commenter further stated that unless all companies are able to access
specimens in a fair, timely and non-cost restrictive manner to comply
with the new postmarket requirements, some innovators may be unable to
continue to develop new influenza diagnostics.
(Response) CDC intends to make available an annual analytical
reactivity test panel, which is an annual standardized seasonal
influenza virus test panel, so that manufacturers can comply with the
annual analytical reactivity testing requirement. If the annual strains
are not available from CDC, FDA will identify an alternative source for
obtaining the requisite strains. The selection of viruses in the CDC
annual analytical reactivity test panels is expected to be largely
based on the strains selected by WHO for the annual vaccine and will be
distributed for annual analytical reactivity testing or analytical
validation in support of new 510(k) submissions for antigen based RIDT
devices. We expect that the panel will primarily consist of human
viruses that circulated in the recent influenza seasons. FDA and CDC do
not believe that manufacturers will need to enter
[[Page 3615]]
agreements under the PIP Framework to access influenza viral strains in
the manner described in this final order for the sole purpose of
conducting testing to comply with the special controls at Sec.
866.3328(b)(3) and (4). The annual analytical reactivity test panel
will be made available to manufacturers at the same time, including
those that require it for the annual analytical reactivity testing as
well as those who are developing new or modified influenza assays. CDC
and FDA are committed to facilitating equal access for manufacturers to
the annual analytical reactivity test panel and are prepared to
consider any unforeseen circumstances in an equitable manner.
(Comment 14) Another commenter expressed a concern regarding
whether the requisite strain(s) will be made available in sufficient
time to allow manufacturers to conduct the studies and have the data
available in the labeling or on the manufacturer's Web site within the
timeframe specified for both annual and emergency analytical reactivity
testing. The comment stated that for most manufacturers, the process of
testing and making a change in labeling would take a minimum of 90 days
from receipt of samples.
(Response) Under the new special controls, the results of the last
3 years of annual analytical reactivity testing conducted from the date
that the device was given marketing authorization by FDA must be
incorporated into the device's labeling in the manner discussed in
Sec. 866.3328(b)(3)(iii) by July 31 of each calendar year. CDC and FDA
are committed to making available or designating an alternative source
for the annual analytical reactivity test panel with sufficient time
for all manufacturers to conduct the testing and include the results in
their device's labeling within the required timeframe.
Similarly, in the case of emergency analytical reactivity testing,
as described in the special controls at Sec. 866.3328(b)(4), after CDC
makes the viral samples available for testing, FDA will notify the
manufacturers of the availability of the samples. The manufacturers
will have 60 days to perform the testing of the viral samples and to
incorporate the results into the device's labeling in the manner
discussed in Sec. 866.3328(b)(4)(ii). If a manufacturer is concerned
about meeting these timelines due to time needed to amend device
labeling that physically accompanies the device, the manufacturer may
pursue the Sec. 866.3328(b)(3)(iii)(B) and (b)(4)(ii)(B) alternatives,
which allow manufacturers to provide the results as electronic labeling
via the manufacturer's public Web site that can be reached via a
hyperlink found in the device's label or in other labeling that
physically accompanies the device. If a manufacturer chooses the option
to post analytical reactivity testing results on its Web site, it would
be subject to the requirements of section 502(f) of the FD&C Act (21
U.S.C. 352(f)) that provides that required labeling for prescription
devices intended for use in health care facilities or by a health care
professional and required labeling for in vitro diagnostic devices
intended for use by health care professionals or in blood
establishments may be made available solely by electronic means as long
as the labeling complies with the law, and that the manufacturer
affords users the opportunity to request the labeling in paper form,
and that after a request, promptly provides the requested information
without additional cost.
If a manufacturer provides the hyperlink to a public Web site at
which annual analytical reactivity and emergency testing data may be
viewed, generally no updates would be needed to the labeling that
physically accompanies the device when meeting the annual analytical
reactivity testing requirements under Sec. 866.3328(b)(3) or the
emergency analytical reactivity testing requirements under Sec.
866.3328(b)(4). If annual or emergency analytical reactivity testing
reveals that the device is unable to detect one or more strains, the
manufacturer would need to include a limitation in the device labeling,
as further discussed in our response to Comment 21.
2. Acquisition of the Annual Analytical Reactivity Test Panel and
Reporting of Results
(Comment 15) Commenters expressed concern about the logistics of
the implementation of the new requirement for the annual analytical
reactivity testing. One commenter stated that a clear mechanism was not
outlined in the proposed order for activities leading to the reporting
of results.
(Response) The activities leading to the reporting of results will
include acquisition of the annual analytical reactivity test panel and
analytical reactivity testing following the standardized protocol
included with the test panel, which will be a standardized protocol
considered and determined by FDA to be acceptable and appropriate.
Results must be reported by updating the device's labeling in
accordance with Sec. 866.3328(b)(3)(iii). As previously stated, CDC
and FDA are committed to working with the manufacturers of the
influenza tests to facilitate timely and equitable access to the
influenza virus annual analytical reactivity test panel. CDC has
developed a Web site (https://www.cdc.gov/flu/dxfluviruspanel/index.htm)
where the manufacturers can affirm their need for the annual analytical
reactivity test panel, referred to by CDC as the ``CDC Influenza Virus
Panel,'' to comply with the annual analytical reactivity testing
requirement. The CDC panel will be distributed along with certificates
of analyses for the viruses and a standardized testing protocol,
considered and determined by FDA to be acceptable and appropriate,
instructing the user on handling and testing of the provided virus
stocks in the test panel. There are currently no plans to post the
analytical reactivity testing data generated by the manufacturers on
the CDC Web site. For any questions related to the test procedure,
manufacturers may contact CDC or FDA as specified in the information
included with the influenza virus analytical reactivity test panel. CDC
will serve as the contact for questions pertaining to viruses, and FDA
will serve as the contact for all regulatory and reporting issues.
(Comment 16) Commenters expressed concern about the continued
availability of the test panel from CDC due to the future potential for
limited resources at CDC or FDA.
(Response) In a case where the influenza virus analytical
reactivity test panel is not available from CDC due to unforeseen
limitations in resources, an alternate source of influenza strains for
use in conducting the annual analytical reactivity testing will be
identified by FDA, in consultation with CDC. An example of an alternate
source could be a commercial vendor that specializes in acquisition,
authentication, production, and preservation of microorganisms.
(Comment 17) Commenters suggested that the industry should be
engaged for feedback in the development of the standardized testing
protocol.
(Response) A standardized protocol has been developed by CDC in
consultation with FDA and will be provided to manufacturers with the
annual analytical reactivity test panel. The protocol uses basic
principles for working with virus stocks and is general enough to allow
for use with various devices. For any questions related to the testing
procedure, manufacturers can contact CDC or FDA. CDC will serve as the
contact for questions pertaining to viruses, and FDA will serve as the
contact for all regulatory and reporting issues.
(Comment 18) One commenter inquired whether the analytical
reactivity testing could be conducted using a modified limit of
detection
[[Page 3616]]
(LoD) protocol, where 60 replicates are tested over 3 dilutions with
positivity rates between 80 and 99 percent followed by linear
regression to calculate the specific concentration that corresponds to
a positivity rate of 95 percent.
(Response) This approach is acceptable to use in the determination
of a LoD of an antigen based RIDT assay. However, manufacturers must
follow the protocol included with the influenza virus analytical
reactivity test panel, which will be a standardized protocol considered
and determined by FDA to be acceptable and appropriate. We believe the
standardized protocol will be less burdensome than this commenter's
proposal and will help ensure that the results generated allow for
comparability between different devices, as all devices will have
followed a common standardized testing protocol.
(Comment 19) One commenter asked whether interested manufacturers
would have an option to have the testing conducted by an independent
laboratory, such as a laboratory at a university.
(Response) Yes, a manufacturer may contract an outside laboratory
to conduct the testing on its behalf.
(Comment 20) One commenter raised a concern that customers without
access to a manufacturer's Web site may not be able to access the
annual and/or emergency analytical reactivity testing information;
therefore, the commenter suggested that an alternate method of contact
should be provided in the product labeling.
(Response) All in vitro diagnostic devices are required by
regulation to state on the label and in the product labeling the name
and place of business of the manufacturer, packer, or distributor Sec.
809.10(a)(8) and (b)(14) (21 CFR 809.10(a)(8) and (b)(14)), except
where such information is not applicable, or as otherwise specified in
a standard for a particular product class.
In addition, in accordance with Sec. 866.3328(b)(3)(iii) the
results of the annual analytical reactivity testing must either be in
the Sec. 809.10(b) compliant labeling that physically accompanies the
device or be provided as electronic labeling via the manufacturer's
public Web site that can be reached via a hyperlink prominently found
in the device's label or in other labeling that physically accompanies
the device. If the manufacturer chooses the Web site option, it would
be subject to the requirements of section 502(f) of the FD&C Act, which
provides that required labeling for prescription devices intended for
use in health care facilities or by a health care professional and
required labeling for in vitro diagnostic devices intended for use by
health care professionals or in blood establishments may be made
available solely by electronic means, as long as the labeling complies
with the law, and that the manufacturer affords users the opportunity
to request the labeling in paper form, and that after a request,
promptly provides the requested information without additional cost.
Therefore, a manufacturer is already required to provide an opportunity
for a health care professional to request the annual analytical
reactivity test results in paper form.
(Comment 21) One commenter raised a question about notifying the
public when a test is non-reactive with any of the strains included in
the influenza virus analytical reactivity test panel provided by CDC
and whether the product labeling will be updated annually. In
particular, the commenter questioned how labeling changes to reflect
absence of reactivity would be communicated to users who have already
purchased the test.
(Response) This final order requires that the results of the last 3
years of annual analytical reactivity testing conducted from the date
that the device was given marketing authorization by FDA be included as
part of the device's labeling by July 31 of each calendar year.
Modification of the labeling solely to incorporate analytical
reactivity testing results required under Sec. 866.3328(b)(3)(iii) or
(b)(4)(ii) can be made without an official submission to FDA. In a case
where one or more strains are shown not to be detected by the device
during annual analytical reactivity testing under Sec. 866.3328(b)(3)
or emergency analytical reactivity testing under Sec. 866.3328(b)(4),
the manufacturer will need to include a limitation in the device
labeling regarding reactivity with the specific strain(s) that were not
detected by the device. Without such a limitation, the device would not
meet the labeling requirements of Sec. 809.10(b).
(Comment 22) One commenter raised a question about whether there
will be a guidance document issued on a yearly basis to interpret the
results of the analytical reactivity testing for that year.
(Response) FDA does not intend to issue a guidance document on how
to interpret the results of the analytical reactivity testing each
year, as the result interpretations are stated in the CDC information
sheet that will be distributed with the CDC annual analytical
reactivity test panel. The annual analytical reactivity testing is
intended to evaluate whether the assay detects each strain included in
the annual analytical reactivity test panel; however, that testing does
not provide direct information about how the assay performs when used
with clinical specimens that are collected directly from patients. Any
positive result obtained during analytical reactivity testing performed
with the annual influenza virus analytical reactivity test panel, at
any viral concentration/dilution, indicates that the assay is reactive
with that virus; however, the minimal concentration of the virus that
is needed for the detection (assay sensitivity) may vary. Since the
difference in analytical reactivity does not necessarily translate into
an appreciable difference in performance when testing clinical
specimens, it is important to emphasize that the results should not be
over-interpreted for clinical purposes.
(Comment 23) One commenter suggested further collaboration between
the Agency and influenza test manufacturers in establishing the
regulatory process for implementing the labeling change before a final
``Notice to Industry'' or other document is published. The commenter
further recommended that FDA specify an interactive process, whereby
individual manufacturers can seek guidance, particularly if they
encounter issues that may impede timely publication of annual and
emergency analytical reactivity testing data (e.g., if the matrix used
in the preparation of the virus strains in the test panel causes
invalid results with a particular device).
(Response) Interactive communication with manufacturers is common
practice among the reviewers and the managers in CDRH. Manufacturers
are encouraged to contact CDRH's OIR with questions or about issues
related to the new requirements. In addition, the CDRH pre-submission
program is designed to allow sponsors the opportunity to obtain
targeted FDA feedback in response to specific questions related to
product development, including planned non-clinical evaluations,
proposed clinical study protocols, or data requirements prior to making
a submission to the Agency.
E. Timely Testing of Newly Emergent Strains
(Comment 24) Similar concerns to those surrounding the annual
reactivity testing requirement were raised in regard to the emergency
testing of emergent strains. In addition, one comment expressed support
for specifying a timeline for reporting the results after the samples
become available.
[[Page 3617]]
(Response) Section 866.3328(b)(4)(ii) requires that, in certain
emergency or potential emergency situations involving an influenza
viral strain, the results of analytical reactivity testing with the
emerging virus(es) must be made available within 60 days from the date
that FDA notifies antigen based RIDT manufacturers that characterized
viral samples are available. The results of the influenza emergency
analytical reactivity testing must be disclosed in a tabular format in
a similar manner as the results of the annual analytical reactivity
testing (i.e., either by placing the table directly in the device's
Sec. 809.10(b) compliant labeling that physically accompanies the
device in the section of the labeling devoted to analytical reactivity
testing, or in a section of the device's label or in labeling that
physically accompanies the device, by prominently providing a hyperlink
to a part of the manufacturer's Web site where the analytical
reactivity testing data can be found). As previously discussed,
modification of the labeling solely to incorporate annual analytical
reactivity testing results under Sec. 866.3328(b)(3)(iii) or emergency
analytical reactivity testing results under Sec. 866.3328(b)(4)(ii)
can be made without an official submission to FDA. In a case where one
or more strains are shown not to be detected by the device during
annual analytical reactivity testing under Sec. 866.3328(b)(3) or
emergency analytical reactivity testing under Sec. 866.3328(b)(4), the
manufacturer will need to include a limitation in the device labeling
regarding reactivity with the specific strain(s) that were not detected
by the device. Without such a limitation the device would not meet the
labeling requirements of Sec. 809.10(b).
FDA is also clarifying the special controls to be more precise
regarding the situations in which emergency analytical reactivity
testing is required. Under section 564(a)-(b) of the FD&C Act (21
U.S.C. 360bbb-3(a)-(b)), the Secretary of Health and Human Services
(HHS) may authorize the introduction into interstate commerce of a
drug, device, or biologic product intended for use in an actual or
potential emergency (referred to as ``emergency use'') after making a
declaration, under section 564(b)(1) of the FD&C Act, that
circumstances exist justifying the authorization. Such a declaration
must be based on one of the following actions listed at section
564(b)(1)(A)-(D) of the FD&C Act:
A determination by the Secretary of Homeland Security that
there is a domestic emergency, or a significant potential for a
domestic emergency, involving a heightened risk of attack with a
chemical, biological, radiological, or nuclear (CBRN) agent or agents;
A determination by the Secretary of Defense that there is
a military emergency, or a significant potential for a military
emergency, involving a heightened risk to U.S. military forces of
attack with a CBRN agent or agents;
A determination by the Secretary of HHS that there is a
public health emergency, or a significant potential for a public health
emergency, that affects, or has a significant potential to affect,
national security or the health and security of U.S. citizens living
abroad, and that involves a CBRN agent or agents, or a disease or
condition that may be attributable to such agent or agents; or
The identification of a material threat, by the Secretary
of Homeland Security under section 319F-2 of the Public Health Service
(PHS) Act, that is sufficient to affect national security or the health
and security of U.S. citizens living abroad.
If one of these four actions that can provide the basis for the
Secretary of HHS to make a declaration under section 564(b)(1) of the
FD&C Act occurs with respect to an influenza viral strain, then, after
being notified that characterized viral samples are available from CDC,
antigen based RIDT manufacturers must conduct analytical reactivity
testing with those samples and make the results available in their
device labeling within the timeframes set forth in Sec.
866.3328(b)(4).
In addition, the Secretary of HHS may determine under section
319(a) of the PHS Act (42 U.S.C. 247d(a)) that a disease or disorder
presents a public health emergency or that a public health emergency
otherwise exists. In the event of such a determination under section
319(a) of the PHS Act with respect to an influenza viral strain, then,
after being notified that characterized viral samples are available
from CDC, antigen based RIDT manufacturers would also need to conduct
analytical reactivity testing with those samples and make the results
available in their device labeling within the timeframes set forth in
Sec. 866.3328(b)(4).
The final order also modifies the special controls to require that
any emergency reactivity test results added to antigen based RIDT
device labeling under Sec. 866.3328(b)(4)(ii) remain in the labeling
for a period of 3 years. Emerging influenza strains may still be
circulating after the statutory actions described under section
564(b)(1)(A)-(D) of the FD&C Act and section 319(a) of the PHS Act have
terminated. The change will align the period that emergency analytical
reactivity test results must remain in device labeling with the
requirement in Sec. 866.3328(b)(3)(iii) that manufacturers provide the
last 3 years of annual analytical reactivity testing in the device
labeling. FDA believes that this makes the labeling requirements in the
special controls more clear and consistent for industry.
As discussed previously, after reviewing the comments received
along with the proposed order and the Panel's recommendations, FDA is
making a few clarifications and modifications to the special controls
for antigen based RIDTs. These include: (1) Clarifying that clinical
performance criteria must be met for each specimen type claimed in the
intended use of the device; (2) clarifying that manufacturers of future
antigen based RIDT devices may use a currently appropriate and FDA
accepted comparator method other than comparison to an FDA-cleared
nucleic acid based-test or viral culture methods to demonstrate that
those devices meet the clinical performance criteria, if such a
comparator method is established; (3) clarifying that a manufacturer
choosing to provide analytical reactivity testing results via its
public Web site must prominently provide hyperlink to that Web site in
the device's label or in other labeling that physically accompanies the
device; (4) clarifying the circumstances in which emergency analytical
reactivity testing is required under Sec. 866.3328(b)(4); and (5)
requiring results of such emergency analytical reactivity testing to
remain in the device labeling for a period of 3 years.
III. The Final Order
Under section 513(e) of the FD&C Act, FDA is adopting its findings
as published in the preamble to the proposed order, with the
modifications discussed in section II of this final order. FDA is
issuing this final order to reclassify antigen based rapid influenza
virus antigen detection test systems intended to detect influenza virus
antigen directly from clinical specimens that are currently regulated
as influenza virus serological reagents under Sec. 866.3330 from class
I into class II with special controls and into a new device
classification regulation for ``influenza virus antigen detection test
systems.'' Currently, antigen based RIDTs are mostly found under
product codes GNX and GNT. However, any antigen based rapid influenza
virus antigen detection test system intended to detect influenza virus
antigen directly from clinical specimens that is currently regulated as
influenza virus serological reagents under Sec. 866.3330 is subject to
this
[[Page 3618]]
reclassification regardless of the product code to which it is
currently assigned.
Section 510(m) of the FD&C Act provides that a class II device may
be exempt from the premarket notification requirements under section
510(k) of the FD&C Act, if the Agency determines that premarket
notification is not necessary to provide reasonable assurance of the
safety and effectiveness of the device. For this device, FDA believes
that premarket notification is necessary to provide reasonable
assurance of safety and effectiveness. Therefore, this type of device
is not exempt from premarket notification requirements.
In addition, FDA believes that special controls that: (1) Identify
the minimum acceptable performance criteria; (2) require use of a
currently appropriate and FDA accepted comparator method for
establishing performance of new antigen based RIDTs; (3) require annual
analytical reactivity testing of contemporary influenza strains; and
(4) require analytical reactivity testing of newly emerging strains
under certain situations involving an emergency or potential for an
emergency, are necessary to provide reasonable assurance of safety and
effectiveness of these devices.
IV. Implementation Strategy
The special controls identified in this final order are effective
February 13, 2017.
For antigen based RIDTs that have not been legally
marketed prior to February 13, 2017, or that have been legally marketed
but are required to submit a 510(k) under 21 CFR 807.81(a)(3) because
the device is about to be significantly changed or modified,
manufacturers must obtain 510(k) clearance, among other relevant
requirements, and demonstrate compliance with the special controls
included in this final order, before marketing their new or changed
device. If a manufacturer markets such a device after February 13, 2017
without obtaining 510(k) clearance and demonstrating compliance with
the special controls included in this final order, then FDA would
consider taking action against such a manufacturer under its usual
enforcement policies.
For antigen based RIDTs that have been legally marketed
prior to February 13, 2017, FDA does not intend to enforce compliance
with the special controls until January 12, 2018. If a manufacturer
markets such a device after January 12, 2018, and that device does not
comply with the special controls, then FDA would consider taking action
against such a manufacturer under its usual enforcement policies.
FDA believes that a period of 1 year from the publication date of
this final order is appropriate for manufacturers to come into
compliance with the special controls and for those manufacturers whose
currently legally marketed devices do not meet the minimum performance
criteria to prepare and submit a 510(k) for a new or significantly
changed or modified device. FDA believes this approach will help ensure
the efficient and effective implementation of the order.
V. Analysis of Environmental Impact
The Agency has determined under 21 CFR 25.34(b) that this
reclassification 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
This administrative order establishes special controls that refer
to previously approved collections of information found in other FDA
regulations and guidance. These collections of information are subject
to review by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections
of information in part 807, subpart E, regarding premarket notification
submissions have been approved under OMB control number 0910-0120; the
collections of information in 21 CFR part 812 regarding investigational
device exemptions have been approved under OMB control number 0910-
0078; the collections of information in 21 CFR part 801 and Sec.
809.10 have been approved under OMB control number 0910-0485; and the
collections of information regarding pre-submissions have been approved
under OMB control number 0910-0756.
VII. Codification of Orders
Prior to the amendments by FDASIA, section 513(e) of the FD&C Act
provided for FDA to issue regulations to reclassify devices. Although
section 513(e) of the FD&C Act, as amended, requires FDA to issue final
orders rather than regulations, FDASIA also provides for FDA to revoke
previously issued regulations by order. FDA will continue to codify
classifications and reclassifications in the Code of Federal
Regulations (CFR). Changes resulting from final orders will appear in
the CFR as changes to codified classification determinations or as
newly codified orders. Therefore, under section 513(e)(1)(A)(i) of the
FD&C Act, as amended by FDASIA, in this final order, we are codifying
the reclassification of antigen based RIDTs into class II (special
controls).
VIII. Reference
The following reference is on display in the Division of Dockets
Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane,
Rm. 1061, Rockville, MD 20852, and is available for viewing by
interested persons between 9 a.m. and 4 p.m., Monday through Friday; it
is also available electronically at https://www.regulations.gov. FDA
has verified the Web site addresses, as of the date this document
publishes in the Federal Register, but Web sites are subject to change
over time.
1. Transcript and other meeting materials of FDA's Microbiology
Devices Panel Meeting held on June 13, 2013, are available on FDA's
Web site at: https://www.fda.gov/AdvisoryCommittees/ucm351035.htm.
List of Subjects in 21 CFR Part 866
Biologics, Laboratories, Medical devices.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs, 21 CFR part
866 is amended as follows:
PART 866--IMMUNOLOGY AND MICROBIOLOGY DEVICES
0
1. The authority citation for part 866 continues to read as follows:
Authority: 21 U.S.C. 351, 360, 360c, 360e, 360j, 371.
0
2. Add Sec. 866.3328 to subpart D to read as follows:
Sec. 866.3328 Influenza virus antigen detection test system.
(a) Identification. An influenza virus antigen detection test
system is a device intended for the qualitative detection of influenza
viral antigens directly from clinical specimens in patients with signs
and symptoms of respiratory infection. The test aids in the diagnosis
of influenza infection and provides epidemiological information on
influenza. Due to the propensity of the virus to mutate, new strains
emerge over time which may potentially affect the performance of these
devices. Because influenza is highly contagious and may lead to an
acute respiratory tract infection causing severe illness and even
death, the accuracy of these
[[Page 3619]]
devices has serious public health implications.
(b) Classification. Class II (special controls). The special
controls for this device are:
(1) The device's sensitivity and specificity performance
characteristics or positive percent agreement and negative percent
agreement, for each specimen type claimed in the intended use of the
device, must meet one of the following two minimum clinical performance
criteria:
(i) For devices evaluated as compared to an FDA-cleared nucleic
acid based-test or other currently appropriate and FDA accepted
comparator method other than correctly performed viral culture method:
(A) The positive percent agreement estimate for the device when
testing for influenza A and influenza B must be at the point estimate
of at least 80 percent with a lower bound of the 95 percent confidence
interval that is greater than or equal to 70 percent.
(B) The negative percent agreement estimate for the device when
testing for influenza A and influenza B must be at the point estimate
of at least 95 percent with a lower bound of the 95 percent confidence
interval that is greater than or equal to 90 percent.
(ii) For devices evaluated as compared to correctly performed viral
culture method as the comparator method:
(A) The sensitivity estimate for the device when testing for
influenza A must be at the point estimate of at least 90 percent with a
lower bound of the 95 percent confidence interval that is greater than
or equal to 80 percent. The sensitivity estimate for the device when
testing for influenza B must be at the point estimate of at least 80
percent with a lower bound of the 95 percent confidence interval that
is greater than or equal to 70 percent.
(B) The specificity estimate for the device when testing for
influenza A and influenza B must be at the point estimate of at least
95 percent with a lower bound of the 95 percent confidence interval
that is greater than or equal to 90 percent.
(2) When performing testing to demonstrate the device meets the
requirements in paragraph (b)(1) of this section, a currently
appropriate and FDA accepted comparator method must be used to
establish assay performance in clinical studies.
(3) Annual analytical reactivity testing of the device must be
performed with contemporary influenza strains. This annual analytical
reactivity testing must meet the following criteria:
(i) The appropriate strains to be tested will be identified by FDA
in consultation with the Centers for Disease Control and Prevention
(CDC) and sourced from CDC or an FDA-designated source. If the annual
strains are not available from CDC, FDA will identify an alternative
source for obtaining the requisite strains.
(ii) The testing must be conducted according to a standardized
protocol considered and determined by FDA to be acceptable and
appropriate.
(iii) By July 31 of each calendar year, the results of the last 3
years of annual analytical reactivity testing must be included as part
of the device's labeling. If a device has not been on the market long
enough for 3 years of annual analytical reactivity testing to have been
conducted since the device received marketing authorization from FDA,
then the results of every annual analytical reactivity testing since
the device received marketing authorization from FDA must be included.
The results must be presented as part of the device's labeling in a
tabular format, which includes the detailed information for each virus
tested as described in the certificate of authentication, either by:
(A) Placing the results directly in the device's Sec. 809.10(b) of
this chapter compliant labeling that physically accompanies the device
in a separate section of the labeling where the analytical reactivity
testing data can be found; or
(B) In the device's label or in other labeling that physically
accompanies the device, prominently providing a hyperlink to the
manufacturer's public Web site where the analytical reactivity testing
data can be found. The manufacturer's home page, as well as the primary
part of the manufacturer's Web site that discusses the device, must
provide a prominently placed hyperlink to the Web page containing this
information and must allow unrestricted viewing access.
(4) If one of the actions listed at section 564(b)(1)(A)-(D) of the
Federal Food, Drug, and Cosmetic Act occurs with respect to an
influenza viral strain, or if the Secretary of Health and Human
Services (HHS) determines, under section 319(a) of the Public Health
Service Act, that a disease or disorder presents a public health
emergency, or that a public health emergency otherwise exists, with
respect to an influenza viral strain:
(i) Within 30 days from the date that FDA notifies manufacturers
that characterized viral samples are available for test evaluation, the
manufacturer must have testing performed on the device with those viral
samples in accordance with a standardized protocol considered and
determined by FDA to be acceptable and appropriate. The procedure and
location of testing may depend on the nature of the emerging virus.
(ii) Within 60 days from the date that FDA notifies manufacturers
that characterized viral samples are available for test evaluation and
continuing until 3 years from that date, the results of the influenza
emergency analytical reactivity testing, including the detailed
information for the virus tested as described in the certificate of
authentication, must be included as part of the device's labeling in a
tabular format, either by:
(A) Placing the results directly in the device's Sec. 809.10(b) of
this chapter compliant labeling that physically accompanies the device
in a separate section of the labeling where analytical reactivity
testing data can be found, but separate from the annual analytical
reactivity testing results; or
(B) In a section of the device's label or in other labeling that
physically accompanies the device, prominently providing a hyperlink to
the manufacturer's public Web site where the analytical reactivity
testing data can be found. The manufacturer's home page, as well as the
primary part of the manufacturer's Web site that discusses the device,
must provide a prominently placed hyperlink to the Web page containing
this information and must allow unrestricted viewing access.
Dated: January 4, 2017.
Leslie Kux,
Associate Commissioner for Policy.
[FR Doc. 2017-00199 Filed 1-11-17; 8:45 am]
BILLING CODE 4164-01-P