[DOCID: f:publ085.110]
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Public Law 110-85 110th Congress
An Act
To amend the Federal Food, Drug, and Cosmetic Act to revise and extend the user-fee programs for prescription drugs and for medical devices, to enhance the postmarket authorities of the Food and Drug Administration
with respect to the safety of drugs, and for other purposes. <<NOTE: Sept. 27, 2007 - [H.R. 3580]>>
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, <<NOTE: Food and Drug Administration Amendments Act of 2007.>> SECTION 1. <<NOTE: 21 USC 301 note.>> SHORT TITLE.
This Act may be cited as the ``Food and Drug Administration Amendments Act of 2007''. SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Short title. Sec. 2. Table of contents.
TITLE I--PRESCRIPTION DRUG USER FEE AMENDMENTS OF 2007
Sec. 101. Short title; references in title; finding. Sec. 102. Definitions. Sec. 103. Authority to assess and use drug fees. Sec. 104. Fees relating to advisory review of prescription-drug
television advertising. Sec. 105. Reauthorization; reporting requirements. Sec. 106. Sunset dates. Sec. 107. Effective date. Sec. 108. Savings clause. Sec. 109. Technical amendment; conforming amendment.
TITLE II--MEDICAL DEVICE USER FEE AMENDMENTS OF 2007
Sec. 201. Short title; references in title; finding.
Subtitle A--Fees Related to Medical Devices
Sec. 211. Definitions. Sec. 212. Authority to assess and use device fees. Sec. 213. Reauthorization; reporting requirements. Sec. 214. Savings clause. Sec. 215. Additional authorization of appropriations for postmarket
safety information.
Sec. 216. Effective date. Sec. 217. Sunset clause.
Subtitle B--Amendments Regarding Regulation of Medical Devices
Sec. 221. Extension of authority for third party review of premarket notification.
Sec. 222. Registration. Sec. 223. Filing of lists of drugs and devices manufactured, prepared,
propagated, and compounded by registrants; statements; accompanying disclosures.
Sec. 224. Electronic registration and listing. Sec. 225. Report by Government Accountability Office. Sec. 226. Unique device identification system. Sec. 227. Frequency of reporting for certain devices.
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Sec. 228. Inspections by accredited persons. Sec. 229. Study of nosocomial infections relating to medical devices. Sec. 230. Report by the Food and Drug Administration regarding labeling
information on the relationship between the use of indoor tanning devices and development of skin cancer or other skin damage.
TITLE III--PEDIATRIC MEDICAL DEVICE SAFETY AND IMPROVEMENT ACT OF 2007
Sec. 301. Short title. Sec. 302. Tracking pediatric device approvals. Sec. 303. Modification to humanitarian device exemption. Sec. 304. Encouraging pediatric medical device research. Sec. 305. Demonstration grants for improving pediatric device
availability. Sec. 306. Amendments to office of pediatric therapeutics and pediatric
advisory committee. Sec. 307. Postmarket surveillance.
TITLE IV--PEDIATRIC RESEARCH EQUITY ACT OF 2007
Sec. 401. Short title. Sec. 402. Reauthorization of Pediatric Research Equity Act. Sec. 403. Establishment of internal committee. Sec. 404. Government Accountability Office report.
TITLE V--BEST PHARMACEUTICALS FOR CHILDREN ACT OF 2007
Sec. 501. Short title. Sec. 502. Reauthorization of Best Pharmaceuticals for Children Act. Sec. 503. Training of pediatric pharmacologists.
TITLE VI--REAGAN-UDALL FOUNDATION
Sec. 601. The Reagan-Udall Foundation for the Food and Drug Administration.
Sec. 602. Office of the Chief Scientist. Sec. 603. Critical path public-private partnerships.
TITLE VII--CONFLICTS OF INTEREST
Sec. 701. Conflicts of interest.
TITLE VIII--CLINICAL TRIAL DATABASES
Sec. 801. Expanded clinical trial registry data bank.
TITLE IX--ENHANCED AUTHORITIES REGARDING POSTMARKET SAFETY OF DRUGS
Subtitle A--Postmarket Studies and Surveillance
Sec. 901. Postmarket studies and clinical trials regarding human drugs; risk evaluation and mitigation strategies.
Sec. 902. Enforcement. Sec. 903. No effect on withdrawal or suspension of approval. Sec. 904. Benefit-risk assessments. Sec. 905. Active postmarket risk identification and analysis. Sec. 906. Statement for inclusion in direct-to-consumer advertisements
of drugs. Sec. 907. No effect on veterinary medicine. Sec. 908. Authorization of appropriations. Sec. 909. Effective date and applicability.
Subtitle B--Other Provisions to Ensure Drug Safety and Surveillance
Sec. 911. Clinical trial guidance for antibiotic drugs. Sec. 912. Prohibition against food to which drugs or biological products
have been added. Sec. 913. Assuring pharmaceutical safety. Sec. 914. Citizen petitions and petitions for stay of agency action. Sec. 915. Postmarket drug safety information for patients and providers. Sec. 916. Action package for approval. Sec. 917. Risk communication. Sec. 918. Referral to advisory committee. Sec. 919. Response to the institute of medicine. Sec. 920. Database for authorized generic drugs. Sec. 921. Adverse drug reaction reports and postmarket safety.
TITLE X--FOOD SAFETY
Sec. 1001. Findings.
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Sec. 1002. Ensuring the safety of pet food. Sec. 1003. Ensuring efficient and effective communications during a
recall. Sec. 1004. State and Federal Cooperation. Sec. 1005. Reportable Food Registry. Sec. 1006. Enhanced aquaculture and seafood inspection. Sec. 1007. Consultation regarding genetically engineered seafood
products. Sec. 1008. Sense of Congress. Sec. 1009. Annual report to Congress.
Sec. 1010. Publication of annual reports. Sec. 1011. Rule of construction.
TITLE XI--OTHER PROVISIONS
Subtitle A--In General
Sec. 1101. Policy on the review and clearance of scientific articles published by FDA employees.
Sec. 1102. Priority review to encourage treatments for tropical diseases.
Sec. 1103. Improving genetic test safety and quality. Sec. 1104. NIH Technical amendments. Sec. 1105. Severability clause.
Subtitle B--Antibiotic Access and Innovation
Sec. 1111. Identification of clinically susceptible concentrations of antimicrobials.
Sec. 1112. Orphan antibiotic drugs. Sec. 1113. Exclusivity of certain drugs containing single enantiomers. Sec. 1114. Report.
TITLE I--PRESCRIPTION <<NOTE: Prescription Drug User Fee Amendments of 2007.>> DRUG USER FEE AMENDMENTS OF 2007 SEC. 101. SHORT TITLE; REFERENCES IN TITLE; FINDING.
(a) Short <<NOTE: 21 USC 301 note.>> Title.--This title may be cited as the ``Prescription Drug User Fee Amendments of 2007''.
(b) References in Title.--Except as otherwise specified, amendments made by this title to a section or other provision of law are amendments to such section or other provision of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.).
(c) Finding.--The <<NOTE: 21 USC 379g note.>> Congress finds that the fees authorized by the amendments made in this title will be dedicated toward expediting the drug development process and the process for the review of human drug applications, including postmarket drug safety activities, as set forth in the goals identified for purposes of part 2 of subchapter C of chapter VII of the Federal Food, Drug, and Cosmetic Act, in the letters from the Secretary of Health and Human Services to the Chairman of the Committee on Health, Education, Labor, and Pensions of the Senate and the Chairman of the Committee on Energy and Commerce of the House of Representatives, as set forth in the Congressional Record. SEC. 102. DEFINITIONS.
Section 735 (21 U.S.C. 379g) is amended-- (1) in the matter before paragraph (1), by striking ``For
purposes of this subchapter'' and inserting ``For purposes of this part'';
(2) in paragraph (1)-- (A) in subparagraph (A), by striking ``505(b)(1),''
and inserting ``505(b), or'';
(B) by striking subparagraph (B); (C) by redesignating subparagraph (C) as
subparagraph (B); and
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(D) in the matter following subparagraph (B), as so redesignated, by striking ``subparagraph (C)'' and inserting ``subparagraph (B)'';
(3) in paragraph (3)(C)-- (A) by striking ``505(j)(7)(A)'' and inserting
``505(j)(7)(A) (not including the discontinued section of such list)''; and
(B) by inserting before the period ``(not including the discontinued section of such list)'';
(4) in paragraph (4), by inserting before the period at the end the following: ``(such as capsules, tablets, or lyophilized products before reconstitution)'';
(5) by amending paragraph (6)(F) to read as follows: ``(F) Postmarket safety activities with respect to
drugs approved under human drug applications or supplements, including the following activities:
``(i) Collecting, developing, and reviewing safety information on approved drugs, including adverse event reports.
``(ii) Developing and using improved adverse- event data-collection systems, including information technology systems.
``(iii) Developing and using improved analytical tools to assess potential safety problems, including access to external data
bases. ``(iv) Implementing and enforcing section
505(o) (relating to postapproval studies and clinical trials and labeling changes) and section 505(p) (relating to risk evaluation and
mitigation strategies).
``(v) Carrying out section 505(k)(5) (relating
to adverse event reports and postmarket safety activities).'';
(6) in paragraph (8)-- (A) by striking ``April of the preceding fiscal
year'' and inserting ``October of the preceding fiscal year''; and
(B) by striking ``April 1997'' and inserting ``October 1996'';
(7) by redesignating paragraph (9) as paragraph (11); and (8) by inserting after paragraph (8) the following
paragraphs: ``(9) The term `person' includes an affiliate thereof. ``(10) The term `active', with respect to a commercial
investigational new drug application, means such an application to which information was submitted during the relevant period.''.
SEC. 103. AUTHORITY TO ASSESS AND USE DRUG FEES.
(a) Types of Fees.--Section 736(a) (21 U.S.C. 379h(a)) is amended-- (1) in the matter preceding paragraph (1), by striking
``2003'' and inserting ``2008''; (2) in paragraph (1)--
(A) in subparagraph (D)-- (i) in the heading, by inserting ``or
withdrawn before filing'' after ``refused for filing''; and
(ii) by inserting before the period at the end
the following: ``or withdrawn without a waiver before filing'';
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(B) by redesignating subparagraphs (E) and (F) as subparagraphs (F) and (G), respectively; and
(C) by inserting after subparagraph (D) the following:
``(E) Fees for applications previously refused for filing or withdrawn before filing.--A human drug application or supplement that was submitted but was refused for filing, or was withdrawn before being accepted or refused for filing, shall be subject to the full fee under subparagraph (A) upon being resubmitted or filed over protest, unless the fee is waived or reduced under subsection (d).''; and
(3) in paragraph (2)-- (A) in subparagraph (A), by striking ``subparagraph
(B)'' and inserting ``subparagraphs (B) and (C)''; and (B) by adding at the end the following: ``(C) Special rules for positron emission
tomography drugs.--
``(i) In general.--Except as provided in clause (ii), each person who is named as the applicant in an approved human drug application for a positron emission tomography drug shall be subject under subparagraph (A) to one-sixth of an annual establishment fee with respect to each
such establishment identified in the application as producing positron emission tomography drugs
under the approved application.
``(ii) Exception from annual establishment fee.--Each person who is named as the applicant
in an application described in clause (i) shall not be assessed an annual establishment fee for a fiscal year if the person certifies to the Secretary, at a time specified by the Secretary and using procedures specified by the Secretary, that--
``(I) the person is a not-for- profit
medical center that has only 1 establishment for the production of positron emission tomography drugs; and
``(II) at least 95 percent of the total number of doses of each positron emission tomography drug produced by such establishment during such fiscal year will be used within the medical center.
``(iii) Definition.--For purposes of this subparagraph, the term `positron emission tomography drug' has the meaning given to the
term `compounded positron emission tomography drug' in section 201(ii), except that paragraph (1)(B) of such section shall not apply.''.
(b) Fee Revenue Amounts.--Section 736(b) (21 U.S.C. 379h(b)) is amended to read as follows:
``(b) Fee Revenue Amounts.-- ``(1) In general.--For each of the fiscal years 2008
through 2012, fees under subsection (a) shall, except as provided in subsections (c), (d), (f), and (g), be established to generate
a total revenue amount under such subsection that is equal to the sum of--
``(A) $392,783,000; and
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``(B) an amount equal to the modified workload adjustment factor for fiscal year 2007 (as determined under paragraph (3)).
``(2) Types of fees.--Of the total revenue amount determined
for a fiscal year under paragraph (1)-- ``(A) one-third shall be derived from fees under
subsection (a)(1) (relating to human drug applications and supplements);
``(B) one-third shall be derived from fees under subsection (a)(2) (relating to prescription drug establishments); and
``(C) one-third shall be derived from fees under subsection (a)(3) (relating to prescription drug products).
``(3) Modified workload adjustment factor for fiscal year 2007.--For purposes of paragraph (1)(B), the Secretary shall determine the modified workload adjustment factor by
determining the dollar amount that results from applying the methodology that was in effect under subsection (c)(2) for fiscal year 2007 to the amount $354,893,000, except that, with respect to the portion of such determination that is based on the change in
the total number of commercial investigational new drug applications, the Secretary shall count the number of such
applications that were active during the most recent 12-month period for which data on such submissions is available.
``(4) Additional fee revenues for drug safety.-- ``(A) In general.--For <<NOTE: Applicability.>>
each of the fiscal years 2008 through 2012, paragraph (1)(A) shall be applied by substituting the amount determined under subparagraph (B) for `$392,783,000'.
``(B) Amount determined.--For each of the fiscal years 2008 through 2012, the amount determined under this subparagraph is the sum of--
``(i) $392,783,000; plus ``(ii)(I) for fiscal year 2008, $25,000,000; ``(II) for fiscal year 2009, $35,000,000; ``(III) for fiscal year 2010, $45,000,000; ``(IV) for fiscal year 2011, $55,000,000; and ``(V) for fiscal year 2012, $65,000,000.''.
(c) Adjustments to Fees.-- (1) Inflation adjustment.--Section 736(c)(1) (21 U.S.C.
379h(c)(1)) is amended-- (A) in the matter preceding subparagraph (A), by
striking ``The revenues established in subsection (b)'' and inserting ``For fiscal year 2009 and subsequent fiscal years, the revenues established in subsection (b)'';
(B) in subparagraph (A), by striking ``or'' at the end;
(C) in subparagraph (B), by striking the period at the end and inserting ``, or'';
(D) by inserting after subparagraph (B) the following:
``(C) the average annual change in the cost, per full-time equivalent position of the Food and Drug Administration, of all personnel compensation and benefits paid with respect to such positions for the first 5 years of the preceding 6 fiscal years.''; and
(E) in the matter following subparagraph (C) (as added by subparagraph (D)), by striking ``fiscal year 2003'' and inserting ``fiscal year 2008''.
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(2) Workload adjustment.--Section 736(c)(2) (21 U.S.C. 379h(c)(2)) is amended--
(A) in the matter preceding subparagraph (A), by striking ``Beginning with fiscal year 2004,'' and inserting ``For fiscal year 2009 and subsequent fiscal years,'';
(B) in subparagraph (A), in the first sentence-- (i) by striking ``human drug applications,''
and inserting ``human drug applications (adjusted for changes in review activities, as described in the notice that the Secretary is required to publish in the Federal Register under this subparagraph),'';
(ii) by striking ``commercial investigational
new drug applications,''; and (iii) by inserting before the period the
following: ``, and the change in the total number of active commercial investigational new drug applications (adjusted for changes in review activities, as so described) during the most recent 12-month period for which data on such submissions is available'';
(C) in subparagraph (B), by adding at the end the following: ``Any adjustment for changes in review activities made in setting fees and revenue amounts for fiscal year 2009 may not result in the total workload adjustment being more than 2 percentage points higher than it would have been in the absence of the
adjustment for changes in review activities.''; and
(D) by adding at the end the following: ``(C) The <<NOTE: Contracts. Study.>> Secretary
shall contract with an independent accounting firm to study the adjustment for changes in review activities applied in setting fees and revenue amounts for fiscal year 2009 and to make recommendations, if warranted,
for future changes in the methodology for calculating the adjustment. <<NOTE: Effective date.>> After review of the recommendations, the Secretary shall, if warranted, make appropriate changes to the methodology, and the changes shall be effective for each of the fiscal years 2010 through 2012. The Secretary shall not make any adjustment for changes in review activities for any fiscal year after 2009 unless such study has been completed.''.
(3) Rent and rent-related cost adjustment.--Section 736(c) (21 U.S.C. 379h(c)) is amended--
(A) by redesignating paragraphs (3), (4), and (5) as
paragraphs (4), (5), and (6), respectively; and (B) by inserting after paragraph (2) the following:
``(3) Rent and rent-related cost adjustment.--For fiscal year 2010 and each subsequent fiscal year, the Secretary shall, before making adjustments under paragraphs (1) and (2),
decrease the fee revenue amount established in subsection (b) if actual costs paid for rent and rent-related expenses for the preceding fiscal year are less than estimates made for such year in
fiscal year 2006. Any reduction made under this paragraph shall not exceed the amount by which such costs fall below the estimates made in fiscal year 2006 for such fiscal year, and shall not exceed $11,721,000 for any fiscal year.''.
(4) Final year adjustment.--Paragraph (4) of section 736(c) (21 U.S.C. 379h(c)), as redesignated by paragraph (3)(A), is amended to read as follows:
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``(4) Final year adjustment.--
``(A) Increase in fees.--For fiscal year 2012, the Secretary may, in addition to adjustments under this paragraph and paragraphs (1), (2), and (3), further increase the fee revenues and fees established in subsection (b) if such an adjustment is necessary to provide for not more than 3 months of operating
reserves of carryover user fees for the process for the review
of human drug applications for the first 3 months of
fiscal year 2013. If such an adjustment is necessary, the rationale for the amount of the increase shall be contained in the annual notice establishing fee
revenues and fees for fiscal year 2012. If the Secretary has carryover balances for such process in excess of 3 months of such operating reserves, the adjustment under this subparagraph shall not be made.
``(B) Decrease in fees.-- ``(i) In general.--For fiscal year 2012, the
Secretary may, in addition to adjustments under this paragraph and paragraphs (1), (2), and (3), decrease the fee revenues and fees established in subsection (b) by the amount determined in clause (ii), if, for fiscal year 2009 or 2010--
``(I) the amount of the total appropriations for the Food and Drug Administration for such fiscal year (excluding the amount of fees appropriated for such fiscal year) exceeds the amount of the total appropriations for the Food and Drug Administration for fiscal year 2008 (excluding the amount of fees appropriated for such fiscal year), adjusted as provided under paragraph (1); and
``(II) the amount of the total appropriations expended for the process for the review of human drug applications at the Food and Drug Administration for such fiscal year (excluding the amount of fees appropriated for such fiscal year) exceeds the amount of appropriations expended for the process for the review of human drug applications at the Food and Drug Administration for fiscal year 2008 (excluding the amount of fees appropriated for such fiscal year), adjusted as provided under paragraph (1).
``(ii) Amount of decrease.--The amount determined in this clause is the lesser of--
``(I) the amount equal to the sum of
the amounts that, for each of fiscal years 2009 and 2010, is the lesser of--
``(aa) the excess amount described in clause (i)(II) for such fiscal year; or
``(bb) the amount specified in subsection (b)(4)(B)(ii) for such fiscal year; or
``(II) $65,000,000. ``(iii) Limitations.--
``(I) Fiscal year condition.--In making the determination under clause (ii), an amount described in subclause (I) of such clause for fiscal year 2009 or 2010 shall be taken into account
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only if subclauses (I) and (II) of clause (i) apply to such fiscal year.
``(II) Relation to subparagraph (A).--The Secretary shall limit any decrease under this paragraph if such a limitation is necessary to provide for the 3 months of operating reserves described in subparagraph (A).''.
(5) Limit.--Paragraph (5) of section 736(c) (21 U.S.C. 379h(c)), as redesignated by paragraph (3)(A), is amended by striking ``2002'' and inserting ``2007''.
(d) Fee Waiver or Reduction.--Section 736(d) (21 U.S.C. 379h(d)) is amended--
(1) in paragraph (1), in the matter preceding subparagraph (A)--
(A) by inserting after ``The Secretary shall grant''
the following: ``to a person who is named as the applicant in a human drug application''; and
(B) by inserting ``to that person'' after ``one or more fees assessed'';
(2) by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respectively;
(3) by inserting after paragraph (1) the following: ``(2) Considerations.--In determining whether to grant a
waiver or reduction of a fee under paragraph (1), the Secretary shall consider only the circumstances and assets of the applicant involved and any affiliate of the applicant.''; and
(4) in paragraph (4) (as redesignated by paragraph (2)), in subparagraph (A), by inserting before the period the following: ``, and that does not have a drug product that has been
approved under a human drug application and introduced or delivered for introduction into interstate commerce''.
(e) Crediting and Availability of Fees.-- (1) Authorization of appropriations.--Section 736(g)(3) (21
U.S.C. 379h(g)(3)) is amended to read as follows:
``(3) Authorization of appropriations.--For each of the fiscal years 2008 through 2012, there is authorized to be appropriated for fees under this section an amount equal to the total revenue amount determined under subsection (b) for the fiscal year, as adjusted or otherwise affected under subsection (c) and paragraph (4) of this subsection.''.
(2) Offset.--Section 736(g)(4) (21 U.S.C. 379h(g)(4)) is amended to read as follows:
``(4) Offset.--If the sum of the cumulative amount of fees collected under this section for the fiscal years 2008 through 2010 and the amount of fees estimated to be collected under
this section for fiscal year 2011 exceeds the cumulative amount appropriated under paragraph (3) for the fiscal years 2008 through 2011, the excess shall be credited to the appropriation account of the Food and Drug Administration as provided in paragraph (1), and shall be subtracted from the amount of fees that would otherwise be authorized to be collected under this section pursuant to appropriation Acts for fiscal year 2012.''.
(f) Exemption for Orphan Drugs.--Section 736 (21 U.S.C. 379h) is further amended by adding at the end the following:
``(k) Orphan Drugs.--
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``(1) Exemption.--A drug designated under section 526 for a rare disease or condition and approved under section 505 or under section 351 of the Public Health Service Act shall be exempt from product and establishment fees under this section, if the drug meets all of the following conditions:
``(A) The drug meets the public health requirements contained in this Act as such requirements are applied to requests for waivers for product and establishment fees.
``(B) The drug is owned or licensed and is marketed by a company that had less than $50,000,000 in gross worldwide revenue during the previous year.
``(2) Evidence of qualification.--An exemption under paragraph (1) applies with respect to a drug only if the applicant involved submits a certification that its gross
annual revenues did not exceed $50,000,000 for the preceding 12 months before the exemption was requested.''.
(g) Conforming Amendment.--Section 736(a) (21 U.S.C. 379h(a)) is amended in paragraphs (1)(A)(i), (1)(A)(ii), (2)(A), and (3)(A) by striking ``(c)(4)'' each place such term appears and inserting ``(c)(5)''.
(h) Technical Amendment.-- (1) Amendment.--Section 736(g)(1) (21 U.S.C. 379h(g)(1)) is
amended by striking the first sentence and inserting the following: ``Fees authorized under subsection (a) shall be collected and available for obligation only to the extent and
in the amount provided in advance in appropriations Acts. Such
fees
are authorized to remain available until expended.''. (2) Effective <<NOTE: 21 USC 379h note.>> date.--Paragraph
(1) shall take effect as if included in section 504 of the Prescription Drug User Fee Amendments of 2002 (Public Law 107- 188; 116 Stat. 687).
SEC. 104. FEES RELATING TO ADVISORY REVIEW OF PRESCRIPTION-DRUG TELEVISION ADVERTISING.
Part 2 of subchapter C of chapter VII (21 U.S.C. 379g et seq.) is amended by adding after section 736 the following: ``SEC. 736A. <<NOTE: 21 USC 379h-1.>> FEES RELATING TO ADVISORY
REVIEW OF PRESCRIPTION-DRUG TELEVISION ADVERTISING.
``(a) Types of Direct-to-Consumer Television Advertisement Review Fees.--Beginning <<NOTE: Effective date.>> in fiscal year 2008, the Secretary shall assess and collect fees in accordance with this section as follows:
``(1) Advisory review fee.-- ``(A) In general.--With respect to a proposed
direct-to-consumer television advertisement (referred to
in this section as a `DTC advertisement'), each person that on or after October 1, 2007, submits such an advertisement for advisory review by the Secretary
prior to its initial public dissemination shall, except as provided in subparagraph (B), be subject to a fee established under subsection (c)(3).
``(B) Exception for required submissions.--A DTC advertisement that is required to be submitted to the Secretary prior to initial public dissemination is not subject to a fee under subparagraph (A) unless the sponsor designates the submission as a submission for advisory review.
``(C) Notice to secretary of number of advertisements.--Not later than <<NOTE: Deadlines. Federal Register, publication.>> June 1 of each fiscal
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year, the Secretary shall publish a notice in the Federal Register requesting any person to notify the Secretary within 30 days of the number of DTC advertisements the person intends to submit for
advisory review in the next fiscal year. Notwithstanding the preceding sentence, for fiscal year 2008, the Secretary shall publish such a notice in the Federal Register not later than 30 days after the date of the enactment of the Food and Drug Administration Amendments Act of
2007. ``(D) <<NOTE: Deadlines.>> Payment.--
``(i) In general.--The fee required by subparagraph (A) (referred to in this section as `an advisory review fee') shall be due not later
than October 1 of the fiscal year in which the DTC
advertisement involved is intended to be submitted
for advisory review, subject to subparagraph (F)(i). Notwithstanding the preceding sentence, the advisory review fee for any DTC advertisement that is intended to be submitted for advisory review during fiscal year 2008 shall be due not later than 120 days after the date of the enactment of the Food and Drug Administration Amendments of 2007 or an earlier date as
specified by the Secretary.
``(ii) Effect of submission.--Notification of the Secretary under subparagraph (C) of the
number of DTC advertisements a person intends to submit for advisory review is a legally binding commitment by that person to pay the annual advisory review fee for that number of
submissions on or before October 1 of the fiscal year in
which the advertisement is intended to be submitted. Notwithstanding the preceding sentence, the commitment shall be a legally binding commitment by that person to pay the annual advisory review fee for that number of submissions for fiscal
year 2008 by the date specified in clause (i).
``(iii) Notice regarding carryover submissions.--In making a notification under subparagraph (C), the person involved shall in addition notify the Secretary if under subparagraph (F)(i) the person intends to submit
a DTC advertisement for which the advisory review fee has already been paid. If the person does not so notify the Secretary, each DTC advertisement submitted by the person for advisory review in
the fiscal year involved shall be subject to the advisory review fee.
``(E) Modification of advisory review fee.-- ``(i) Late <<NOTE: Applicability.>> payment.-
- If a person has submitted a notification under subparagraph (C) with respect to a fiscal year
and has not paid all advisory review fees due under subparagraph (D) not later than November 1 of
such fiscal year (or, in the case of such a notification submitted with respect to fiscal
year 2008, not later than 150 days after the date of
the enactment of the Food and Drug Administration Amendments Act of 2007 or an earlier date specified by the Secretary), the fees shall be regarded as late
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and an increase in the amount of fees applies in accordance with this clause, notwithstanding any other provision of this section. <<NOTE: Deadline.>> For such person, all advisory review fees for such fiscal year shall
be due and payable 20 days before any direct-to- consumer advertisement is submitted to the Secretary for advisory review, and each such fee shall be equal to 150 percent of the fee that otherwise would have applied pursuant to subsection (c)(3).
``(ii) Exceeding identified number of submissions.--If a person submits a number of DTC advertisements for advisory review in a fiscal year that exceeds the number identified by the person under subparagraph (C), an increase in the amount of fees applies under this clause for each submission in excess of such number, notwithstanding any other provision of this section. For <<NOTE: Deadline.>> each such DTC advertisement, the advisory review fee shall be due and payable 20 days before the advertisement is submitted to the Secretary, and the fee shall be equal to 150 percent of the fee that otherwise would have applied pursuant to subsection (c)(3).
``(F) Limits.-- ``(i) Submissions.--For each advisory review
fee paid by a person for a fiscal year, the person
is entitled to acceptance for advisory review by the Secretary of one DTC advertisement and acceptance of one resubmission for advisory
review of the same advertisement. The advertisement
shall be submitted for review in the fiscal year for which the fee was assessed, except that a person may carry over not more than one paid advisory review submission to the next fiscal year. Resubmissions may be submitted without regard to the fiscal year of the initial advisory review submission.
``(ii) No refunds.--Except as provided by subsections (d)(4) and (f), fees paid under this section shall not be refunded.
``(iii) No waivers, exemptions, or reductions.--The Secretary shall not grant a waiver, exemption, or reduction of any fees due
or
payable under this section. ``(iv) Right to advisory review not
transferable.--The right to an advisory review under this paragraph is not transferable, except to a successor in interest.
``(2) Operating reserve fee.-- ``(A) In general.--Each person that on or after
October 1, 2007, is assessed an advisory review fee under paragraph (1) shall be subject to fee established under subsection (d)(2) (referred to in this section as an `operating reserve fee') for the first fiscal year
in which an advisory review fee is assessed to such
person. The person is not subject to an operating reserve fee for any other fiscal year.
``(B) Payment.--Except <<NOTE: Deadlines.>> as provided in subparagraph (C), the operating reserve fee shall be due no later than--
[[Page 121 STAT. 835]]
``(i) October 1 of the first fiscal year in which the person is required to pay an advisory review fee under paragraph (1); or
``(ii) for fiscal year 2008, 120 days after the date of the enactment of the Food and Drug Administration Amendments Act of 2007 or an earlier date specified by the Secretary.
``(C) Late notice of submission.--If, in the first fiscal year of a person's participation in the program under this section, that person submits any DTC advertisements for advisory review that are in excess
of the number identified by that person in response to the Federal Register notice described in subsection (a)(1)(C), that person shall pay an operating reserve fee for each of those advisory reviews equal to the advisory review fee for each submission established under paragraph (1)(E)(ii). Fees required by this subparagraph shall be in addition to any fees required by subparagraph (A). <<NOTE: Deadline.>> Fees under
this subparagraph shall be due 20 days before any DTC advertisement is submitted by such person to the Secretary for advisory review.
``(D) Late <<NOTE: Deadlines.>> payment.-- ``(i) In general.--Notwithstanding
subparagraph (B), and subject to clause (ii), an operating reserve fee shall be regarded as late
if the person required to pay the fee has not paid the complete operating reserve fee by--
``(I) for fiscal year 2008, 150 days
after the date of the enactment of the Food and Drug Administration Amendments
Act of 2007 or an earlier date specified
by the Secretary; or ``(II) in any subsequent year,
November 1. ``(ii) Complete payment.--The complete
operating reserve fee shall be due and payable 20 days before any DTC advertisement is submitted by such person to the Secretary for advisory review.
``(iii) Amount.--Notwithstanding any other provision of this section, an operating reserve fee that is regarded as late under this subparagraph shall be equal to 150 percent of the operating reserve fee that otherwise would have applied pursuant to subsection (d).
``(b) Advisory Review Fee Revenue Amounts.--Fees under subsection (a)(1) shall be established to generate revenue amounts of $6,250,000 for each of fiscal years 2008 through 2012, as adjusted pursuant to subsections (c) and (g)(4).
``(c) Adjustments.-- ``(1) Inflation <<NOTE: Effective date. Notice. Federal
Register, publication.>> adjustment.--Beginning with fiscal year
2009, the revenues established in subsection (b) shall be adjusted by the Secretary by notice, published in the Federal Register, for a fiscal year to reflect the greater of--
``(A) the total percentage change that occurred in the Consumer Price Index for all urban consumers (all items; U.S. city average), for the 12-month period ending June 30 preceding the fiscal year for which fees are being established;
``(B) the total percentage change for the previous fiscal year in basic pay under the General Schedule in accordance
[[Page 121 STAT. 836]]
with section 5332 of title 5, United States Code, as adjusted by any locality-based comparability payment pursuant to section 5304 of such title for Federal employees stationed in the District of Columbia; or
``(C) the average annual change in the cost, per full-time equivalent position of the Food and Drug Administration, of all personnel compensation and benefits paid with respect to such positions for the first 5 fiscal years of the previous 6 fiscal years.
The adjustment made each fiscal year by this subsection shall be
added on a compounded basis to the sum of all adjustments made each fiscal year after fiscal year 2008 under this subsection.
``(2) Workload <<NOTE: Effective date.>> adjustment.-- Beginning with fiscal year 2009, after the fee revenues established in subsection (b) are adjusted for a fiscal year
for inflation in accordance with paragraph (1), the fee revenues shall be adjusted further for such fiscal year to reflect
changes in the workload of the Secretary with respect to the submission of DTC advertisements for advisory review prior to initial dissemination. With respect to such adjustment:
``(A) The adjustment shall be determined by the Secretary based upon the number of DTC advertisements identified pursuant to subsection (a)(1)(C) for the upcoming fiscal year, excluding allowable previously paid carry over submissions. The adjustment shall be determined by multiplying the number of such advertisements projected for that fiscal year that exceeds 150 by $27,600 (adjusted each year beginning with fiscal year 2009 for inflation in accordance with paragraph (1)). <<NOTE: Federal Register, publication.>> The Secretary shall publish in the Federal Register the fee revenues and fees
resulting from the adjustment and the supporting methodologies.
``(B) Under no circumstances shall the adjustment result in fee revenues for a fiscal year that are less than the fee revenues established for the prior fiscal year.
``(3) Annual fee setting for advisory review.-- ``(A) In <<NOTE: Deadlines.>> general.--Not later
than August 1 of each fiscal year (or, with respect to fiscal year 2008, not later than 90 days after the date of the enactment of the Food and Drug Administration Amendments Act of 2007), the Secretary shall establish for the next fiscal year the DTC advertisement advisory review fee under subsection (a)(1), based on the
revenue amounts established under subsection (b), the adjustments provided under paragraphs (1) and (2), and the number of DTC advertisements identified pursuant to subsection (a)(1)(C), excluding allowable previously- paid carry over submissions. The annual advisory review fee shall be established by dividing the fee revenue
for a fiscal year (as adjusted pursuant to this subsection) by the number of DTC advertisements so identified, excluding allowable previously-paid carry over submissions under subsection (a)(1)(F)(i).
``(B) Fiscal year 2008 fee limit.--Notwithstanding subsection (b) and the adjustments pursuant to this subsection, the fee established under subparagraph (A) for
[[Page 121 STAT. 837]]
fiscal year 2008 may not be more than $83,000 per submission for advisory review.
``(C) Annual fee limit.--Notwithstanding subsection (b) and the adjustments pursuant to this subsection,
the fee established under subparagraph (A) for a fiscal
year after fiscal year 2008 may not be more than 50 percent
more than the fee established for the prior fiscal year.
``(D) Limit.--The total amount of fees obligated for
a fiscal year may not exceed the total costs for such fiscal year for the resources allocated for the process for the advisory review of prescription drug advertising.
``(d) Operating Reserves.-- ``(1) In general.--The Secretary shall establish in the
Food and Drug Administration salaries and expenses appropriation account without fiscal year limitation a Direct-to-Consumer Advisory Review Operating Reserve, of at least $6,250,000 in fiscal year 2008, to continue the program under this section in the event the fees collected in any subsequent fiscal year pursuant to subsection (a)(1) do not generate the fee revenue amount established for that fiscal year.
``(2) Fee setting.--The Secretary shall establish the operating reserve fee under subsection (a)(2)(A) for each
person required to pay the fee by multiplying the number of DTC advertisements identified by that person pursuant to subsection (a)(1)(C) by the advisory review fee established pursuant to subsection (c)(3) for that fiscal year, except that in no case shall the operating reserve fee assessed be less than the operating reserve fee assessed if the person had first participated in the program under this section in fiscal year 2008.
``(3) Use of operating reserve.--The Secretary may use funds
from the reserves only to the extent necessary in any fiscal year to make up the difference between the fee revenue amount established for that fiscal year under subsections (b) and (c) and the amount of fees actually collected for that fiscal year pursuant to subsection (a)(1), or to pay costs of ending the program under this section if it is terminated pursuant to subsection (f) or not reauthorized beyond fiscal year 2012.
``(4) Refund <<NOTE: Deadline.>> of operating reserves.-- Within 120 days after the end of fiscal year 2012, or if the program under this section ends early pursuant to subsection (f), the Secretary, after setting aside sufficient operating reserve amounts to terminate the program under this section, shall refund all amounts remaining in the operating reserve on
a pro rata basis to each person that paid an operating reserve
fee assessment. In no event shall the refund to any person exceed the total amount of operating reserve fees paid by such person pursuant to subsection (a)(2).
``(e) Effect of Failure To Pay Fees.--Notwithstanding any other requirement, a submission for advisory review of a DTC advertisement submitted by a person subject to fees under subsection (a) shall be considered incomplete and shall not be accepted for review by the Secretary until all fees owed by such person under this section have
been paid. ``(f) Effect of Inadequate Funding of Program.--
``(1) Initial <<NOTE: Effective date.>> funding.--If on November 1, 2007, or 120 days after the date of the enactment
of the Food and Drug Administration Amendments Act of 2007, whichever is later,
[[Page 121 STAT. 838]]
the Secretary has not received at least $11,250,000 in advisory review fees and operating reserve fees combined, the program under this section shall not commence and all collected fees shall be refunded.
``(2) Later <<NOTE: Effective date. Notification.>> fiscal years.--Beginning in fiscal year 2009, if, on November 1 of the fiscal year, the combination of the operating reserves, annual fee revenues from that fiscal year, and unobligated fee
revenues from prior fiscal years falls below $9,000,000, adjusted for inflation (as described in subsection (c)(1)), the program
under this section shall terminate, and the Secretary shall notify
all participants, retain any money from the unused advisory review fees and the operating reserves needed to terminate the
program, and refund the remainder of the unused fees and operating reserves. To the extent required to terminate the program, the Secretary shall first use unobligated advisory review fee revenues from prior fiscal years, then the operating reserves, and finally, unused advisory review fees from the relevant fiscal year.
``(g) Crediting and Availability of Fees.-- ``(1) In general.--Fees authorized under subsection (a)
shall be collected and available for obligation only to the extent and in the amount provided in advance in appropriations Acts. Such fees are authorized to remain available until expended. Such sums as may be necessary may be transferred from the Food and Drug Administration salaries and expenses appropriation account without fiscal year limitation to such appropriation account for salaries and expenses with such
fiscal year limitation. The sums transferred shall be available solely for the process for the advisory review of prescription drug advertising.
``(2) Collections and appropriation acts.-- ``(A) In general.--The fees authorized by this
section-- ``(i) shall be retained in each fiscal year
in an amount not to exceed the amount specified in appropriation Acts, or otherwise made available for obligation for such fiscal year; and
``(ii) shall be available for obligation only if the amounts appropriated as budget authority
for such fiscal year are sufficient to support a number of full-time equivalent review employees that is not fewer than the number of such employees supported in fiscal year 2007.
``(B) Review employees.--For purposes of subparagraph (A)(ii), the term `full-time equivalent review employees' means the total combined number of full-time equivalent employees in--
``(i) the Center for Drug Evaluation and Research, Division of Drug Marketing,
Advertising, and Communications, Food and Drug Administration; and
``(ii) the Center for Biologics Evaluation and
Research, Advertising and Promotional Labeling Branch, Food and Drug Administration.
``(3) Authorization of appropriations.--For each of the fiscal years 2008 through 2012, there is authorized to be appropriated for fees under this section an amount equal to the total revenue amount determined under subsection (b) for the
[[Page 121 STAT. 839]]
fiscal year, as adjusted pursuant to subsection (c) and paragraph (4) of this subsection, plus amounts collected for
the reserve fund under subsection (d).
``(4) Offset.--Any amount of fees collected for a fiscal year under this section that exceeds the amount of fees specified in appropriation Acts for such fiscal year shall be credited to the appropriation account of the Food and Drug Administration as provided in paragraph (1), and shall be subtracted from the amount of fees that would otherwise be collected under this section pursuant to appropriation Acts for a subsequent fiscal year.
``(h) Definitions.--For purposes of this section: ``(1) The term `advisory review' means reviewing and
providing advisory comments on DTC advertisements regarding compliance of a proposed advertisement with the requirements of this Act prior to its initial public dissemination.
``(2) The term `advisory review fee' has the meaning indicated for such term in subsection (a)(1)(D).
``(3) The term `carry over submission' means a submission for an advisory review for which a fee was paid in one fiscal year that is submitted for review in the following fiscal year.
``(4) The term `direct-to-consumer television advertisement'
means an advertisement for a prescription drug product (as defined in section 735(3)) intended to be displayed on any television channel for less than 3 minutes.
``(5) The term `DTC advertisement' has the meaning indicated
for such term in subsection (a)(1)(A). ``(6) The term `operating reserve fee' has the meaning
indicated for such term in subsection (a)(2)(A).
``(7) The term `person' includes an individual, partnership,
corporation, and association, and any affiliate thereof or successor in interest.
``(8) The term `process for the advisory review of prescription drug advertising' means the activities necessary
to review and provide advisory comments on DTC advertisements
prior to public dissemination and, to the extent the Secretary has additional staff resources available under the program under this section that are not necessary for the advisory review of DTC advertisements, the activities necessary to review and provide advisory comments on other proposed advertisements and promotional material prior to public dissemination.
``(9) The term `resources allocated for the process for the advisory review of prescription drug advertising' means the expenses incurred in connection with the process for the advisory review of prescription drug advertising for--
``(A) officers and employees of the Food and Drug Administration, contractors of the Food and Drug Administration, advisory committees, and costs related to such officers, employees, and committees, and to contracts with such contractors;
``(B) management of information, and the acquisition, maintenance, and repair of computer resources;
``(C) leasing, maintenance, renovation, and repair of facilities and acquisition, maintenance, and repair of fixtures, furniture, scientific equipment, and other necessary materials and supplies;
[[Page 121 STAT. 840]]
``(D) collection of fees under this section and accounting for resources allocated for the advisory review of prescription drug advertising; and
``(E) terminating the program under this section pursuant to subsection (f)(2) if that becomes
necessary. ``(10) The term `resubmission' means a subsequent
submission for advisory review of a direct-to-consumer television advertisement that has been revised in response to the Secretary's comments on an original submission. A resubmission may not introduce significant new concepts or creative themes into the television advertisement.
``(11) The term `submission for advisory review' means an original submission of a direct-to-consumer television advertisement for which the sponsor voluntarily requests advisory comments before the advertisement is publicly disseminated.''.
SEC. 105. REAUTHORIZATION; REPORTING REQUIREMENTS.
Part 2 of subchapter C of chapter VII (21 U.S.C. 379g et seq.), as amended by section 104, is further amended by inserting after section 736A the following:
``SEC. 736B. <<NOTE: 21 USC 379h-2.>> REAUTHORIZATION; REPORTING REQUIREMENTS.
``(a) Performance Report.--Beginning with fiscal year 2008, not later than 120 days after the end of each fiscal year for which fees are collected under this part, the Secretary shall prepare and submit to the Committee on Energy and Commerce of the House of Representatives and the Committee on Health, Education, Labor, and Pensions of the Senate a report concerning the progress of the Food and Drug Administration in achieving the goals identified in the letters described in section 101(c) of the Food and Drug Administration Amendments Act of 2007 during such fiscal year and the future plans of the Food and Drug Administration for meeting the goals. The report for a fiscal year shall include information on all previous cohorts for which the Secretary has not given a complete response on all human drug applications and supplements in the cohort.
``(b) Fiscal Report.--Beginning with fiscal year 2008, not later than 120 days after the end of each fiscal year for which fees are collected under this part, the Secretary shall prepare and submit to the Committee on Energy and Commerce of the House of Representatives and the Committee on Health, Education, Labor, and Pensions of the Senate a report on the implementation of the authority for such fees during such fiscal year and the use, by the Food and Drug Administration, of the fees collected for such fiscal year.
``(c) Public <<NOTE: Website.>> Availability.--The Secretary shall make the reports required under subsections (a) and (b) available to the public on the Internet Web site of the Food and Drug Administration.
``(d) Reauthorization.-- ``(1) Consultation.--In developing recommendations to
present to the Congress with respect to the goals, and plans for
meeting the goals, for the process for the review of human drug applications for the first 5 fiscal years after fiscal year 2012, and for the reauthorization of this part for such fiscal years, the Secretary shall consult with--
``(A) the Committee on Energy and Commerce of the House of Representatives;
[[Page 121 STAT. 841]]
``(B) the Committee on Health, Education, Labor, and
Pensions of the Senate; ``(C) scientific and academic experts; ``(D) health care professionals; ``(E) representatives of patient and consumer
advocacy groups; and ``(F) the regulated industry.
``(2) Prior public input.--Prior to beginning negotiations with the regulated industry on the reauthorization of this
part, the Secretary shall--
``(A) <<NOTE: Federal Register, publication.>> publish a notice in the
Federal Register requesting public input on the
reauthorization; ``(B) hold a public meeting at which the public may
present its views on the reauthorization, including specific suggestions for changes to the goals referred to in subsection (a);
``(C) provide a period of 30 days after the public meeting to obtain written comments from the public suggesting changes to this part; and
``(D) <<NOTE: Website.>> publish the comments on the
Food and Drug Administration's Internet Web site. ``(3) Periodic consultation.--Not less frequently than once
every month during negotiations with the regulated industry, the
Secretary shall hold discussions with representatives of patient
and consumer advocacy groups to continue discussions of their views on the reauthorization and their suggestions for changes to this part as expressed under paragraph (2).
``(4) Public review of recommendations.--After negotiations with the regulated industry, the Secretary shall--
``(A) present the recommendations developed under paragraph (1) to the Congressional committees specified in such paragraph;
``(B) <<NOTE: Federal Register, publication.>> publish such recommendations
in the Federal Register;
``(C) provide for a period of 30 days for the public
to provide written comments on such recommendations; ``(D) hold a meeting at which the public may
present its views on such recommendations; and
``(E) after consideration of such public views and comments, revise such recommendations as necessary.
``(5) Transmittal of <<NOTE: Deadline.>> recommendations.-- Not later than January 15, 2012, the Secretary shall transmit
to the Congress the revised recommendations under paragraph (4), a summary of the views and comments received under such
paragraph, and any changes made to the recommendations in response to such views and comments.
``(6) Minutes of negotiation meetings.-- ``(A) Public <<NOTE: Website.>> availability.--
Before presenting the recommendations developed under paragraphs (1) through (5) to the Congress, the Secretary shall make publicly available, on the public
Web site of the Food and Drug Administration, minutes of
all negotiation meetings conducted under this subsection
between the Food and Drug Administration and the regulated industry.
``(B) Content.--The minutes described under subparagraph (A) shall summarize any substantive proposal made
[[Page 121 STAT. 842]]
by any party to the negotiations as well as significant controversies or differences of opinion during the negotiations and their resolution.''.
SEC. 106. SUNSET DATES.
(a) Authorization.--The <<NOTE: 21 USC 379g note.>> amendments made by sections 102, 103, and 104 cease to be effective October 1, 2012.
(b) Reporting <<NOTE: 21 USC 379h-2.>> Requirements.--The amendment made by section 105 ceases to be effective January 31, 2013. SEC. 107. <<NOTE: 21 USC 379g note.>> EFFECTIVE DATE.
The amendments made by this title shall take effect on October 1, 2007, or the date of the enactment of this Act, whichever is later, except that fees under part 2 of subchapter C of chapter VII of the Federal Food, Drug, and Cosmetic Act shall be assessed for all human drug applications received on or after October 1, 2007, regardless of the date of the enactment of this Act. SEC. 108. <<NOTE: 21 USC 379g note.>> SAVINGS CLAUSE.
Notwithstanding section 509 of the Prescription Drug User Fee Amendments of 2002 (21 U.S.C. 379g note), and notwithstanding the amendments made by this title, part 2 of subchapter C of chapter VII of the Federal Food, Drug, and Cosmetic Act, as in effect on the day before the date of the enactment of this title, shall continue to be in effect with respect to human drug applications and supplements (as defined in such part as of such day) that on or after October 1, 2002, but before October 1, 2007, were accepted by the Food and Drug Administration for filing with respect to assessing and collecting any fee required by such part for a fiscal year prior to fiscal year 2008. SEC. 109. TECHNICAL AMENDMENT; CONFORMING AMENDMENT.
(a) Section 739 (21 U.S.C. 379j-11) is amended in the matter preceding paragraph (1) by striking ``subchapter'' and inserting ``part''.
(b) Paragraph (11) of section 739 (21 U.S.C. 379j-11) is amended by striking ``735(9)'' and inserting ``735(11)''.
TITLE II--MEDICAL <<NOTE: Medical Device User Fee Amendments of 2007.>> DEVICE USER FEE AMENDMENTS OF 2007 SEC. 201. SHORT TITLE; REFERENCES IN TITLE; FINDING.
(a) Short <<NOTE: 21 USC 301 note.>> Title.--This title may be cited as the ``Medical Device User Fee Amendments of 2007''.
(b) References in Title.--Except as otherwise specified, amendments made by this title to a section or other provision of law are amendments to such section or other provision of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.).
(c) Finding.--The <<NOTE: 21 USC 379i note.>> Congress finds that the fees authorized under the amendments made by this title will be dedicated toward expediting the process for the review of device applications and for assuring the safety and effectiveness of devices, as set forth in the goals identified for purposes of part 3 of subchapter C of chapter VII of the Federal Food, Drug, and Cosmetic Act in the letters from the Secretary of Health and Human Services to the Chairman of the Committee on Health, Education, Labor, and Pensions of the Senate and the Chairman of the Committee on Energy
[[Page 121 STAT. 843]]
and Commerce of the House of Representatives, as set forth in the Congressional Record.
Subtitle A--Fees Related to Medical Devices
SEC. 211. DEFINITIONS.
Section <<NOTE: 21 USC 379i.>> 737 is amended-- (1) in the matter preceding paragraph (1), by striking
``For purposes of this subchapter'' and inserting ``For purposes of this part'';
(2) by redesignating paragraphs (5), (6), (7), and (8) as paragraphs (8), (9), (10), and (12), respectively;
(3) by inserting after paragraph (4) the following: ``(5) The term `30-day notice' means a notice under section
515(d)(6) that is limited to a request to make modifications to manufacturing procedures or methods of manufacture affecting
the safety and effectiveness of the device.
``(6) The term `request for classification information' means a request made under section 513(g) for information respecting the class in which a device has been classified or the requirements applicable to a device.
``(7) The term `annual fee', for periodic reporting concerning a class III device, means the annual fee associated with periodic reports required by a premarket application approval order.'';
(4) in paragraph (10), as so redesignated-- (A) by striking ``April of the preceding fiscal
year'' and inserting ``October of the preceding fiscal year''; and
(B) by striking ``April 2002'' and inserting ``October 2001'';
(5) by inserting after paragraph (10), as so amended, the following:
``(11) The term `person' includes an affiliate thereof.''; and
(6) by inserting after paragraph (12), as so redesignated, the following:
``(13) The term `establishment subject to a registration fee' means an establishment that is required to register with the Secretary under section 510 and is one of the following types of establishments:
``(A) Manufacturer.--An establishment that makes by any means any article that is a device, including an establishment that sterilizes or otherwise makes such article for or on behalf of a specification developer
or any other person.
``(B) Single-use device reprocessor.--An establishment that, within the meaning of section 201(ll)(2)(A), performs additional processing and manufacturing operations on a single-use device that
has previously been used on a patient.
``(C) Specification developer.--An establishment that develops specifications for a device that is distributed under the establishment's name but which performs no manufacturing, including an establishment that, in addition to developing specifications, also arranges for the manufacturing of devices labeled with another establishment's name by a contract manufacturer.''.
[[Page 121 STAT. 844]]
SEC. 212. AUTHORITY TO ASSESS AND USE DEVICE FEES.
(a) Types of Fees.-- (1) In general.--Section 738(a) (21 U.S.C. 379j(a)) is
amended-- (A) in paragraph (1), by striking ``Beginning on
the date of the enactment of the Medical Device User Fee
and Modernization Act of 2002'' and inserting ``Beginning
in fiscal year 2008''; and
(B) by amending the designation and heading of paragraph (2) to read as follows:
``(2) Premarket application, premarket report, supplement, and submission fee, and annual fee for periodic reporting concerning a class iii device.--''.
(2) Fee amounts.--Section 738(a)(2)(A) (21 U.S.C. 379j(a)(2)(A)) is amended--
(A) in clause (iii), by striking ``a fee equal to the fee that applies'' and inserting ``a fee equal to
75 percent of the fee that applies'';
(B) in clause (iv), by striking ``21.5 percent'' and
inserting ``15 percent'';
(C) in clause (v), by striking ``7.2 percent'' and inserting ``7 percent'';
(D) by redesignating clauses (vi) and (vii) as clauses (vii) and (viii), respectively;
(E) by inserting after clause (v) the following: ``(vi) For a 30-day notice, a fee equal to
1.6 percent of the fee that applies under clause (i).'';
(F) in clause (viii), as so redesignated-- (i) by striking ``1.42 percent'' and
inserting ``1.84 percent''; and
(ii) by striking ``, subject to any adjustment
under subsection (e)(2)(C)(ii)''; and (G) by inserting after such clause (viii) the
following: ``(ix) For a request for classification
information, a fee equal to 1.35 percent of the fee that applies under clause (i).
``(x) For periodic reporting concerning a class III device, an annual fee equal to 3.5 percent of the fee that applies under clause (i).''.
(3) Payment.--Section 738(a)(2)(C) (21 U.S.C. 379j(a)(2)(C))
is amended to read as follows: ``(C) Payment.--The fee required by subparagraph
(A) shall be due upon submission of the premarket application, premarket report, supplement, premarket notification submission, 30-day notice, request for classification information, or periodic reporting concerning a class III device. Applicants submitting portions of applications pursuant to section 515(c)(4) shall pay such fees upon submission of the first
portion of such applications.''.
(4) Refunds.--Section 738(a)(2)(D) (21 U.S.C. 379j(a)(2)(D))
is amended-- (A) in clause (iii), by striking the last two
sentences; and (B) by adding after clause (iii) the following:
``(iv) Modular applications withdrawn before first action.--The Secretary shall refund 75 percent of the application fee paid for an application submitted
[[Page 121 STAT. 845]]
under section 515(c)(4) that is withdrawn before a
second portion is submitted and before a first action on the first portion.
``(v) Later withdrawn modular applications.--
If an application submitted under section 515(c)(4) is withdrawn after a second or subsequent portion is submitted but before any first action, the Secretary may return a portion of the fee. The amount of refund, if any, shall
be based on the level of effort already expended on the review of the portions submitted.
``(vi) Sole discretion to refund.--The Secretary shall have sole discretion to refund a fee or portion of the fee under clause (iii) or (v). A determination by the Secretary concerning
a refund under clause (iii) or (v) shall not be reviewable.''.
(5) Annual establishment registration fee.--Section 738(a) (21 U.S.C. 379j(a)) is amended by adding after paragraph (2)
the following:
``(3) Annual establishment registration fee.-- ``(A) In general.--Except as provided in
subparagraph (B), each establishment subject to a registration fee shall be subject to a fee for each initial or annual registration under section 510 beginning with its registration for fiscal year 2008.
``(B) Exception.--No fee shall be required under subparagraph (A) for an establishment operated by a State or Federal governmental entity or an Indian tribe (as defined in the Indian Self Determination and Educational Assistance Act), unless a device manufactured by the establishment is to be distributed commercially.
``(C) Payment.--The fee required under subparagraph (A) shall be due once each fiscal year, upon the
initial registration of the establishment or upon the annual registration under section 510.''.
(b) Fee Amounts.--Section 738(b) (21 U.S.C. 379j(b)) is amended to read as follows:
``(b) Fee Amounts.--Except as provided in subsections (c), (d), (e), and (h) the fees under subsection (a) shall be based on the following fee amounts:
----------------------------------------------------------------------- -----------------------------------------
Fiscal Fiscal Fiscal Fiscal Fiscal
Fee Type Year 2008 Year 2009 Year 2010 Year 2011 Year 2012 ----------------------------------------------------------------------- ----------------------------------------- Premarket Application.................................... $185,000 $200,725 $217,787 $236,298 $256,384
Establishment Registration............................... $1,706 $1,851 $2,008 $2,179 $2,364.'' ----------------------------------------------------------------------- -----------------------------------------
(c) Annual Fee Setting.-- (1) In general.--Section 738(c) (21 U.S.C. 379j(c)(1)) is
amended-- (A) in the subsection heading, by striking ``Annual
Fee Setting'' and inserting ``Annual Fee Setting''; and (B) in paragraph (1), by striking the last
sentence.
[[Page 121 STAT. 846]]
(2) Adjustment of annual establishment fee.--Section 738(c) (21 U.S.C. 379j(c)), as amended by paragraph (1), is further amended--
(A) by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respectively;
(B) by inserting after paragraph (1) the following: ``(2) Adjustment.--
``(A) In general.--When setting fees for fiscal year
2010, the Secretary may increase the fee under subsection (a)(3)(A) (applicable to establishments subject to registration) only if the Secretary
estimates that the number of establishments submitting fees for fiscal year 2009 is fewer than 12,250. The percentage increase shall be the percentage by which the estimate of establishments submitting fees in fiscal year 2009
is fewer than 12,750, but in no case may the percentage increase be more than 8.5 percent over that specified
in subsection (b) for fiscal year 2010. If the Secretary makes any adjustment to the fee under subsection (a)(3)(A) for fiscal year 2010, then such fee for
fiscal years 2011 and 2012 shall be adjusted so that such fee for fiscal year 2011 is equal to the adjusted fee for fiscal year 2010 increased by 8.5 percent, and such fee for fiscal year 2012 is equal to the adjusted fee for fiscal year 2011 increased by 8.5 percent.
``(B) Publication.--For <<NOTE: Federal Register, publication.>> any adjustment made under subparagraph (A), the Secretary shall publish in the Federal Register the Secretary's determination to make the adjustment and the rationale for the determination.''; and
(C) in paragraph (4), as redesignated by this paragraph, in subparagraph (A)--
(i) by striking ``For fiscal years 2006 and 2007, the Secretary'' and inserting ``The Secretary''; and
(ii) by striking ``for the first month of fiscal year 2008'' and inserting ``for the first month of the next fiscal year''.
(d) Small Businesses; Fee Waiver and Fee Reduction Regarding Premarket Approval.--
(1) In general.--Section 738(d)(1) (21 U.S.C. 379j(d)(1)) is
amended-- (A) by striking ``, partners, and parent firms'';
and (B) by striking ``clauses (i) through (vi) of
subsection (a)(2)(A)'' and inserting ``clauses (i) through (v) and clauses (vii), (ix), and (x) of subsection (a)(2)(A)''.
(2) Rules relating to premarket approval fees.-- (A) Definition.--Section 738(d)(2)(A) (21 U.S.C.
379j(d)(2)(A)) is amended by striking ``, partners, and parent firms''.
(B) Evidence of qualification.--Section 738(d)(2)(B)
(21 U.S.C. 379j(d)(2)(B)) is amended-- (i) by striking ``(B) Evidence of
qualification.--An applicant'' and inserting the following:
``(B) Evidence of qualification.-- ``(i) In general.--An applicant''; (ii) by striking ``The applicant shall
support its claim'' and inserting the following:
[[Page 121 STAT. 847]]
``(ii) Firms submitting tax returns to the united states internal revenue service.--The applicant shall support its claim'';
(iii) by striking ``, partners, and parent firms'' each place it appears;
(iv) by striking the last sentence and inserting ``If no tax forms are submitted for any affiliate, the applicant shall certify that the applicant has no affiliates.''; and
(v) by adding at the end the following: ``(iii) Firms not submitting tax returns to
the united <<NOTE: Certification. Federal Register, publication.>> states internal revenue service.--In the case of an applicant that has
not previously submitted a Federal income tax return, the applicant and each of its affiliates shall demonstrate that it meets the definition under subparagraph (A) by submission of a signed certification, in such form as the Secretary may direct through a notice published in the Federal Register, that the applicant or affiliate meets the criteria for a small business and a certification, in English, from the national
taxing authority of the country in which the applicant or, if applicable, affiliate is headquartered. The certification from such taxing authority shall bear the official seal of such taxing authority and shall provide the
applicant's or affiliate's gross receipts or sales for the most recent year in both the local currency of such country and in United States dollars, the exchange rate used in converting such local currency to dollars, and the dates during which these receipts or sales were collected. The applicant shall also submit a statement signed by the head of the applicant's firm or by its chief financial officer that the applicant has
submitted certifications for all of its affiliates, or that the applicant has no affiliates.''.
(3) Reduced fees.--Section 738(d)(2)(C) (21 U.S.C. 379j(d)(2)(C)) is amended to read as follows:
``(C) Reduced fees.--Where the Secretary finds that the applicant involved meets the definition under subparagraph (A), the fees established under subsection (c)(1) may be paid at a reduced rate of--
``(i) 25 percent of the fee established under such subsection for a premarket application, a premarket report, a supplement, or periodic reporting concerning a class III device; and
``(ii) 50 percent of the fee established under
such subsection for a 30-day notice or a request for classification information.''.
(e) Small Businesses; Fee Reduction Regarding Premarket Notification Submissions.--
(1) In general.--Section 738(e)(1) (21 U.S.C. 379j(e)(1)) is
amended-- (A) by striking ``2004'' and inserting ``2008'';
and (B) by striking ``(a)(2)(A)(vii)'' and inserting
``(a)(2)(A)(viii)''. (2) Rules relating to premarket notification submissions.--
[[Page 121 STAT. 848]]
(A) Definition.--Section 738(e)(2)(A) (21 U.S.C. 379j(e)(2)(A)) is amended by striking ``, partners, and parent firms''.
(B) Evidence of qualification.--Section 738(e)(2)(B)
(21 U.S.C. 379j(e)(2)(B)) is amended-- (i) by striking ``(B) Evidence of
qualification.--An applicant'' and inserting the following:
``(B) Evidence of qualification.--
``(i) In general.--An applicant''; (ii) by striking ``The applicant shall
support its claim'' and inserting the following:
``(ii) Firms submitting tax returns to the united states internal revenue service.--The applicant shall support its claim'';
(iii) by striking ``, partners, and parent firms'' each place it appears;
(iv) by striking the last sentence and inserting ``If no tax forms are submitted for any affiliate, the applicant shall certify that the applicant has no affiliates.''; and
(v) by adding at the end the following: ``(iii) Firms not submitting tax returns to
the united <<NOTE: Certification. Federal Register, publication.>> states internal revenue service.--In the case of an applicant that has
not previously submitted a Federal income tax return, the applicant and each of its affiliates shall demonstrate that it meets the definition under subparagraph (A) by submission of a signed certification, in such form as the Secretary may direct through a notice published in the Federal Register, that the applicant or affiliate meets the criteria for a small business and a certification, in English, from the national taxing authority of the country in which the applicant or, if applicable, affiliate is headquartered. The certification from such taxing authority shall bear the official seal of such taxing authority and shall provide the
applicant's or affiliate's gross receipts or sales for the most recent year in both the local currency of such country and in United States dollars, the exchange rate used in converting such local currency to dollars, and the dates during which these receipts or sales were collected. The applicant shall also submit a statement signed by the head of the applicant's firm or by its chief financial officer that the applicant has
submitted certifications for all of its affiliates, or that the applicant has no affiliates.''.
(3) Reduced fees.--Section 738(e)(2)(C) (21 U.S.C. 379j(e)(2)(C)) is amended to read as follows:
``(C) Reduced fees.--For fiscal year 2008 and each subsequent fiscal year, where the Secretary finds that the applicant involved meets the definition under subparagraph (A), the fee for a premarket notification submission may be paid at 50 percent of the fee that applies under subsection (a)(2)(A)(viii), and as established under subsection (c)(1).''.
(f) Effect of Failure To Pay Fees.--Section 738(f) (21 U.S.C.
379j(f)) is amended to read as follows:
[[Page 121 STAT. 849]]
``(f) Effect of Failure To Pay Fees.-- ``(1) No acceptance of submissions.--A premarket
application, premarket report, supplement, premarket notification submission, 30-day notice, request for classification information, or periodic reporting concerning a class III device submitted by a person subject to fees under subsections (a)(2) and (a)(3) shall be considered incomplete
and shall not be accepted by the Secretary until all fees owed by such person have been paid.
``(2) No registration.--Registration information submitted under section 510 by an establishment subject to a registration fee shall be considered incomplete and shall not be accepted by the Secretary until the registration fee under subsection
(a)(3) owed for the establishment has been paid. Until the fee is paid and the registration is complete, the establishment is deemed
to have failed to register in accordance with section 510.''.
(g) Conditions.--Section 738(g) (21 U.S.C. 379j(g)) is amended-- (1) by striking paragraph (1) and inserting the following: ``(1) Performance goals; termination of program.--With
respect to the amount that, under the salaries and expenses account of the Food and Drug Administration, is appropriated
for a fiscal year for devices and radiological products, fees may not be assessed under subsection (a) for the fiscal year, and the Secretary is not expected to meet any performance goals identified for the fiscal year, if--
``(A) the amount so appropriated for the fiscal year, excluding the amount of fees appropriated for the fiscal year, is more than 1 percent less than $205,720,000 multiplied by the adjustment factor applicable to such fiscal year; or
``(B) fees were not assessed under subsection (a) for the previous fiscal year.''; and
(2) by amending paragraph (2) to read as follows: ``(2) Authority.--If the Secretary does not assess fees
under subsection (a) during any portion of a fiscal year because
of paragraph (1) and if at a later date in such fiscal year the Secretary may assess such fees, the Secretary may assess and collect such fees, without any modification in the rate for premarket applications, supplements, premarket reports, premarket notification submissions, 30-day notices, requests
for classification information, periodic reporting concerning a class III device, and establishment registrations at any time
in such fiscal year, notwithstanding the provisions of subsection (a) relating to the date fees are to be paid.''.
(h) Crediting and Availability of Fees.-- (1) Authorization of appropriations.--Section 738(h)(3) (21
U.S.C. 379j(h)(3)) is amended to read as follows: ``(3) Authorizations of appropriations.--There are
authorized to be appropriated for fees under this section-- ``(A) $48,431,000 for fiscal year 2008; ``(B) $52,547,000 for fiscal year 2009; ``(C) $57,014,000 for fiscal year 2010; ``(D) $61,860,000 for fiscal year 2011; and ``(E) $67,118,000 for fiscal year 2012.''.
[[Page 121 STAT. 850]]
(2) Offset.--Section 738(h)(4) (21 U.S.C. 379j(h)(3)) is amended to read as follows:
``(4) Offset.--If the cumulative amount of fees collected during fiscal years 2008, 2009, and 2010, added to the amount estimated to be collected for fiscal year 2011, which estimate shall be based upon the amount of fees received by the
Secretary through June 30, 2011, exceeds the amount of fees specified in aggregate in paragraph (3) for these four fiscal years, the aggregate amount in excess shall be credited to the appropriation account of the Food and Drug Administration as provided in paragraph (1), and shall be subtracted from the amount of fees that would otherwise be authorized to be collected under this section pursuant to appropriation Acts for fiscal year 2012.''.
SEC. 213. REAUTHORIZATION; REPORTING REQUIREMENTS.
Part 3 of subchapter C of chapter VII is amended by inserting after section 738 the following: ``SEC. 738A. <<NOTE: 21 USC 379j-1.>> REAUTHORIZATION; REPORTING
REQUIREMENTS.
``(a) Reports.-- ``(1) Performance report.--For fiscal years 2008 through
2012, not later than 120 days after the end of each fiscal year during which fees are collected under this part, the Secretary shall prepare and submit to the Committee on Health, Education, Labor, and Pensions of the Senate and the Committee on Energy and Commerce of the House of Representatives, a report concerning the progress of the Food and Drug Administration in achieving the goals identified in the letters described in section 201(c) of the Food and Drug Administration Amendments Act of 2007 during such fiscal year and the future plans of the Food and Drug Administration for meeting the goals. The report for a fiscal year shall include information on all previous cohorts for which the Secretary has not given a complete response on all device premarket applications and reports, supplements, and premarket notifications in the cohort.
``(2) Fiscal report.--For fiscal years 2008 through 2012, not later than 120 days after the end of each fiscal year
during which fees are collected under this part, the Secretary shall prepare and submit to the Committee on Health, Education,
Labor,
and Pensions of the Senate and the Committee on Energy and Commerce of the House of Representatives, a report on the implementation of the authority for such fees during such
fiscal year and the use, by the Food and Drug Administration, of the fees collected during such fiscal year for which the report is made.
``(3) Public <<NOTE: Website.>> availability.--The Secretary
shall make the reports required under paragraphs (1) and (2) available to the public on the Internet Web site of the Food
and Drug Administration.
``(b) Reauthorization.-- ``(1) Consultation.--In developing recommendations to
present to Congress with respect to the goals, and plans for meeting the goals, for the process for the review of device applications for the first 5 fiscal years after fiscal year 2012, and for the reauthorization of this part for such fiscal years, the Secretary shall consult with--
[[Page 121 STAT. 851]]
``(A) the Committee on Energy and Commerce of the House of Representatives;
``(B) the Committee on Health, Education, Labor, and
Pensions of the Senate; ``(C) scientific and academic experts; ``(D) health care professionals; ``(E) representatives of patient and consumer
advocacy groups; and ``(F) the regulated industry.
``(2) Prior public input.--Prior to beginning negotiations with the regulated industry on the reauthorization of this
part, the Secretary shall--
``(A) <<NOTE: Federal Register, publication.>> publish a notice in the
Federal Register requesting public input on the
reauthorization; ``(B) hold a public meeting at which the public may
present its views on the reauthorization, including specific suggestions for changes to the goals referred to in subsection (a)(1);
``(C) provide a period of 30 days after the public meeting to obtain written comments from the public suggesting changes to this part; and
``(D) <<NOTE: Website.>> publish the comments on the
Food and Drug Administration's Internet Web site. ``(3) Periodic consultation.--Not less frequently than once
every month during negotiations with the regulated industry, the
Secretary shall hold discussions with representatives of patient
and consumer advocacy groups to continue discussions of their views on the reauthorization and their suggestions for changes to this part as expressed under paragraph (2).
``(4) Public review of recommendations.--After negotiations with the regulated industry, the Secretary shall--
``(A) present the recommendations developed under paragraph (1) to the Congressional committees specified in such paragraph;
``(B) <<NOTE: Federal Register, publication.>> publish such recommendations
in the Federal Register;
``(C) provide for a period of 30 days for the public
to provide written comments on such recommendations; ``(D) hold a meeting at which the public may
present its views on such recommendations; and
``(E) after consideration of such public views and comments, revise such recommendations as necessary.
``(5) Transmittal <<NOTE: Deadline.>> of recommendations.-- Not later than January 15, 2012, the Secretary shall transmit
to Congress the revised recommendations under paragraph (4), a summary of the views and comments received under such
paragraph, and any changes made to the recommendations in response to such views and comments.
``(6) Minutes of negotiation meetings.-- ``(A) Public <<NOTE: Website.>> availability.--
Before presenting the recommendations developed under paragraphs (1) through (5) to the Congress, the Secretary shall make publicly available, on the public Web site of the Food and Drug Administration, minutes
of all negotiation meetings conducted under this
subsection between the Food and Drug Administration and the regulated industry.
[[Page 121 STAT. 852]]
``(B) Content.--The minutes described under subparagraph (A) shall summarize any substantive proposal made by any party to the negotiations as well as significant controversies or differences of opinion during the negotiations and their resolution.''.
SEC. 214. <<NOTE: 21 USC 379i note.>> SAVINGS CLAUSE.
Notwithstanding section 107 of the Medical Device User Fee and Modernization Act of 2002 (Public Law 107-250), and notwithstanding the amendments made by this subtitle, part 3 of subchapter C of chapter VII of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 379i et seq.), as in effect on the day before the date of the enactment of this subtitle,
shall continue to be in effect with respect to premarket applications, premarket reports, premarket notification submissions, and supplements (as defined in such part as of such day) that on or after October 1, 2002, but before October 1, 2007, were accepted by the Food and Drug Administration for filing with respect to assessing and collecting any fee required by such part for a fiscal year prior to fiscal year 2008. SEC. 215. ADDITIONAL AUTHORIZATION OF APPROPRIATIONS FOR
POSTMARKET SAFETY INFORMATION.
For the purpose of collecting, developing, reviewing, and evaluating postmarket safety information on medical devices, there are authorized to be appropriated to the Food and Drug Administration, in addition to the amounts authorized by other provisions of law for such purpose--
(1) $7,100,000 for fiscal year 2008; (2) $7,455,000 for fiscal year 2009; (3) $7,827,750 for fiscal year 2010; (4) $8,219,138 for fiscal year 2011; and (5) $8,630,094 for fiscal year 2012.
SEC. 216. <<NOTE: 21 USC 379i note.>> EFFECTIVE DATE.
The amendments made by this subtitle shall take effect on October 1, 2007, or the date of the enactment of this Act, whichever is later, except that fees under part 3 of subchapter C of chapter VII of the Federal Food, Drug, and Cosmetic Act shall be assessed for all premarket applications, premarket reports, supplements, 30-day notices, and premarket notification submissions received on or after October 1, 2007, regardless of the date of the enactment of this Act. SEC. 217. <<NOTE: 21 USC 379i note.>> SUNSET CLAUSE.
The amendments made by this subtitle cease to be effective October 1, 2012, except that section 738A of the Federal Food, Drug, and Cosmetic Act (regarding annual performance and financial reports) ceases to be effective January 31, 2013.
Subtitle B--Amendments Regarding Regulation of Medical Devices
SEC. 221. EXTENSION OF AUTHORITY FOR THIRD PARTY REVIEW OF PREMARKET NOTIFICATION.
Section 523(c) (21 U.S.C. 360m(c)) is amended by striking ``2007'' and inserting ``2012''.
[[Page 121 STAT. 853]]
SEC. 222. REGISTRATION.
(a) Annual Registration of Producers of Drugs and Devices.--Section 510(b) (21 U.S.C. 360(b)) is amended--
(1) by striking ``(b) On or before'' and inserting ``(b)(1) On or before'';
(2) by striking ``or a device or devices''; and (3) by adding at the end the following:
``(2) During the period beginning on October 1 and ending on December 31 of each year, every person who owns or operates any establishment in any State engaged in the manufacture, preparation, propagation, compounding, or processing of a device or devices shall register with the Secretary his name, places of business, and all such establishments.''.
(b) Registration of Foreign Establishments.--Section 510(i)(1) (21 U.S.C. 360(i)(1)) is amended by striking ``On or before December 31'' and all that follows and inserting the following: ``Any establishment within any foreign country engaged in the manufacture, preparation, propagation, compounding, or processing of a drug or device that is imported or offered for import into the United States shall, through electronic means in accordance with the criteria of the Secretary--
``(A) upon first engaging in any such activity, immediately register with the Secretary the name and place of business of the establishment, the name of the United States agent for the establishment, the name of each importer of such drug or device in the United States that is known to the establishment, and
the name of each person who imports or offers for import such drug or device to the United States for purposes of importation; and
``(B) each establishment subject to the requirements of subparagraph (A) shall thereafter--
``(i) with respect to drugs, register with the Secretary on or before December 31 of each year; and
``(ii) with respect to devices, register with the Secretary during the period beginning on October 1 and ending on December 31 of each year.''.
SEC. 223. <<NOTE: Reports. Deadlines.>> FILING OF LISTS OF DRUGS AND DEVICES MANUFACTURED, PREPARED, PROPAGATED, AND COMPOUNDED BY REGISTRANTS; STATEMENTS; ACCOMPANYING DISCLOSURES.
Section 510(j)(2) (21 U.S.C. 360(j)(2)) is amended, in the matter preceding subparagraph (A), by striking ``Each person'' and all that follows through ``the following information:'' and inserting ``Each person who registers with the Secretary under this section shall report to the Secretary, with regard to drugs once during the month of June of each year and once during the month of December of each year, and with regard to devices once each year during the period beginning on October 1 and ending on December 31, the following information:''. SEC. 224. ELECTRONIC REGISTRATION AND LISTING.
Section 510(p) (21 U.S.C. 360(p)) is amended to read as follows: ``(p) Registrations and listings under this section (including the
submission of updated information) shall be submitted to the Secretary by electronic means unless the Secretary grants a request for waiver of such requirement because use of electronic means is not reasonable for the person requesting such waiver.''.
[[Page 121 STAT. 854]]
SEC. 225. REPORT BY GOVERNMENT ACCOUNTABILITY OFFICE.
(a) In General.--The <<NOTE: Study.>> Comptroller General of the United States shall conduct a study on the appropriate use of the
process under section 510(k) of the Federal Food, Drug, and Cosmetic Act as part of the device classification process to determine whether a new device is as safe and effective as a classified device.
(b) Consideration.--In determining the effectiveness of the premarket notification and classification authority under section 510(k) and subsections (f) and (i) of section 513 of the Federal Food, Drug, and Cosmetic Act, the study under subsection (a) shall consider the Secretary of Health and Human Services's evaluation of the respective intended uses and technologies of such devices, including the effectiveness of such Secretary's comparative assessment of technological characteristics such as device materials, principles of operations, and power sources.
(c) Report.--Not later than 1 year after the date of the enactment of this Act, the Comptroller General shall complete the study under subsection (a) and submit to the Congress a report on the results of such study. SEC. 226. UNIQUE DEVICE IDENTIFICATION SYSTEM.
(a) In General.--Section 519 (21 U.S.C. 360i) is amended-- (1) by redesignating subsection (f) as subsection (g); and (2) by inserting after subsection (e) the following:
``Unique Device Identification System
``(f) The <<NOTE: Regulations.>> Secretary shall promulgate regulations establishing a unique device identification system for medical devices requiring the label of devices to bear a unique identifier, unless the Secretary requires an alternative placement or provides an exception for a particular device or type of device. The unique identifier shall adequately identify the device through distribution and use, and may include information on the lot or serial number.''.
(b) Conforming Amendment.--Section 303 (21 U.S.C. 333) is amended-- (1) by redesignating the subsection that follows subsection
(e) as subsection (f); and (2) in paragraph (1)(B)(ii) of subsection (f), as so
redesignated, by striking ``519(f)'' and inserting ``519(g)''. SEC. 227. FREQUENCY OF REPORTING FOR CERTAIN DEVICES.
Subparagraph (B) of section 519(a)(1) (21 U.S.C. 360i(a)(1)) is amended by striking ``were to recur;'' and inserting the following: ``were to recur, which report under this subparagraph--
``(i) shall be submitted in accordance with part 803 of title 21, Code of Federal Regulations (or successor regulations), unless the Secretary grants an exemption or variance from, or an alternative to, a requirement under such regulations pursuant to section 803.19 of such part, if the device involved is--
``(I) a class III device; ``(II) a class II device that is
permanently implantable, is life supporting, or is life sustaining; or
``(III) <<NOTE: Federal Register, publication.>> a type of device which the Secretary has, by notice published in the Federal
Register or letter to the person who is the manufacturer
[[Page 121 STAT. 855]]
or importer of the device, indicated should be subject to such part 803 in order to protect the public health;
``(ii) shall, if the device is not subject to clause (i), be submitted in accordance with criteria established by the Secretary for reports made pursuant to this clause, which criteria
shall require the reports to be in summary form and
made on a quarterly basis; or
``(iii) shall, if the device is imported into the United States and for which part 803 of title 21, Code of Federal Regulations (or successor regulations) requires an importer to submit a report to the manufacturer, be submitted by the importer to the manufacturer in accordance with part 803 of title 21, Code of Federal Regulations (or successor regulations)''.
SEC. 228. INSPECTIONS BY ACCREDITED PERSONS.
Section 704(g) (21 U.S.C. 374(g)) is amended-- (1) in paragraph (1), by striking ``Not later than one year
after the date of the enactment of this subsection, the Secretary'' and inserting ``The Secretary'';
(2) in paragraph (2), by-- (A) striking ``Not later than 180 days after the
date of enactment of this subsection, the Secretary'' and inserting ``The Secretary''; and
(B) striking the fifth sentence; (3) in paragraph (3), by adding at the end the following: ``(F) <<NOTE: Notification. Deadline.>> Such person shall
notify the Secretary of any withdrawal, suspension, restriction,
or expiration of certificate of conformance with the quality systems standard referred to in paragraph (7) for any device establishment that such person inspects under this subsection not later than 30 days after such withdrawal, suspension, restriction, or expiration.
``(G) Such person may conduct audits to establish conformance with the quality systems standard referred to in paragraph (7).'';
(4) by amending paragraph (6) to read as follows:
``(6)(A) Subject to subparagraphs (B) and (C), a device establishment is eligible for inspection by persons accredited under paragraph (2) if the following conditions are met:
``(i) The Secretary classified the results of the most recent inspection of the establishment as `no action indicated' or `voluntary action indicated'.
``(ii) With respect to inspections of the establishment to be conducted by an accredited person, the owner or operator of the establishment submits to the Secretary a notice that--
``(I) provides the date of the last inspection of the establishment by the Secretary and the classification of that inspection;
``(II) states the intention of the owner or operator
to use an accredited person to conduct inspections of the establishment;
``(III) identifies the particular accredited person the owner or operator intends to select to conduct such inspections; and
[[Page 121 STAT. 856]]
``(IV) includes a certification that, with respect to the devices that are manufactured, prepared, propagated, compounded, or processed in the establishment--
``(aa) at least 1 of such devices is marketed in the United States; and
``(bb) at least 1 of such devices is marketed,
or is intended to be marketed, in 1 or more foreign countries, 1 of which countries
certifies, accredits, or otherwise recognizes the person accredited under paragraph (2) and identified under subclause (III) as a person authorized to conduct inspections of device establishments.
``(B)(i) <<NOTE: Deadline.>> Except with respect to the requirement of subparagraph (A)(i), a device establishment is deemed to have clearance to participate in the program and to use the accredited person identified in the notice under subparagraph (A)(ii) for inspections of the establishment unless the Secretary, not later than 30 days after receiving such notice, issues a response that--
``(I) denies clearance to participate as provided under subparagraph (C); or
``(II) makes a request under clause (ii).
``(ii) The Secretary may request from the owner or operator of a device establishment in response to the notice under subparagraph (A)(ii) with respect to the establishment, or from the particular accredited person identified in such notice--
``(I) compliance data for the establishment in accordance with clause (iii)(I); or
``(II) information concerning the relationship between the owner or operator of the establishment and the accredited
person identified in such notice in accordance with clause (iii)(II).
The <<NOTE: Deadline.>> owner or operator of the establishment, or such accredited person, as the case may be, shall respond to such a request not later than 60 days after receiving such request.
``(iii)(I) The compliance data to be submitted by the owner or operator of a device establishment in response to a request under clause (ii)(I) are data describing whether the quality controls of the establishment have been sufficient for ensuring consistent compliance with current good manufacturing practice within the meaning of section 501(h) and with other applicable provisions of this Act. Such data shall include complete reports of inspectional findings regarding good manufacturing practice or other quality control audits that, during the preceding 2-year period, were conducted at the establishment by persons other than the owner or operator of the establishment, together with all other compliance data the Secretary deems necessary. Data under the preceding sentence shall demonstrate to the Secretary whether the establishment has facilitated consistent compliance by promptly correcting any compliance problems identified in such inspections.
``(II) A request to an accredited person under clause (ii)(II) may not seek any information that is not required to be maintained by such person in records under subsection (f)(1).
``(iv) <<NOTE: Deadline.>> A device establishment is deemed to have clearance to participate in the program and to use the accredited person identified in the notice under subparagraph (A)(ii) for inspections of the establishment unless the Secretary, not later than 60 days after receiving the information requested under clause (ii), issues
[[Page 121 STAT. 857]]
a response that denies clearance to participate as provided under subparagraph (C).
``(C)(i) The Secretary may deny clearance to a device establishment if the Secretary has evidence that the certification under subparagraph (A)(ii)(IV) is untrue and the Secretary provides to the owner or operator of the establishment a statement summarizing such evidence.
``(ii) The Secretary may deny clearance to a device establishment if the Secretary determines that the establishment has failed to demonstrate consistent compliance for purposes of subparagraph (B)(iii)(I) and the Secretary provides to the owner or operator of the establishment a statement of the reasons for such determination.
``(iii)(I) The Secretary may reject the selection of the accredited person identified in the notice under subparagraph (A)(ii) if the Secretary provides to the owner or operator of the establishment a statement of the reasons for such rejection. Reasons for the rejection may include that the establishment or the accredited person, as the case may be, has failed to fully respond to the request, or that the Secretary has concerns regarding the relationship between the establishment and such accredited person.
``(II) <<NOTE: Notification.>> If the Secretary rejects the selection of an accredited person by the owner or operator of a device
establishment, the owner or operator may make an additional selection of an accredited person by submitting to the Secretary a notice that identifies the additional selection. <<NOTE: Applicability.>> Clauses (i) and (ii) of subparagraph (B), and subclause (I) of this clause, apply to the selection of an accredited person through a notice under the preceding sentence in the same manner and to the same extent as such provisions apply to a selection of an accredited person through a notice under subparagraph (A)(ii).
``(iv) In the case of a device establishment that is denied clearance under clause (i) or (ii) or with respect to which the selection of the accredited person is rejected under clause (iii), the Secretary shall designate a person to review the statement of reasons, or statement summarizing such evidence, as the case may be, of the Secretary under such clause if, during the 30-day period beginning on the date on which the owner or operator of the establishment receives such statement, the owner or operator requests the review. The <<NOTE: Deadline.>> review shall commence not later than 30 days after the owner or operator requests the review, unless the Secretary and the owner or operator otherwise agree.'';
(5) in paragraph (7)-- (A) in subparagraph (A), by striking ``(A)
Persons'' and all that follows through the end and inserting the following: ``(A) <<NOTE: Records.>> Persons accredited under paragraph (2) to conduct inspections shall record in writing their inspection observations and shall present the observations to the device establishment's designated representative and describe each
observation. Additionally, <<NOTE: Reports.>> such accredited person shall prepare an inspection report in a form and manner designated by the Secretary to conduct inspections, taking into consideration the goals of international harmonization of quality systems standards. Any
official classification of the inspection shall be determined by the Secretary.''; and
(B) by adding at the end the following:
[[Page 121 STAT. 858]]
``(F) <<NOTE: Audits.>> For the purpose of setting risk-based inspectional priorities, the Secretary shall accept voluntary submissions of reports of audits assessing conformance with appropriate quality systems standards set by the International Organization for Standardization (ISO) and identified by the Secretary in public notice. If the owner or operator of an establishment elects to submit audit reports under this subparagraph, the owner or operator shall submit all such audit reports with respect to the establishment during the preceding 2-year periods.''; and
(6) in paragraph (10)(C)(iii), by striking ``based'' and inserting ``base''.
SEC. 229. STUDY OF NOSOCOMIAL INFECTIONS RELATING TO MEDICAL
DEVICES.
(a) In General.--The Comptroller General of the United States shall conduct a study on--
(1) the number of nosocomial infections attributable to new and reused medical devices; and
(2) the causes of such nosocomial infections, including the following:
(A) Reprocessed single-use devices. (B) Handling of sterilized medical devices. (C) In-hospital sterilization of medical devices. (D) Health care professionals' practices for
patient examination and treatment.
(E) Hospital-based policies and procedures for infection control and prevention.
(F) Hospital-based practices for handling of medical
waste. (G) Other causes.
(b) Report.--Not later than 1 year after the date of the enactment of this Act, the Comptroller General shall complete the study under subsection (a) and submit to the Congress a report on the results of such study.
(c) Definition.--In this section, the term ``nosocomial infection'' means an infection that is acquired while an individual is a patient at a hospital and was neither present nor incubating in the patient prior to receiving services in the hospital. SEC. 230. REPORT BY THE FOOD AND DRUG ADMINISTRATION REGARDING
LABELING INFORMATION ON THE RELATIONSHIP BETWEEN THE USE OF INDOOR TANNING DEVICES AND DEVELOPMENT OF SKIN CANCER OR OTHER SKIN DAMAGE.
(a) In General.--The Secretary of Health and Human Services (referred to in this section as the ``Secretary''), acting through the Commissioner of Food and Drugs, shall determine--
(1) whether the labeling requirements for indoor tanning devices, including the positioning requirements, provide sufficient information to consumers regarding the risks that
the use of such devices pose for the development of irreversible damage to the eyes and skin, including skin cancer; and
(2)(A) whether modifying the warning label required on tanning beds to read, ``Ultraviolet radiation can cause skin cancer'', or any other additional warning, would communicate
the risks of indoor tanning more effectively; or
(B) whether there is no warning that would be capable of adequately communicating such risks.
[[Page 121 STAT. 859]]
(b) Consumer Testing.--In making the determinations under subsection (a), the Secretary shall conduct appropriate consumer testing to
determine consumer understanding of label warnings. (c) Report.--Not later than 1 year after the date of the enactment
of this Act, the Secretary shall submit to the Congress a report that provides the determinations under subsection (a). In addition, the Secretary shall include in the report the measures being implemented by the Secretary to significantly reduce the risks associated with indoor tanning devices.
TITLE III--PEDIATRIC <<NOTE: Pediatric Medical Device Safety and Improvement Act of 2007.>> MEDICAL DEVICE SAFETY AND IMPROVEMENT ACT OF 2007 SEC. 301. <<NOTE: 21 USC 301 note.>> SHORT TITLE.
This title may be cited as the ``Pediatric Medical Device Safety and Improvement Act of 2007''. SEC. 302. TRACKING PEDIATRIC DEVICE APPROVALS.
Chapter V of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 351 et seq.) is amended by inserting after section 515 the following: ``SEC. 515A. <<NOTE: 21 USC 360e-1.>> PEDIATRIC USES OF DEVICES.
``(a) New Devices.-- ``(1) In general.--A person that submits to the Secretary
an application under section 520(m), or an application (or supplement to an application) or a product development protocol under section 515, shall include in the application or protocol the information described in paragraph (2).
``(2) Required information.--The application or protocol described in paragraph (1) shall include, with respect to the device for which approval is sought and if readily available--
``(A) a description of any pediatric subpopulations that suffer from the disease or condition that the device is intended to treat, diagnose, or cure; and
``(B) the number of affected pediatric patients. ``(3) Annual report.--Not later than 18 months after the
date of the enactment of this section, and annually thereafter, the Secretary shall submit to the Committee on Health, Education, Labor, and Pensions of the Senate and the Committee on Energy and Commerce of the House of Representatives a report that includes--
``(A) the number of devices approved in the year preceding the year in which the report is submitted,
for which there is a pediatric subpopulation that suffers from the disease or condition that the device is intended to treat, diagnose, or cure;
``(B) the number of devices approved in the year preceding the year in which the report is submitted, labeled for use in pediatric patients;
``(C) the number of pediatric devices approved in the year preceding the year in which the report is submitted, exempted from a fee pursuant to section 738(a)(2)(B)(v); and
[[Page 121 STAT. 860]]
``(D) the review time for each device described in subparagraphs (A), (B), and (C).
``(b) Determination of Pediatric Effectiveness Based on Similar Course of Disease or Condition or Similar Effect of Device on Adults.--
``(1) In general.--If the course of the disease or condition
and the effects of the device are sufficiently similar in adults
and pediatric patients, the Secretary may conclude that adult data may be used to support a determination of a reasonable assurance of effectiveness in pediatric populations, as appropriate.
``(2) Extrapolation between subpopulations.--A study may not
be needed in each pediatric subpopulation if data from one subpopulation can be extrapolated to another subpopulation.
``(c) Pediatric Subpopulation.--For purposes of this section, the term `pediatric subpopulation' has the meaning given the term in section 520(m)(6)(E)(ii).''. SEC. 303. MODIFICATION TO HUMANITARIAN DEVICE EXEMPTION.
(a) In General.--Section 520(m) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360j(m)) is amended--
(1) in paragraph (3), by striking ``No'' and inserting ``Except as provided in paragraph (6), no'';
(2) in paragraph (5)-- (A) by inserting ``, if the Secretary has reason to
believe that the requirements of paragraph (6) are no longer met,'' after ``public health''; and
(B) by adding at the end the following: ``If the person granted an exemption under paragraph (2) fails
to demonstrate continued compliance with the requirements of this subsection, the Secretary may suspend or withdraw the exemption from the effectiveness requirements of sections 514 and 515 for a humanitarian device only after providing notice and an opportunity for an informal hearing.''; and
(3) by striking paragraph (6) and inserting after paragraph (5) the following new paragraphs:
``(6)(A) Except as provided in subparagraph (D), the prohibition in paragraph (3) shall not apply with respect to a person granted an exemption under paragraph (2) if each of the following conditions apply:
``(i)(I) The device with respect to which the exemption is granted is intended for the treatment or diagnosis of a disease or condition that occurs in pediatric patients or in a
pediatric subpopulation, and such device is labeled for use in pediatric patients or in a pediatric subpopulation in which the disease
or
condition occurs. ``(II) The device was not previously approved under this
subsection for the pediatric patients or the pediatric subpopulation described in subclause (I) prior to the date of the enactment of the Pediatric Medical Device Safety and Improvement Act of 2007.
``(ii) During any calendar year, the number of such devices distributed during that year does not exceed the annual distribution number specified by the Secretary when the Secretary grants such exemption. The annual distribution number shall
[[Page 121 STAT. 861]]
be based on the number of individuals affected by the disease or
condition that such device is intended to treat, diagnose, or cure, and of that number, the number of individuals likely to use the device, and the number of devices reasonably necessary to treat such individuals. In no case shall the annual distribution number exceed the number identified in paragraph (2)(A).
``(iii) <<NOTE: Notification.>> Such person immediately notifies the Secretary if the number of such devices
distributed during any calendar year exceeds the annual distribution number referred to in clause (ii).
``(iv) <<NOTE: Deadline.>> The request for such exemption is
submitted on or before October 1, 2012.
``(B) The Secretary may inspect the records relating to the number of devices distributed during any calendar year of a person granted an exemption under paragraph (2) for which the prohibition in paragraph (3) does not apply.
``(C) A person may petition the Secretary to modify the annual distribution number specified by the Secretary under subparagraph (A)(ii) with respect to a device if additional information on the number of individuals affected by the disease or condition arises, and the Secretary may modify such number but in no case shall the annual distribution number exceed the number identified in paragraph (2)(A).
``(D) <<NOTE: Applicability.>> If a person notifies the Secretary, or the Secretary determines through an inspection under subparagraph (B), that the number of devices distributed during any calendar year exceeds the annual distribution number, as required under subparagraph (A)(iii), and modified under subparagraph (C), if applicable, then the prohibition in paragraph (3) shall apply with respect to such person for such device for any sales of such device after such notification.
``(E)(i) In this subsection, the term `pediatric patients' means patients who are 21 years of age or younger at the time of the diagnosis or treatment.
``(ii) In this subsection, the term `pediatric subpopulation' means
1 of the following populations: ``(I) Neonates. ``(II) Infants. ``(III) Children. ``(IV) Adolescents.
``(7) The Secretary shall refer any report of an adverse event regarding a device for which the prohibition under paragraph (3) does not apply pursuant to paragraph (6)(A) that the Secretary receives to the Office of Pediatric Therapeutics, established under section 6 of the Best Pharmaceuticals for Children Act (Public Law 107-109). In considering the report, the Director of the Office of Pediatric Therapeutics, in consultation with experts in the Center for Devices and Radiological Health, shall provide for periodic review of the report by the Pediatric Advisory Committee, including obtaining any recommendations of such committee regarding whether the Secretary should take action under this Act in response to the report.
``(8) <<NOTE: Annual review.>> The Secretary, acting through the Office of Pediatric Therapeutics and the Center for Devices and Radiological Health, shall provide for an annual review by the Pediatric Advisory Committee
[[Page 121 STAT. 862]]
of all devices described in paragraph (6) to ensure that the exemption under paragraph (2) remains appropriate for the pediatric populations for which it is granted.''.
(b) Report.--Not later than January 1, 2012, the Comptroller General of the United States shall submit to the Committee on Health, Education, Labor, and Pensions of the Senate and the Committee on Energy and Commerce of the House of Representatives a report on the impact of allowing persons granted an exemption under section 520(m)(2) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360j(m)(2)) with respect to a device to profit from such device pursuant to section 520(m)(6) of such Act (21 U.S.C. 360j(m)(6)) (as amended by subsection (a)), including--
(1) an assessment of whether such section 520(m)(6) (as amended by subsection (a)) has increased the availability of pediatric devices for conditions that occur in small numbers of children, including any increase or decrease in the number of--
(A) exemptions granted under such section 520(m)(2) for pediatric devices; and
(B) applications approved under section 515 of such Act (21 U.S.C. 360e) for devices intended to treat, diagnose, or cure conditions that occur in pediatric patients or for devices labeled for use in a pediatric population;
(2) the conditions or diseases the pediatric devices were intended to treat or diagnose and the estimated size of the
pediatric patient population for each condition or disease; (3) the costs of purchasing pediatric devices, based on a
representative sampling of children's hospitals; (4) the extent to which the costs of such devices are
covered by health insurance; (5) the impact, if any, of allowing profit on access to
such devices for patients;
(6) the profits made by manufacturers for each device that receives an exemption;
(7) an estimate of the extent of the use of the pediatric devices by both adults and pediatric populations for a
condition or disease other than the condition or disease on the label of such devices;
(8) recommendations of the Comptroller General of the United
States regarding the effectiveness of such section 520(m)(6) (as
amended by subsection (a)) and whether any modifications to such
section 520(m)(6) (as amended by subsection (a)) should be made;
(9) existing obstacles to pediatric device development; and (10) an evaluation of the demonstration grants described in
section 305, which shall include an evaluation of the number of pediatric medical devices--
(A) that have been or are being studied in children;
and (B) that have been submitted to the Food and Drug
Administration for approval, clearance, or review under such section 520(m) (as amended by this Act) and any regulatory actions taken.
(c) Guidance.--Not <<NOTE: Deadline. 21 USC 360j note.>> later than 180 days after the date of the enactment of this Act, the Commissioner of Food and Drugs shall issue guidance for institutional review committees on how to evaluate requests for approval for devices for which a humanitarian
[[Page 121 STAT. 863]]
device exemption under section 520(m)(2) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360j(m)(2)) has been granted. SEC. 304. ENCOURAGING PEDIATRIC MEDICAL DEVICE RESEARCH.
(a) Contact Point for Available Funding.--Section 402(b) of the Public Health Service Act (42 U.S.C. 282(b)) is amended--
(1) in paragraph (21), by striking ``and'' after the semicolon at the end;
(2) in paragraph (22), by striking the period at the end and
inserting ``; and''; and (3) by inserting after paragraph (22) the following: ``(23) shall designate a contact point or office to help
innovators and physicians identify sources of funding available
for pediatric medical device development.''.
(b) Plan for Pediatric Medical Device Research.-- (1) In <<NOTE: Deadline.>> general.--Not later than 180
days after the date of the enactment of this Act, the Secretary of Health and Human Services, acting through the Commissioner of Food and Drugs, the Director of the National Institutes of Health, and the Director of the Agency for Healthcare Research and Quality, shall submit to the Committee on Health,
Education, Labor, and Pensions of the Senate and the Committee on Energy and Commerce of the House of Representatives a plan for expanding pediatric medical device research and development. In developing such plan, the Secretary of Health and Human
Services shall consult with individuals and organizations with appropriate expertise in pediatric medical devices.
(2) Contents.--The plan under paragraph (1) shall include-- (A) the current status of federally funded
pediatric medical device research;
(B) any gaps in such research, which may include a survey of pediatric medical providers regarding unmet pediatric medical device needs, as needed; and
(C) a research agenda for improving pediatric medical device development and Food and Drug Administration clearance or approval of pediatric medical devices, and for evaluating the short- and
long- term safety and effectiveness of pediatric medical devices.
SEC. 305. <<NOTE: 42 USC 282 note.>> DEMONSTRATION GRANTS FOR IMPROVING PEDIATRIC DEVICE AVAILABILITY.
(a) In <<NOTE: Deadline.>> General.-- (1) Request for proposals.--Not later than 90 days after
the date of the enactment of this Act, the Secretary of Health and Human Services shall issue a request for proposals for 1 or
more grants or contracts to nonprofit consortia for demonstration projects to promote pediatric device development.
(2) Determination on grants or contracts.--Not later than 180 days after the date the Secretary of Health and Human Services issues a request for proposals under paragraph (1),
the Secretary shall make a determination on the grants or contracts under this section.
(b) Application.--A nonprofit consortium that desires to receive a grant or contract under this section shall submit an application to the Secretary of Health and Human Services at such time, in such manner, and containing such information as the Secretary may require.
[[Page 121 STAT. 864]]
(c) Use of Funds.--A nonprofit consortium that receives a grant or contract under this section shall facilitate the development, production, and distribution of pediatric medical devices by--
(1) encouraging innovation and connecting qualified individuals with pediatric device ideas with potential manufacturers;
(2) mentoring and managing pediatric device projects through
the development process, including product identification, prototype design, device development, and marketing;
(3) connecting innovators and physicians to existing Federal
and non-Federal resources, including resources from the Food and
Drug Administration, the National Institutes of Health, the Small Business Administration, the Department of Energy, the Department of Education, the National Science Foundation, the Department of Veterans Affairs, the Agency for Healthcare Research and Quality, and the National Institute of Standards and Technology;
(4) assessing the scientific and medical merit of proposed pediatric device projects; and
(5) providing assistance and advice as needed on business development, personnel training, prototype development, postmarket needs, and other activities consistent with the purposes of this section.
(d) Coordination.-- (1) National institutes of health.--Each consortium that
receives a grant or contract under this section shall-- (A) coordinate with the National Institutes of
Health's pediatric device contact point or office, designated under section 402(b)(23) of the Public
Health Service Act, as added by section 304(a) of this Act;
and (B) provide to the National Institutes of Health
any identified pediatric device needs that the consortium lacks sufficient capacity to address or those needs in which the consortium has been unable to stimulate manufacturer interest.
(2) Food and drug administration.--Each consortium that receives a grant or contract under this section shall
coordinate with the Commissioner of Food and Drugs and device companies to facilitate the application for approval or clearance of devices labeled for pediatric use.
(3) Effectiveness <<NOTE: Reports.>> and outcomes.--Each consortium that receives a grant or contract under this section shall annually report to the Secretary of Health and Human Services on the status of pediatric device development, production, and distribution that has been facilitated by the consortium.
(e) Authorization of Appropriations.--There are authorized to be
appropriated to carry out this section $6,000,000 for each of fiscal years 2008 through 2012. SEC. 306. AMENDMENTS TO OFFICE OF PEDIATRIC THERAPEUTICS AND
PEDIATRIC ADVISORY COMMITTEE.
(a) Office of Pediatric Therapeutics.--Section 6(b) of the Best Pharmaceuticals for Children Act (21 U.S.C. 393a(b)) is amended by inserting ``, including increasing pediatric access to medical devices'' after ``pediatric issues''.
[[Page 121 STAT. 865]]
(b) Pediatric Advisory Committee.--Section 14 of the Best Pharmaceuticals for Children Act (42 U.S.C. 284m note) is amended--
(1) in subsection (a), by inserting ``(including drugs and biological products) and medical devices'' after ``therapeutics''; and
(2) in subsection (b)-- (A) in paragraph (1), by inserting ``(including
drugs and biological products) and medical devices'' after ``therapeutics''; and
(B) in paragraph (2)-- (i) in subparagraph (A), by striking ``and
505B'' and inserting ``505B, 510(k), 515, and 520(m)'';
(ii) by striking subparagraph (B) and inserting the following:
``(B) identification of research priorities related to therapeutics (including drugs and biological products) and medical devices for pediatric populations and the need for additional diagnostics and treatments for specific pediatric diseases or conditions;''; and
(iii) in subparagraph (C), by inserting ``(including drugs and biological products) and medical devices'' after ``therapeutics''.
SEC. 307. POSTMARKET SURVEILLANCE.
Section 522 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360l) is amended--
(1) by amending the section heading and designation to read as follows:
``SEC. 522. POSTMARKET SURVEILLANCE.''; (2) by striking subsection (a) and inserting the following:
``(a) Postmarket Surveillance.-- ``(1) In general.--
``(A) Conduct.--The Secretary may by order require a
manufacturer to conduct postmarket surveillance for any device of the manufacturer that is a class II or class III device--
``(i) the failure of which would be reasonably
likely to have serious adverse health consequences;
``(ii) that is expected to have significant
use in pediatric populations; or ``(iii) that is intended to be--
``(I) implanted in the human body for more than 1 year; or
``(II) a life-sustaining or life- supporting device used outside a device user facility.
``(B) Condition.--The Secretary may order a postmarket surveillance under subparagraph (A) as a condition to approval or clearance of a device
described in subparagraph (A)(ii).
``(2) Rule of construction.--The provisions of paragraph (1)
shall have no effect on authorities otherwise provided under the
Act or regulations issued under this Act.''; and (3) in subsection (b)--
(A) by striking ``(b) Surveillance Approval.-- Each''
and inserting the following:
``(b) Surveillance Approval.--
[[Page 121 STAT. 866]]
``(1) In general.--Each''; (B) by striking ``The Secretary, in consultation''
and inserting ``Except as provided in paragraph (2), the
Secretary, in consultation''; (C) by striking ``Any determination'' and inserting
``Except as provided in paragraph (2), any determination''; and
(D) by adding at the end the following: ``(2) Longer surveillance for pediatric devices.--The
Secretary may by order require a prospective surveillance period
of more than 36 months with respect to a device that is expected
to have significant use in pediatric populations if such period of more than 36 months is necessary in order to assess the impact of the device on growth and development, or the effects of growth, development, activity level, or other factors on the safety or efficacy of the device.
``(c) Dispute Resolution.--A manufacturer may request review under section 562 of any order or condition requiring postmarket surveillance under this section. During the pendency of such review, the device subject to such a postmarket surveillance order or condition shall not, because of noncompliance with such order or condition, be deemed in violation of section 301(q)(1)(C), adulterated under section 501(f)(1), misbranded under section 502(t)(3), or in violation of, as applicable, section 510(k) or section 515, unless deemed necessary to protect the public health.''.
TITLE <<NOTE: Pediatric Research Equity Act of 2007.>> IV--PEDIATRIC
RESEARCH EQUITY ACT OF 2007 SEC. 401. <<NOTE: 21 USC 301 note.>> SHORT TITLE.
This title may be cited as the ``Pediatric Research Equity Act of 2007''. SEC. 402. REAUTHORIZATION OF PEDIATRIC RESEARCH EQUITY ACT.
(a) In General.--Section 505B of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355c) is amended to read as follows: ``SEC. 505B. RESEARCH INTO PEDIATRIC USES FOR DRUGS AND BIOLOGICAL
PRODUCTS.
``(a) New Drugs and Biological Products.-- ``(1) In general.--A person that submits, on or after the
date of the enactment of the Pediatric Research Equity Act of 2007, an application (or supplement to an application)--
``(A) under section 505 for a new active ingredient,
new indication, new dosage form, new dosing regimen, or new route of administration, or
``(B) under section 351 of the Public Health Service
Act (42 U.S.C. 262) for a new active ingredient, new indication, new dosage form, new dosing regimen, or new route of administration,
shall submit with the application the assessments described in paragraph (2).
``(2) Assessments.-- ``(A) In general.--The assessments referred to in
paragraph (1) shall contain data, gathered using appropriate
[[Page 121 STAT. 867]]
formulations for each age group for which the assessment
is required, that are adequate-- ``(i) to assess the safety and effectiveness
of the drug or the biological product for the claimed indications in all relevant pediatric subpopulations; and
``(ii) to support dosing and administration for each pediatric subpopulation for which the drug or the biological product is safe and effective.
``(B) Similar course of disease or similar effect of
drug or biological product.-- ``(i) In general.--If the course of the
disease and the effects of the drug are sufficiently similar in adults and pediatric patients, the Secretary may conclude that pediatric effectiveness can be extrapolated from adequate and well-controlled studies in adults, usually supplemented with other information obtained in pediatric patients, such as pharmacokinetic studies.
``(ii) Extrapolation between age groups.--A study may not be needed in each pediatric age group if data from one age group can be extrapolated to another age group.
``(iii) Information on extrapolation.--A brief
documentation of the scientific data supporting the conclusion under clauses (i) and (ii) shall
be included in any pertinent reviews for the application under section 505 of this Act or section 351 of the Public Health Service Act (42 U.S.C. 262).
``(3) Deferral.-- ``(A) In general.--On the initiative of the
Secretary or at the request of the applicant, the Secretary may defer submission of some or all assessments required under paragraph (1) until a specified date after approval of the drug or issuance
of the license for a biological product if--
``(i) the Secretary finds that-- ``(I) the drug or biological
product is ready for approval for use in adults before pediatric studies are complete;
``(II) pediatric studies should be delayed until additional safety or effectiveness data have been collected; or
``(III) there is another appropriate
reason for deferral; and ``(ii) the applicant submits to the
Secretary-- ``(I) certification of the grounds
for deferring the assessments; ``(II) a description of the planned
or ongoing studies; ``(III) evidence that the studies
are being conducted or will be conducted
with due diligence and at the earliest possible time; and
``(IV) a timeline for the completion
of such studies. ``(B) Annual review.--
``(i) In general.--On an annual basis following the approval of a deferral under subparagraph (A), the applicant shall submit to the Secretary the following information:
[[Page 121 STAT. 868]]
``(I) Information detailing the progress made in conducting pediatric
studies. ``(II) If no progress has been made
in conducting such studies, evidence and
documentation that such studies will be conducted with due diligence and at the earliest possible time.
``(ii) Public <<NOTE: Website.>> availability.--The information submitted through the annual review under clause (i) shall promptly be made available to the public in an easily accessible manner, including through the Web site of the Food and Drug Administration.
``(4) Waivers.-- ``(A) Full waiver.--On the initiative of the
Secretary or at the request of an applicant, the Secretary shall grant a full waiver, as appropriate, of the requirement to submit assessments for a drug or biological product under this subsection if the applicant certifies and the Secretary finds that--
``(i) necessary studies are impossible or highly impracticable (because, for example, the number of patients is so small or the patients
are geographically dispersed);
``(ii) there is evidence strongly suggesting that the drug or biological product would be ineffective or unsafe in all pediatric age
groups; or
``(iii) the drug or biological product-- ``(I) does not represent a
meaningful therapeutic benefit over existing therapies for pediatric patients; and
``(II) is not likely to be used in a
substantial number of pediatric patients.
``(B) Partial waiver.--On the initiative of the Secretary or at the request of an applicant, the Secretary shall grant a partial waiver, as appropriate, of the requirement to submit assessments for a drug or biological product under this subsection with respect
to a specific pediatric age group if the applicant certifies and the Secretary finds that--
``(i) necessary studies are impossible or highly impracticable (because, for example, the number of patients in that age group is so small or patients in that age group are geographically dispersed);
``(ii) there is evidence strongly suggesting that the drug or biological product would be ineffective or unsafe in that age group;
``(iii) the drug or biological product--
``(I) does not represent a meaningful therapeutic benefit over existing therapies for pediatric patients in that age group; and
``(II) is not likely to be used by a
substantial number of pediatric patients
in that age group; or ``(iv) the applicant can demonstrate that
reasonable attempts to produce a pediatric formulation necessary for that age group have failed.
``(C) Pediatric formulation not possible.--If a waiver is granted on the ground that it is not possible
[[Page 121 STAT. 869]]
to develop a pediatric formulation, the waiver shall cover only the pediatric groups <<NOTE: Public information. Website.>> requiring that formulation. An applicant seeking either a full or partial waiver shall submit to the Secretary documentation detailing why a pediatric formulation cannot be developed and, if the waiver is granted, the applicant's submission shall promptly be made available to the public in an easily accessible manner, including through posting on the Web site of the Food and Drug Administration.
``(D) Labeling requirement.--If the Secretary grants
a full or partial waiver because there is evidence that a drug or biological product would be ineffective or unsafe in pediatric populations, the information shall be included in the labeling for the drug or biological product.
``(b) Marketed Drugs and Biological Products.-- ``(1) In general.--After providing notice in the form of a
letter (that, for a drug approved under section 505, references a declined written request under section 505A for a labeled indication which written request is not referred under section 505A(n)(1)(A) to the Foundation of the National Institutes of Health for the pediatric studies), the Secretary may (by order in the form of a letter) require the sponsor or holder of an approved application for a drug under section 505 or the holder of a license for a biological product under section 351 of the Public Health Service Act to submit by a specified date the assessments described in subsection (a)(2), if the Secretary finds that--
``(A)(i) the drug or biological product is used for a substantial number of pediatric patients for the labeled indications; and
``(ii) adequate pediatric labeling could confer a benefit on pediatric patients;
``(B) there is reason to believe that the drug or biological product would represent a meaningful therapeutic benefit over existing therapies for
pediatric patients for 1 or more of the claimed indications; or
``(C) the absence of adequate pediatric labeling could pose a risk to pediatric patients.
``(2) Waivers.-- ``(A) Full waiver.--At the request of an applicant,
the Secretary shall grant a full waiver, as appropriate,
of the requirement to submit assessments under this subsection if the applicant certifies and the Secretary finds that--
``(i) necessary studies are impossible or highly impracticable (because, for example, the number of patients in that age group is so small or patients in that age group are geographically dispersed); or
``(ii) there is evidence strongly suggesting that the drug or biological product would be ineffective or unsafe in all pediatric age
groups. ``(B) Partial waiver.--At the request of an
applicant, the Secretary shall grant a partial waiver, as appropriate, of the requirement to submit
assessments under this subsection with respect to a specific pediatric age group if the applicant certifies and the Secretary finds that--
[[Page 121 STAT. 870]]
``(i) necessary studies are impossible or highly impracticable (because, for example, the number of patients in that age group is so small or patients in that age group are geographically dispersed);
``(ii) there is evidence strongly suggesting that the drug or biological product would be ineffective or unsafe in that age group;
``(iii)(I) the drug or biological product-- ``(aa) does not represent a
meaningful therapeutic benefit over existing therapies for pediatric patients in that age group; and
``(bb) is not likely to be used in a
substantial number of pediatric patients
in that age group; and ``(II) the absence of adequate labeling could
not pose significant risks to pediatric patients; or
``(iv) the applicant can demonstrate that reasonable attempts to produce a pediatric formulation necessary for that age group have failed.
``(C) Pediatric formulation not possible.--If a waiver is granted on the ground that it is not possible
to develop a pediatric formulation, the waiver shall cover only the pediatric groups <<NOTE: Public information. Website.>> requiring that formulation. An applicant seeking either a full or partial waiver shall submit to the Secretary documentation detailing why a pediatric formulation cannot be developed and, if the waiver is granted, the applicant's submission shall promptly be made available to the public in an easily accessible manner, including through posting on the Web site of the Food and Drug Administration.
``(D) Labeling requirement.--If the Secretary grants
a full or partial waiver because there is evidence that a drug or biological product would be ineffective or unsafe in pediatric populations, the information shall be included in the labeling for the drug or biological product.
``(3) Effect of subsection.--Nothing in this subsection alters or amends section 301(j) of this Act or section 552 of title 5 or section 1905 of title 18, United States Code.
``(c) Meaningful Therapeutic Benefit.--For the purposes of paragraph (4)(A)(iii)(I) and (4)(B)(iii)(I) of subsection (a) and paragraphs (1)(B) and (2)(B)(iii)(I)(aa) of subsection (b), a drug or biological product shall be considered to represent a meaningful therapeutic benefit over existing therapies if the Secretary determines that--
``(1) if approved, the drug or biological product could represent an improvement in the treatment, diagnosis, or prevention of a disease, compared with marketed products adequately labeled for that use in the relevant pediatric population; or
``(2) the drug or biological product is in a class of products or for an indication for which there is a need for additional options.
``(d) Submission of Assessments.--If a person fails to submit an assessment described in subsection (a)(2), or a request for approval of a pediatric formulation described in subsection (a) or (b), in accordance with applicable provisions of subsections (a) and (b)--
[[Page 121 STAT. 871]]
``(1) the drug or biological product that is the subject of the assessment or request may be considered misbranded solely because of that failure and subject to relevant enforcement action (except that the drug or biological product shall not be subject to action under section 303); but
``(2) the failure to submit the assessment or request shall not be the basis for a proceeding--
``(A) to withdraw approval for a drug under section 505(e); or
``(B) to revoke the license for a biological product
under section 351 of the Public Health Service Act.
``(e) Meetings.--Before and during the investigational process for a new drug or biological product, the Secretary shall meet at appropriate times with the sponsor of the new drug or biological product to discuss--
``(1) information that the sponsor submits on plans and timelines for pediatric studies; or
``(2) any planned request by the sponsor for waiver or deferral of pediatric studies.
``(f) Review of Pediatric Plans, Assessments, Deferrals, and Waivers.--
``(1) Review.--Beginning <<NOTE: Deadline.>> not later than 30 days after the date of the enactment of the Pediatric Research Equity Act of 2007, the Secretary shall utilize the internal committee established under section 505C to provide consultation to reviewing divisions on all pediatric plans and assessments prior to approval of an application or supplement for which a pediatric assessment is required under this section and all deferral and waiver requests granted pursuant to this section.
``(2) Activity by committee.--The committee referred to in paragraph (1) may operate using appropriate members of such committee and need not convene all members of the committee.
``(3) Documentation of committee action.--For each drug or biological product, the committee referred to in paragraph (1) shall document, for each activity described in paragraph (4) or (5), which members of the committee participated in such activity.
``(4) Review of pediatric plans, assessments, deferrals, and
waivers.--Consultation on pediatric plans and assessments by the
committee referred to in paragraph (1) pursuant to this section shall occur prior to approval of an application or supplement for which a pediatric assessment is required under this
section. The committee shall review all requests for deferrals and waivers from the requirement to submit a pediatric assessment granted under this section and shall provide recommendations as needed to reviewing divisions, including with respect to
whether such a supplement, when submitted, shall be considered for priority review.
``(5) Retrospective review of pediatric assessments, deferrals, and waivers.--Not <<NOTE: Deadline.>> later than 1 year after the date of the enactment of the Pediatric Research Equity Act of 2007, the committee referred to in paragraph (1) shall conduct a retrospective review and analysis of a representative sample of assessments submitted and deferrals
and waivers approved under this section since the enactment of the Pediatric Research Equity Act of 2003. Such review shall
include an
[[Page 121 STAT. 872]]
analysis of the quality and consistency of pediatric information
in pediatric assessments and the appropriateness of waivers and deferrals granted. Based <<NOTE: Recommen- dations.>> on such review, the Secretary shall issue recommendations to the review divisions for improvements and initiate guidance to industry related to the scope of pediatric studies required under this section.
``(6) Tracking of assessments and labeling changes.--The Secretary, in <<NOTE: Public information. Website.>> consultation with the committee
referred to in paragraph (1), shall track and make available to the public in an easily accessible manner, including through
posting on the Web site of the Food and Drug Administration--
``(A) the number of assessments conducted under this
section; ``(B) the specific drugs and biological products
and their uses assessed under this section;
``(C) the types of assessments conducted under this section, including trial design, the number of
pediatric patients studied, and the number of centers and countries involved;
``(D) the total number of deferrals requested and granted under this section and, if granted, the reasons for such deferrals, the timeline for completion, and
the number completed and pending by the specified date, as outlined in subsection (a)(3);
``(E) the number of waivers requested and granted under this section and, if granted, the reasons for the waivers;
``(F) the number of pediatric formulations developed
and the number of pediatric formulations not developed and the reasons any such formulation was not developed;
``(G) the labeling changes made as a result of assessments conducted under this section;
``(H) an annual summary of labeling changes made as a result of assessments conducted under this section
for distribution pursuant to subsection (h)(2);
``(I) an annual summary of information submitted pursuant to subsection (a)(3)(B); and
``(J) the number of times the committee referred to in paragraph (1) made a recommendation to the Secretary under paragraph (4) regarding priority review, the number of times the Secretary followed or did not
follow such a recommendation, and, if not followed, the
reasons why such a recommendation was not followed.
``(g) Labeling Changes.-- ``(1) Dispute resolution.--
``(A) Request for labeling change and failure to agree.--If, on or after the <<NOTE: Deadline.>> date of the enactment of the Pediatric Research Equity Act of 2007, the Commissioner determines that a sponsor and
the Commissioner have been unable to reach agreement on appropriate changes to the labeling for the drug that
is the subject of the application or supplement, not later than 180 days after the date of the submission of the application or supplement--
``(i) the Commissioner shall request that the sponsor of the application make any labeling change
[[Page 121 STAT. 873]]
that the Commissioner determines to be appropriate; and
``(ii) <<NOTE: Deadline.>> if the sponsor does
not agree within 30 days after the Commissioner's request to make a labeling change requested by
the Commissioner, the Commissioner shall refer the matter to the Pediatric Advisory Committee.
``(B) Action by the pediatric advisory committee.-- Not later than 90 days <<NOTE: Deadline.>> after receiving a referral under subparagraph (A)(ii), the Pediatric Advisory Committee shall--
``(i) review the pediatric study reports; and ``(ii) make a recommendation to the
Commissioner concerning appropriate labeling changes, if any.
``(C) Consideration of <<NOTE: Deadline.>> recommendations.--The Commissioner shall consider the recommendations of the Pediatric Advisory Committee and, if appropriate, not later than 30 days after receiving the recommendation, make a request to the sponsor of the application or supplement to make any labeling changes that the Commissioner determines to be appropriate.
``(D) Misbranding.--If <<NOTE: Deadline.>> the sponsor of the application or supplement, within 30
days after receiving a request under subparagraph (C), does not agree to make a labeling change requested by the Commissioner, the Commissioner may deem the drug that
is the subject of the application or supplement to be misbranded.
``(E) No effect on authority.--Nothing in this subsection limits the authority of the United States to bring an enforcement action under this Act when a drug
lacks appropriate pediatric labeling. Neither course of action (the Pediatric Advisory Committee process or an enforcement action referred to in the preceding sentence) shall preclude, delay, or serve as the basis to stay the other course of action.
``(2) Other labeling changes.--If, on or after the date of the enactment of the Pediatric Research Equity Act of 2007, the Secretary makes a determination that a pediatric assessment conducted under this section does or does not demonstrate that the drug that is the subject of such assessment is safe and effective in pediatric populations or subpopulations, including whether such assessment results are inconclusive, the Secretary shall order the label of such product to include information about the results of the assessment and a statement of the Secretary's determination.
``(h) Dissemination of Pediatric Information.-- ``(1) In general.--Not <<NOTE: Deadline. Public
information. Website.>> later than 210 days after the date of submission of a pediatric assessment under this section, the Secretary shall make available to the public in an easily accessible manner the medical, statistical, and clinical pharmacology reviews of such pediatric assessments, and shall post such assessments on the Web site of the Food and Drug Administration.
``(2) Dissemination of information regarding labeling changes.--Beginning on <<NOTE: Effective date.>> the date of
the enactment of the Pediatric Research Equity Act of 2007, the Secretary shall require that the sponsors of the assessments that result in labeling
[[Page 121 STAT. 874]]
changes that are reflected in the annual summary developed pursuant to subsection (f)(6)(H) distribute such information to physicians and other health care providers.
``(3) Effect of subsection.--Nothing in this subsection shall alter or amend section 301(j) of this Act or section 552 of title 5 or section 1905 of title 18, United States Code.
``(i) Adverse Event Reporting.-- ``(1) Reporting in <<NOTE: Effective date.>> year one.--
Beginning on the date of the enactment of the Pediatric Research
Equity Act of 2007, during the one-year period beginning on the date a labeling change is made pursuant to subsection (g), the Secretary shall ensure that all adverse event reports that have been received for such drug (regardless of when such report was received) are referred to the Office of Pediatric Therapeutics. In considering such reports, the Director of such Office shall provide for the review of such reports by the Pediatric
Advisory Committee, including obtaining any recommendations of such committee regarding whether the Secretary should take action under this Act in response to such reports.
``(2) Reporting in subsequent years.--Following the one- year
period described in paragraph (1), the Secretary shall, as appropriate, refer to the Office of Pediatric Therapeutics all pediatric adverse event reports for a drug for which a
pediatric study was conducted under this section. In considering such reports, the Director of such Office may provide for the review of such reports by the Pediatric Advisory Committee, including obtaining any recommendation of such Committee regarding
whether the Secretary should take action in response to such reports.
``(3) Effect.--The requirements of this subsection shall supplement, not supplant, other review of such adverse event reports by the Secretary.
``(j) Scope of Authority.--Nothing in this section provides to the Secretary any authority to require a pediatric assessment of any drug or biological product, or any assessment regarding other populations or uses of a drug or biological product, other than the pediatric assessments described in this section.
``(k) Orphan Drugs.--Unless the Secretary requires otherwise by regulation, this section does not apply to any drug for an indication for which orphan designation has been granted under section 526.
``(l) Institute of Medicine Study.-- ``(1) In general.--
Not <<NOTE: Deadline. Contracts. Reports.>> later than three years after the date of the enactment of the Pediatric Research Equity Act of 2007, the Secretary shall contract with the Institute of Medicine to conduct a study and report to Congress regarding the pediatric studies conducted pursuant to this section or precursor regulations since 1997 and labeling
changes made as a result of such studies.
``(2) Content of study.--The study under paragraph (1) shall
review and assess the use of extrapolation for pediatric subpopulations, the use of alternative endpoints for pediatric populations, neonatal assessment tools, the number and type of pediatric adverse events, and ethical issues in pediatric clinical trials.
[[Page 121 STAT. 875]]
``(3) Representative sample.--The Institute of Medicine may devise an appropriate mechanism to review a representative sample of studies conducted pursuant to this section from each review division within the Center for Drug Evaluation and Research in order to make the requested assessment.
``(m) Integration With Other Pediatric Studies.--The authority under this section shall remain in effect so long as an application subject to this section may be accepted for filing by the Secretary on or before the date specified in section 505A(q).''.
(b) <<NOTE: 21 USC 355c note.>> Applicability.-- (1) In general.--Notwithstanding subsection (h) of section
505B of the Federal Food, Drug and Cosmetic Act, as in effect on
the day before the date of the enactment of this Act, a pending assessment, including a deferred assessment, required under
such section 505B shall be deemed to have been required under
section 505B of the Federal Food, Drug and Cosmetic Act as in effect on or after the date of the enactment of this Act.
(2) Certain assessments and waiver requests.--An assessment pending on or after the date that is 1 year prior to the date
of the enactment of this Act shall be subject to the tracking and disclosure requirements established under such section 505B, as in effect on or after such date of enactment, except that any such assessments submitted or waivers of such assessments requested before such date of enactment shall not be subject to subsections (a)(4)(C), (b)(2)(C), (f)(6)(F), and (h) of such section 505B.
SEC. 403. ESTABLISHMENT OF INTERNAL COMMITTEE.
Chapter V of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 351 et seq.) is amended by inserting after section 505B the following: ``SEC. 505C. <<NOTE: Establishment. 21 USC 355d.>> INTERNAL
COMMITTEE FOR REVIEW OF PEDIATRIC PLANS, ASSESSMENTS, DEFERRALS, AND WAIVERS.
``The Secretary shall establish an internal committee within the Food and Drug Administration to carry out the activities as described in sections 505A(f) and 505B(f). Such internal committee shall include employees of the Food and Drug Administration, with expertise in pediatrics (including representation from the Office of Pediatric Therapeutics), biopharmacology, statistics, chemistry, legal issues, pediatric ethics, and the appropriate expertise pertaining to the pediatric product under review, such as expertise in child and adolescent psychiatry, and other individuals designated by the Secretary.''. SEC. 404. GOVERNMENT ACCOUNTABILITY OFFICE REPORT.
Not later than January 1, 2011, the Comptroller General of the United States, in consultation with the Secretary of Health and Human Services, shall submit to the Congress a report that addresses the effectiveness of sections 505A and 505B of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355a, 355c) and section 409I of the Public Health Service Act (42 U.S.C. 284m) in ensuring that medicines used by children are tested and properly labeled. Such report shall include--
(1) the number and importance of drugs and biological products for children that are being tested as a result of the amendments made by this title and title V and the importance
[[Page 121 STAT. 876]]
for children, health care providers, parents, and others of
labeling changes made as a result of such testing; (2) the number and importance of drugs and biological
products for children that are not being tested for their use notwithstanding the provisions of this title and title V and possible reasons for the lack of testing;
(3) the number of drugs and biological products for which testing is being done and labeling changes required, including the date labeling changes are made and which labeling changes required the use of the dispute resolution process established pursuant to the amendments made by this title, together with a description of the outcomes of such process, including a description of the disputes and the recommendations of the Pediatric Advisory Committee;
(4) any recommendations for modifications to the programs established under sections 505A and 505B of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355a) and section 409I of the Public Health Service Act (42 U.S.C. 284m) that the Secretary determines to be appropriate, including a detailed rationale
for each recommendation; and
(5)(A) the efforts made by the Secretary to increase the number of studies conducted in the neonate population; and
(B) the results of those efforts, including efforts made to encourage the conduct of appropriate studies in neonates by companies with products that have sufficient safety and other information to make the conduct of the studies ethical and
safe.
TITLE V--BEST <<NOTE: Best Pharmaceuticals for Children Act of 2007.>> PHARMACEUTICALS FOR CHILDREN ACT OF 2007 SEC. 501. <<NOTE: 21 USC 301 note.>> SHORT TITLE.
This title may be cited as the ``Best Pharmaceuticals for Children Act of 2007''. SEC. 502. REAUTHORIZATION OF BEST PHARMACEUTICALS FOR CHILDREN
ACT.
(a) Pediatric Studies of Drugs.-- (1) In general.--Section 505A of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. 355a) is amended to read as follows:
``SEC. 505A. PEDIATRIC STUDIES OF DRUGS.
``(a) Definitions.--As used in this section, the term `pediatric studies' or `studies' means at least one clinical investigation (that, at the Secretary's discretion, may include pharmacokinetic studies) in pediatric age groups (including neonates in appropriate cases) in which a drug is anticipated to be used, and, at the discretion of the Secretary, may include preclinical studies.
``(b) Market Exclusivity for New Drugs.-- ``(1) In general.--Except as provided in paragraph (2), if,
prior to approval of an application that is submitted under section 505(b)(1), the Secretary determines that information relating to the use of a new drug in the pediatric population may produce health benefits in that population, the Secretary makes a written request for pediatric studies (which shall
[[Page 121 STAT. 877]]
include a timeframe for completing such studies), the applicant agrees to the request, such studies are completed using appropriate formulations for each age group for which the study is requested within any such timeframe, and the reports thereof are submitted and accepted in accordance with subsection (d)(3)--
``(A)(i)(I) the period referred to in subsection (c)(3)(E)(ii) of section 505, and in subsection (j)(5)(F)(ii) of such section, is deemed to be five years and six months rather than five years, and the references in subsections (c)(3)(E)(ii) and (j)(5)(F)(ii) of such section to four years, to forty- eight months, and to seven and one-half years are
deemed to be four and one-half years, fifty-four months, and eight years, respectively; or
``(II) the period referred to in clauses (iii) and (iv) of subsection (c)(3)(E) of such section, and in clauses (iii) and (iv) of subsection (j)(5)(F) of such section, is deemed to be three years and six months rather than three years; and
``(ii) if the drug is designated under section 526 for a rare disease or condition, the period referred to in section 527(a) is deemed to be seven years and six months rather than seven years; and
``(B)(i) if the drug is the subject of-- ``(I) a listed patent for which a
certification has been submitted under subsection (b)(2)(A)(ii) or (j)(2)(A)(vii)(II) of section
505 and for which pediatric studies were submitted prior to the expiration of the patent (including any patent extensions); or
``(II) a listed patent for which a certification has been submitted under
subsections (b)(2)(A)(iii) or (j)(2)(A)(vii)(III) of section 505,
the period during which an application may not be approved under section 505(c)(3) or section
505(j)(5)(B) shall be extended by a period of six months after the date the patent expires (including any patent extensions); or
``(ii) if the drug is the subject of a listed patent
for which a certification has been submitted under subsection (b)(2)(A)(iv) or (j)(2)(A)(vii)(IV) of section 505, and in the patent infringement litigation resulting from the certification the court determines that the patent is valid and would be infringed, the period during which an application may not be approved under section 505(c)(3) or section 505(j)(5)(B) shall
be extended by a period of six months after the date the
patent expires (including any patent extensions). ``(2) Exception.--The Secretary shall not extend the period
referred to in paragraph (1)(A) or (1)(B) if the determination made under subsection (d)(3) is made later than 9 months prior to the expiration of such period.
``(c) Market Exclusivity for Already-Marketed Drugs.-- ``(1) In general.--Except as provided in paragraph (2), if
the Secretary determines that information relating to the use of
an approved drug in the pediatric population may produce health benefits in that population and makes a written request to the holder of an approved application under section
[[Page 121 STAT. 878]]
505(b)(1) for pediatric studies (which shall include a timeframe
for completing such studies), the holder agrees to the request, such studies are completed using appropriate formulations for each age group for which the study is requested within any such timeframe, and the reports thereof are submitted and accepted
in accordance with subsection (d)(3)--
``(A)(i)(I) the period referred to in subsection (c)(3)(E)(ii) of section 505, and in subsection (j)(5)(F)(ii) of such section, is deemed to be five years and six months rather than five years, and the references in subsections (c)(3)(E)(ii) and (j)(5)(F)(ii) of such section to four years, to forty- eight months, and to seven and one-half years are
deemed to be four and one-half years, fifty-four months, and eight years, respectively; or
``(II) the period referred to in clauses (iii) and (iv) of subsection (c)(3)(D) of such section, and in clauses (iii) and (iv) of subsection (j)(5)(F) of such section, is deemed to be three years and six months rather than three years; and
``(ii) if the drug is designated under section 526 for a rare disease or condition, the period referred to in section 527(a) is deemed to be seven years and six months rather than seven years; and
``(B)(i) if the drug is the subject of-- ``(I) a listed patent for which a
certification has been submitted under subsection (b)(2)(A)(ii) or (j)(2)(A)(vii)(II) of section
505 and for which pediatric studies were submitted prior to the expiration of the patent (including any patent extensions); or
``(II) a listed patent for which a certification has been submitted under subsection (b)(2)(A)(iii) or (j)(2)(A)(vii)(III) of section 505,
the period during which an application may not be approved under section 505(c)(3) or section
505(j)(5)(B)(ii) shall be extended by a period of six months after the date the patent expires (including any patent extensions); or
``(ii) if the drug is the subject of a listed patent
for which a certification has been submitted under subsection (b)(2)(A)(iv) or (j)(2)(A)(vii)(IV) of section 505, and in the patent infringement litigation resulting from the certification the court determines that the patent is valid and would be infringed, the period during which an application may not be approved under section 505(c)(3) or section 505(j)(5)(B) shall
be extended by a period of six months after the date the patent expires (including any patent extensions).
``(2) Exception.--The <<NOTE: Deadline.>> Secretary shall not extend the period referred to in paragraph (1)(A) or (1)(B) if the determination made under subsection (d)(3) is made later than 9 months prior to the expiration of such period.
``(d) Conduct of Pediatric Studies.-- ``(1) Request for studies.--
``(A) In general.--The Secretary may, after consultation with the sponsor of an application for an investigational new drug under section 505(i), the sponsor of an application for a new drug under section 505(b)(1), or the
[[Page 121 STAT. 879]]
holder of an approved application for a drug under section 505(b)(1), issue to the sponsor or holder a written request for the conduct of pediatric studies
for such drug. <<NOTE: Minorities.>> In issuing such request, the Secretary shall take into account adequate representation of children of ethnic and racial minorities. Such <<NOTE: Timeframe.>> request to
conduct pediatric studies shall be in writing and shall include a timeframe for such studies and a request to the sponsor or holder to propose pediatric labeling resulting from such studies.
``(B) Single written request.--A single written request--
``(i) may relate to more than one use of a drug; and
``(ii) may include uses that are both approved
and unapproved. ``(2) Written request for pediatric studies.--
``(A) Request and response.-- ``(i) In general.--If the Secretary makes a
written request for pediatric studies (including neonates, as appropriate) under subsection (b) or (c), the applicant or holder, not later than 180 days after receiving the written request, shall
respond to the Secretary as to the intention of the applicant or holder to act on the request by-
- ``(I) indicating when the pediatric
studies will be initiated, if the applicant or holder agrees to the request; or
``(II) indicating that the applicant
or holder does not agree to the request and stating the reasons for declining the request.
``(ii) Disagree with request.--If, on or after
the date of the enactment of the Best Pharmaceuticals for Children Act of 2007, the applicant or holder does not agree to the request on the grounds that it is not possible to develop the appropriate pediatric formulation, the applicant or holder shall submit to the Secretary the reasons such pediatric formulation cannot be developed.
``(B) Adverse event reports.--An applicant or holder
that, on or after the date of the enactment of the Best Pharmaceuticals for Children Act of 2007, agrees to the request for such studies shall provide the Secretary,
at the same time as the submission of the reports of such studies, with all postmarket adverse event reports regarding the drug that is the subject of such studies and are available prior to submission of such reports.
``(3) Meeting the <<NOTE: Deadline. Notification.>> studies requirement.--Not later than 180 days after the submission of the reports of the studies, the Secretary shall accept or
reject such reports and so notify the sponsor or holder. The Secretary's only responsibility in accepting or rejecting the reports shall be to determine, within the 180-day period, whether the studies fairly respond to the written request, have been conducted in accordance with commonly accepted scientific principles and protocols, and have been reported in accordance with the requirements of the Secretary for filing.
[[Page 121 STAT. 880]]
``(4) Effect of subsection.--Nothing in this subsection alters or amends section 301(j) of this Act or section 552 of title 5 or section 1905 of title 18, United States Code.
``(e) Notice of Determinations on Studies Requirement.-- ``(1) In <<NOTE: Publication.>> general.--The Secretary
shall publish a notice of any determination, made on or after the date of the enactment of the Best Pharmaceuticals for Children Act of 2007, that the requirements of subsection (d) have been met and that submissions and approvals under subsection (b)(2) or (j) of section 505 for a drug will be
subject to the provisions of this section. Such <<NOTE: Deadline. Records.>> notice shall be published not later than 30 days after the date of the Secretary's determination regarding market exclusivity and shall include a copy of the written request made under subsection (b) or (c).
``(2) Identification of <<NOTE: Publication.>> certain drugs.--The Secretary shall publish a notice identifying any drug for which, on or after the date of the enactment of the Best Pharmaceuticals for Children Act of 2007, a pediatric formulation was developed, studied, and found to be safe and effective in the pediatric population (or specified subpopulation) if the pediatric formulation for such drug is
not introduced onto the market within one year after the date that the Secretary publishes the notice described in paragraph (1). <<NOTE: Deadline.>> Such notice identifying such drug
shall be published not later than 30 days after the date of the expiration of such one year period.
``(f) Internal Review of Written Requests and Pediatric Studies.-- ``(1) Internal review.--The Secretary shall utilize the
internal review committee established under section 505C to review all written requests issued on or after the date of the enactment of the Best Pharmaceuticals for Children Act of 2007, in accordance with paragraph (2).
``(2) Review of written requests.--The committee referred to
in paragraph (1) shall review all written requests issued pursuant to this section prior to being issued.
``(3) Review of pediatric studies.--The committee referred to in paragraph (1) may review studies conducted pursuant to this section to make a recommendation to the Secretary whether to accept or reject such reports under subsection (d)(3).
``(4) Activity by committee.--The committee referred to in paragraph (1) may operate using appropriate members of such committee and need not convene all members of the committee.
``(5) Documentation of committee action.--For each drug, the
committee referred to in paragraph (1) shall document, for each activity described in paragraph (2) or (3), which members of
the committee participated in such activity.
``(6) Tracking pediatric studies and labeling changes.--The Secretary, in <<NOTE: Public information. Website.>> consultation with the committee
referred to in paragraph (1), shall track and make available to the public, in an easily accessible manner, including through posting on the Web site of the Food and Drug Administration--
``(A) the number of studies conducted under this section and under section 409I of the Public Health Service Act;
``(B) the specific drugs and drug uses, including labeled and off-labeled indications, studied under such sections;
[[Page 121 STAT. 881]]
``(C) the types of studies conducted under such sections, including trial design, the number of pediatric patients studied, and the number of centers and countries involved;
``(D) the number of pediatric formulations developed
and the number of pediatric formulations not developed and the reasons such formulations were not developed;
``(E) the labeling changes made as a result of studies conducted under such sections;
``(F) an annual summary of labeling changes made as a result of studies conducted under such sections for distribution pursuant to subsection (k)(2); and
``(G) information regarding reports submitted on or after the date of the enactment of the Best Pharmaceuticals for Children Act of 2007.
``(g) Limitations.--Notwithstanding subsection (c)(2), a drug to which the six-month period under subsection (b) or (c) has already been applied--
``(1) may receive an additional six-month period under subsection (c)(1)(A)(i)(II) for a supplemental application if all other requirements under this section are satisfied, except that such drug may not receive any additional such period under subsection (c)(1)(B); and
``(2) may not receive any additional such period under subsection (c)(1)(A)(ii).
``(h) Relationship to Pediatric Research Requirements.-- Notwithstanding any other provision of law, if any pediatric study is required by a provision of law (including a regulation) other than this section and such study meets the completeness, timeliness, and other requirements of this section, such study shall be deemed to satisfy the requirement for market exclusivity pursuant to this section.
``(i) Labeling Changes.-- ``(1) Priority status for pediatric applications and
supplements.--Any application or supplement to an application under section 505 proposing a labeling change as a result of
any pediatric study conducted pursuant to this section--
``(A) shall be considered to be a priority application or supplement; and
``(B) shall be subject to the performance goals established by the Commissioner for priority drugs.
``(2) Dispute resolution.-- ``(A) Request for labeling change and failure to
agree.--If, on or after the <<NOTE: Deadline.>> date of the enactment of the Best Pharmaceuticals for Children Act of 2007, the Commissioner determines that the sponsor and the Commissioner have been unable to reach agreement on appropriate changes to the labeling for
the drug that is the subject of the application, not later than 180 days after the date of submission of the application--
``(i) the Commissioner shall request that the sponsor of the application make any labeling change that the Commissioner determines to be appropriate; and
``(ii) <<NOTE: Deadline.>> if the sponsor of the application does not agree within 30 days after the Commissioner's request to
[[Page 121 STAT. 882]]
make a labeling change requested by the Commissioner, the Commissioner shall refer the matter to the Pediatric Advisory Committee.
``(B) Action by the pediatric advisory committee.-- Not later <<NOTE: Deadline.>> than 90 days after receiving a referral under subparagraph (A)(ii), the Pediatric Advisory Committee shall--
``(i) review the pediatric study reports; and ``(ii) make a recommendation to the
Commissioner concerning appropriate labeling changes, if any.
``(C) Consideration of <<NOTE: Deadline.>> recommendations.--The Commissioner shall consider the recommendations of the Pediatric Advisory Committee and, if appropriate, not later than 30 days after receiving the recommendation, make a request to the sponsor of the application to
make any labeling change that the Commissioner determines to be appropriate.
``(D) Misbranding.--If <<NOTE: Deadline.>> the sponsor of the application, within 30 days after receiving a request under subparagraph (C), does not agree to make a labeling change requested by the Commissioner, the Commissioner may deem the drug that
is the subject of the application to be misbranded.
``(E) No effect on authority.--Nothing in this subsection limits the authority of the United States to bring an enforcement action under this Act when a drug lacks appropriate pediatric labeling. Neither course of action (the Pediatric Advisory Committee process or an enforcement action referred to in the preceding sentence) shall preclude, delay, or serve as the basis to stay the other course of action.
``(j) Other Labeling Changes.--If, on or after the date of the enactment of the Best Pharmaceuticals for Children Act of 2007, the Secretary determines that a pediatric study conducted under this section does or does not demonstrate that the drug that is the subject of the study is safe and effective, including whether such study results are inconclusive, in pediatric populations or subpopulations, the Secretary shall order the labeling of such product to include information about the results of the study and a statement of the Secretary's determination.
``(k) Dissemination of Pediatric Information.--
``(1) In general.--Not <<NOTE: Deadline. Public information.>> later than 210 days after the date of submission of a report on a pediatric study under this section, the Secretary shall make available to the public the medical, statistical, and clinical pharmacology reviews of pediatric studies conducted under subsection (b) or (c).
``(2) Dissemination of information regarding labeling changes.--Beginning on the date of the enactment of the Best Pharmaceuticals for Children Act of 2007, the Secretary shall include as a requirement of a written request that the sponsors of the studies that result in labeling changes that are reflected in the annual summary developed pursuant to
subsection (f)(3)(F) distribute, at least annually (or more frequently if the Secretary determines that it would be beneficial to the public health), such information to physicians and other health care providers.
[[Page 121 STAT. 883]]
``(3) Effect of subsection.--Nothing in this subsection alters or amends section 301(j) of this Act or section 552 of title 5 or section 1905 of title 18, United States Code.
``(l) Adverse Event Reporting.-- ``(1) Reporting <<NOTE: Effective date.>> in year one.--
Beginning on the date of the enactment of the Best Pharmaceuticals for Children Act of 2007, during the one-year period beginning on the date a labeling change is approved pursuant to subsection (i), the Secretary shall ensure that all adverse event reports that have been received for such drug (regardless of when such report was received) are referred to the Office of Pediatric Therapeutics established under section
6 of the Best Pharmaceuticals for Children Act (Public Law 107- 109). In considering the reports, the Director of such Office shall provide for the review of the reports by the Pediatric Advisory Committee, including obtaining any recommendations of such Committee regarding whether the Secretary should take action under this Act in response to such reports.
``(2) Reporting in subsequent years.--Following the one- year
period described in paragraph (1), the Secretary shall, as appropriate, refer to the Office of Pediatric Therapeutics all pediatric adverse event reports for a drug for which a
pediatric study was conducted under this section. In considering such reports, the Director of such Office may provide for the review of such reports by the Pediatric Advisory Committee, including obtaining any recommendation of such Committee regarding
whether the Secretary should take action in response to such reports.
``(3) Effect.--The requirements of this subsection shall supplement, not supplant, other review of such adverse event reports by the Secretary.
``(m) Clarification of Interaction of Market Exclusivity Under This
Section and Market Exclusivity Awarded to An Applicant for Approval of A Drug Under Section 505(j).--If a 180-day period under section 505(j)(5)(B)(iv) overlaps with a 6-month exclusivity period under this section, so that the applicant for approval of a drug under section 505(j) entitled to the 180-day period under that section loses a portion of the 180-day period to which the applicant is entitled for the drug, the 180-day period shall be extended from--
``(1) the date on which the 180-day period would have expired by the number of days of the overlap, if the 180-day period would, but for the application of this subsection,
expire after the 6-month exclusivity period; or
``(2) the date on which the 6-month exclusivity period expires, by the number of days of the overlap if the 180-day period would, but for the application of this subsection,
expire during the six-month exclusivity period.
``(n) Referral if Pediatric Studies Not Completed.-- ``(1) In general.--Beginning <<NOTE: Effective date.>> on
the date of the enactment of the Best Pharmaceuticals for Children Act of 2007, if pediatric studies of a drug have not been completed under subsection (d) and if the Secretary, through the committee established under section 505C,
determines that there is a continuing need for information relating to the use of the drug in the pediatric population (including
neonates, as appropriate), the Secretary shall carry out the following:
[[Page 121 STAT. 884]]
``(A) For a drug for which a listed patent has not expired, make a determination regarding whether an assessment shall be required to be submitted under section 505B(b). <<NOTE: Deadline. Certification.>> Prior to making such a determination, the Secretary may not take more than 30 days to certify whether the Foundation for the National Institutes of Health has sufficient
funding at the time of such certification to initiate and fund all of the studies in the written request in their entirety within the timeframes specified within the written request. Only if the Secretary makes such certification in the affirmative, the Secretary shall refer all pediatric studies in the written request to the Foundation for the National Institutes of Health
for the conduct of such studies, and such Foundation shall fund such studies. If no certification has been made at the end of the 30-day period, or if the Secretary certifies that funds are not sufficient to initiate and fund all the studies in their entirety, the Secretary shall consider whether assessments shall be required
under section 505B(b) for such drug. ``(B) For a drug that has no listed patents or has
1 or more listed patents that have expired, the Secretary shall refer the drug for inclusion on the list established under section 409I of the Public Health Service Act for the conduct of studies.
``(2) Public notice.--The Secretary shall give the public notice of a decision under paragraph (1)(A) not to require an assessment under section 505B and the basis for such decision.
``(3) Effect of subsection.--Nothing in this subsection alters or amends section 301(j) of this Act or section 552 of title 5 or section 1905 of title 18, United States Code.
``(o) Prompt Approval of Drugs Under Section 505(j) When Pediatric Information Is Added to Labeling.--
``(1) General rule.--A drug for which an application has been submitted or approved under section 505(j) shall not be considered ineligible for approval under that section or misbranded under section 502 on the basis that the labeling of the drug omits a pediatric indication or any other aspect of labeling pertaining to pediatric use when the omitted
indication or other aspect is protected by patent or by exclusivity under clause (iii) or (iv) of section 505(j)(5)(F).
``(2) Labeling.--Notwithstanding clauses (iii) and (iv) of section 505(j)(5)(F), the Secretary may require that the labeling of a drug approved under section 505(j) that omits a pediatric indication or other aspect of labeling as described
in paragraph (1) include--
``(A) a statement that, because of marketing exclusivity for a manufacturer--
``(i) the drug is not labeled for pediatric use; or
``(ii) in the case of a drug for which there is an additional pediatric use not referred to in paragraph (1), the drug is not labeled for the pediatric use under paragraph (1); and
``(B) a statement of any appropriate pediatric contraindications, warnings, or precautions that the Secretary considers necessary.
``(3) Preservation of pediatric exclusivity and other provisions.--This subsection does not affect--
[[Page 121 STAT. 885]]
``(A) the availability or scope of exclusivity under
this section; ``(B) the availability or scope of exclusivity
under section 505 for pediatric formulations;
``(C) the question of the eligibility for approval of any application under section 505(j) that omits any other conditions of approval entitled to exclusivity under clause (iii) or (iv) of section 505(j)(5)(F); or
``(D) except as expressly provided in paragraphs (1)
and (2), the operation of section 505.
``(p) Institute of <<NOTE: Deadline. Contracts. Reports.>> Medicine Study.--Not later than 3 years after the date of the enactment of the Best Pharmaceuticals for Children Act of 2007, the Secretary shall enter into a contract with the Institute of Medicine to conduct a study and report to Congress regarding the written requests made and the studies conducted pursuant to this section. The Institute of Medicine may devise an appropriate mechanism to review a representative sample of requests made and studies conducted pursuant to this section in order to conduct such study. Such study shall--
``(1) review such representative written requests issued by the Secretary since 1997 under subsections (b) and (c);
``(2) review and assess such representative pediatric studies conducted under subsections (b) and (c) since 1997 and labeling changes made as a result of such studies;
``(3) review the use of extrapolation for pediatric subpopulations, the use of alternative endpoints for pediatric populations, neonatal assessment tools, and ethical issues in pediatric clinical trials;
``(4) review and assess the pediatric studies of biological products as required under subsections (a) and (b) of section 505B; and
``(5) make recommendations regarding appropriate incentives for encouraging pediatric studies of biologics.
``(q) Sunset.--A drug may not receive any 6-month period under subsection (b) or (c) unless--
``(1) <<NOTE: Deadline.>> on or before October 1, 2012, the Secretary makes a written request for pediatric studies of the drug;
``(2) <<NOTE: Deadline.>> on or before October 1, 2012, an application for the drug is accepted for filing under section 505(b); and
``(3) all requirements of this section are met.''. (2) <<NOTE: 21 USC 355a note.>> Applicability.--
(A) In general.--The amendment made by this subsection shall apply to written requests under
section 505A of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355a) issued on or after the date of the enactment of this Act.
(B) Certain written requests.--A written request issued under section 505A of the Federal Food, Drug,
and Cosmetic Act, as in effect on the day before the date
of the enactment of this Act, which has been accepted and for which no determination under subsection (d)(2) of such section has been made before such date of enactment, shall be subject to such section 505A,
except that such written requests shall be subject to
subsections (d)(2)(A)(ii), (e)(1) and (2), (f), (i)(2)(A), (j), (k)(1), (l)(1), and (n) of section 505A of the Federal Food, Drug, and Cosmetic Act, as
[[Page 121 STAT. 886]]
in effect on or after the date of the enactment of this Act.
(b) Program for Pediatric Studies of Drugs.--Section 409I of the Public Health Service Act (42 U.S.C. 284m) is amended to read as follows: ``SEC. 409I. PROGRAM FOR PEDIATRIC STUDIES OF DRUGS.
``(a) List of Priority Issues in Pediatric Therapeutics.-- ``(1) In general.--
Not <<NOTE: Deadline. Publication.>> later than one year after the date of the enactment of the Best Pharmaceuticals for Children Act of 2007, the Secretary, acting through the
Director of the National Institutes of Health and in consultation with the Commissioner of Food and Drugs and experts in pediatric research, shall develop and publish a priority list of needs in pediatric therapeutics, including drugs or indications that require study. The list shall be revised every three years.
``(2) Consideration of available information.--In developing
and prioritizing the list under paragraph (1), the Secretary shall consider--
``(A) therapeutic gaps in pediatrics that may include developmental pharmacology, pharmacogenetic determinants of drug response, metabolism of drugs and biologics in children, and pediatric clinical trials;
``(B) particular pediatric diseases, disorders or conditions where more complete knowledge and testing of therapeutics, including drugs and biologics, may be beneficial in pediatric populations; and
``(C) the adequacy of necessary infrastructure to conduct pediatric pharmacological research, including research networks and trained pediatric investigators.
``(b) Pediatric Studies and Research.--The Secretary, acting through the National Institutes of Health, shall award funds to entities that have the expertise to conduct pediatric clinical trials or other research (including qualified universities, hospitals, laboratories, contract research organizations, practice groups, federally funded programs such as pediatric pharmacology research units, other public or private institutions, or individuals) to enable the entities to conduct the drug studies or other research on the issues described in subsection (a). The Secretary may use contracts, grants, or other appropriate funding mechanisms to award funds under this subsection.
``(c) Process for Proposed Pediatric Study Requests and Labeling Changes.--
``(1) Submission of proposed pediatric study request.--The Director of the National Institutes of Health shall, as
appropriate, submit proposed pediatric study requests for consideration by the Commissioner of Food and Drugs for pediatric studies of a specific pediatric indication identified under subsection (a). Such a proposed pediatric study request shall be made in a manner equivalent to a written request made under subsection (b) or (c) of section 505A of the Federal
Food, Drug, and Cosmetic Act, including with respect to the information provided on the pediatric studies to be conducted pursuant to the request. The Director of the National
Institutes of Health may submit a proposed pediatric study request for a drug for which--
[[Page 121 STAT. 887]]
``(A)(i) there is an approved application under section 505(j) of the Federal Food, Drug, and Cosmetic Act; or
``(ii) there is a submitted application that could be approved under the criteria of such section; and
``(B) there is no patent protection or market exclusivity protection for at least one form of the
drug under the Federal Food, Drug, and Cosmetic Act; and
``(C) additional studies are needed to assess the safety and effectiveness of the use of the drug in the pediatric population.
``(2) Written request to holders of approved applications for drugs lacking exclusivity.--The Commissioner of Food and Drugs, in consultation with the Director of the National Institutes of Health, may issue a written request based on the proposed pediatric study request for the indication or indications submitted pursuant to paragraph (1) (which shall include a timeframe for negotiations for an agreement) for pediatric studies concerning a drug identified under subsection (a) to all holders of an approved application for the drug
under section 505 of the Federal Food, Drug, and Cosmetic Act. Such a written request shall be made in a manner equivalent to the manner in which a written request is made under subsection (b) or (c) of section 505A of such Act, including with respect to information provided on the pediatric studies to be conducted pursuant to the request and using appropriate formulations for each age group for which the study is requested.
``(3) Requests for <<NOTE: Deadline. Publication.>> proposals.--If the Commissioner of Food and Drugs does not receive a response to a written request issued under paragraph (2) not later than 30 days after the date on which a request was issued, the Secretary, acting through the Director of the National Institutes of Health and in consultation with the Commissioner of Food and Drugs, shall publish a request for proposals to conduct the pediatric studies described in the written request in accordance with subsection (b).
``(4) Disqualification.--A holder that receives a first right of refusal shall not be entitled to respond to a request
for proposals under paragraph (3). ``(5) Contracts, grants, or other funding mechanisms.--A
contract, grant, or other funding may be awarded under this section only if a proposal is submitted to the Secretary in
such form and manner, and containing such agreements, assurances,
and information as the Secretary determines to be necessary to
carry out this section.
``(6) Reporting of studies.-- ``(A) In general.--On completion of a pediatric
study in accordance with an award under this section, a report concerning the study shall be submitted to the Director of the National Institutes of Health and the Commissioner of Food and Drugs. The report shall
include all data generated in connection with the study, including a written request if issued.
``(B) Availability of reports.--Each report submitted under subparagraph (A) shall be considered to be in the public domain (subject to section 505A(d)(4) of the Federal Food, Drug, and Cosmetic Act) and shall be assigned a
[[Page 121 STAT. 888]]
docket number by the Commissioner of Food and Drugs. An interested person may submit written comments
concerning such pediatric studies to the Commissioner of Food and Drugs, and the written comments shall become part of
the docket file with respect to each of the drugs.
``(C) Action by commissioner.--The Commissioner of Food and Drugs shall take appropriate action in
response to the reports submitted under subparagraph (A) in accordance with paragraph (7).
``(7) Requests for labeling change.--During the 180-day period after the date on which a report is submitted under paragraph (6)(A), the Commissioner of Food and Drugs shall--
``(A) review the report and such other data as are available concerning the safe and effective use in the pediatric population of the drug studied;
``(B) negotiate with the holders of approved applications for the drug studied for any labeling changes that the Commissioner of Food and Drugs determines to be appropriate and requests the holders
to make; and
``(C)(i) place in the public docket file a copy of the report and of any requested labeling changes; and
``(ii) <<NOTE: Federal Register, publication. Website.>> publish in the
Federal Register and through a posting on the Web site of the
Food and Drug Administration a summary of the report and
a copy of any requested labeling changes. ``(8) Dispute resolution.--
``(A) Referral to pediatric advisory committee.-- If,
not later than the <<NOTE: Deadline.>> end of the 180- day period specified in paragraph (7), the holder of an approved application for the drug involved does not agree to any labeling change requested by the Commissioner of Food and Drugs under that paragraph,
the Commissioner of Food and Drugs shall refer the request to the Pediatric Advisory Committee.
``(B) Action by the pediatric advisory committee.-- Not later <<NOTE: Deadline.>> than 90 days after receiving a referral under subparagraph (A), the Pediatric Advisory Committee shall--
``(i) review the available information on the safe and effective use of the drug in the pediatric population, including study reports submitted under this section; and
``(ii) <<NOTE: Recommen- dations.>> make a recommendation to the Commissioner of Food and Drugs as to appropriate labeling changes, if any.
``(9) FDA <<NOTE: Deadline.>> determination.--Not later than
30 days after receiving a recommendation from the Pediatric Advisory Committee under paragraph (8)(B)(ii) with respect to a drug, the Commissioner of Food and Drugs shall consider the recommendation and, if appropriate, make a request to the holders of approved applications for the drug to make any labeling change that the Commissioner of Food and Drugs determines to be appropriate.
``(10) Failure to <<NOTE: Deadline.>> agree.--If a holder of
an approved application for a drug, within 30 days after receiving a request to make a labeling change under paragraph (9), does not agree to make a requested labeling change, the Commissioner of
[[Page 121 STAT. 889]]
Food and Drugs may deem the drug to be misbranded under the Federal Food, Drug, and Cosmetic Act.
``(11) No effect on authority.--Nothing in this subsection limits the authority of the United States to bring an enforcement action under the Federal Food, Drug, and Cosmetic Act when a drug lacks appropriate pediatric labeling. Neither course of action (the Pediatric Advisory Committee process or
an enforcement action referred to in the preceding sentence) shall preclude, delay, or serve as the basis to stay the other course of action.
``(d) Dissemination of <<NOTE: Deadline. Reports.>> Pediatric
Information.--Not later than one year after the date of the enactment of the Best Pharmaceuticals for Children Act of 2007, the Secretary, acting through the Director of the National Institutes of Health, shall study the feasibility of establishing a compilation of information on pediatric drug use and report the findings to Congress.
``(e) Authorization of Appropriations.-- ``(1) In general.--There are authorized to be appropriated
to carry out this section-- ``(A) $200,000,000 for fiscal year 2008; and ``(B) such sums as are necessary for each of the
four succeeding fiscal years. ``(2) Availability.--Any amount appropriated under
paragraph (1) shall remain available to carry out this section until expended.''.
(c) Foundation for the National Institutes of Health.--Section 499(c)(1)(C) of the Public Health Service Act (42 U.S.C. 290b(c)(1)(C)) is amended by striking ``and studies listed by the Secretary pursuant to section 409I(a)(1)(A) of this Act and referred under section 505A(d)(4)(C) of the Federal Food, Drug and Cosmetic Act (21 U.S.C. 355(a)(d)(4)(C)' '' and inserting ``and studies for which the Secretary issues a certification in the affirmative under section 505A(n)(1)(A) of the Federal Food, Drug, and Cosmetic Act''.
(d) Continuation of Operation of Committee.--Section 14 of the Best Pharmaceuticals for Children Act (42 U.S.C. 284m note) is amended by adding at the end the following new subsection:
``(d) Continuation of Operation of Committee.--Notwithstanding section 14 of the Federal Advisory Committee Act, the advisory committee shall continue to operate during the five-year period beginning on the date of the enactment of the Best Pharmaceuticals for Children Act of 2007.''.
(e) Pediatric Subcommittee of the Oncologic Drugs Advisory Committee.--Section 15 of the Best Pharmaceuticals for Children Act (42 U.S.C. 284m note) is amended--
(1) in subsection (a)-- (A) in paragraph (1)--
(i) in subparagraph (B), by striking ``and'' after the semicolon;
(ii) in subparagraph (C), by striking the period at the end and inserting ``; and''; and
(iii) by adding at the end the following new subparagraph:
``(D) provide recommendations to the internal review
committee created under section 505B(f) of the Federal Food, Drug, and Cosmetic Act regarding the implementation of amendments to sections 505A and 505B of the
[[Page 121 STAT. 890]]
Federal Food, Drug, and Cosmetic Act with respect to the
treatment of pediatric cancers.''; and (B) by adding at the end the following new
paragraph: ``(3) Continuation of operation of subcommittee.--
Notwithstanding section 14 of the Federal Advisory Committee Act, the Subcommittee shall continue to operate during the
five- year period beginning on the date of the enactment of the Best Pharmaceuticals for Children Act of 2007.''; and
(2) in subsection (d), by striking ``2003'' and inserting ``2009''.
(f) Effective Date and Limitation for Rule Relating to Toll-Free Number for Adverse Events on Labeling for Human Drug Products.--
(1) In general.--Notwithstanding subchapter II of chapter 5,
and chapter 7, of title 5, United States Code (commonly known as
the ``Administrative Procedure Act'') and any other provision of
law, the proposed rule issued by the Commissioner of Food and Drugs entitled ``Toll-Free Number for Reporting Adverse Events on Labeling for Human Drug Products,'' 69 Fed. Reg. 21778, (April 22, 2004) shall take effect on January 1, 2008, unless such Commissioner issues the final rule before such date.
(2) Limitation.--The proposed rule that takes effect under subsection (a), or the final rule described under subsection (a), shall, notwithstanding section 17(a) of the Best Pharmaceuticals for Children Act (21 U.S.C. 355b(a)), not apply to a drug--
(A) for which an application is approved under section 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355);
(B) that is not described under section 503(b)(1) of
such Act (21 U.S.C. 353(b)(1)); and (C) the packaging of which includes a toll-free
number through which consumers can report complaints to the manufacturer or distributor of the drug.
SEC. 503. TRAINING OF PEDIATRIC PHARMACOLOGISTS.
(a) Investment in Tomorrow's Pediatric Researchers.--Section 452G(2) of the Public Health Service Act (42 U.S.C. 285g-10(2)) is amended by adding before the period at the end the following: ``, including pediatric pharmacological research''.
(b) Pediatric Research Loan Repayment Program.--Section 487F(a)(1) of the Public Health Service Act (42 U.S.C. 288-6(a)(1)) is amended by inserting ``including pediatric pharmacological research,'' after ``pediatric research,''.
TITLE VI--REAGAN-UDALL FOUNDATION
SEC. 601. THE REAGAN-UDALL FOUNDATION FOR THE FOOD AND DRUG
ADMINISTRATION.
(a) In General.--Chapter VII of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 371 et seq.) is amended by adding at the end the following:
[[Page 121 STAT. 891]]
``Subchapter I--Reagan-Udall Foundation for the Food and Drug Administration
``SEC. 770. <<NOTE: 21 USC 379dd.>> ESTABLISHMENT AND FUNCTIONS OF THE FOUNDATION.
``(a) In General.--A nonprofit corporation to be known as the Reagan-Udall Foundation for the Food and Drug Administration (referred to in this subchapter as the `Foundation') shall be established in accordance with this section. The Foundation shall be headed by an Executive Director, appointed by the members of the Board of Directors under subsection (e). The Foundation shall not be an agency or instrumentality of the United States Government.
``(b) Purpose of Foundation.--The purpose of the Foundation is to advance the mission of the Food and Drug Administration to modernize medical, veterinary, food, food ingredient, and cosmetic product development, accelerate innovation, and enhance product safety.
``(c) Duties of the Foundation.--The Foundation shall-- ``(1) taking into consideration the Critical Path reports
and priorities published by the Food and Drug Administration, identify unmet needs in the development, manufacture, and evaluation of the safety and effectiveness, including postapproval, of devices, including diagnostics, biologics, and drugs, and the safety of food, food ingredients, and cosmetics, and including the incorporation of more sensitive and
predictive tools and devices to measure safety;
``(2) establish goals and priorities in order to meet the unmet needs identified in paragraph (1);
``(3) in consultation with the Secretary, identify existing and proposed Federal intramural and extramural research and development programs relating to the goals and priorities established under paragraph (2), coordinate Foundation activities with such programs, and minimize Foundation duplication of existing efforts;
``(4) <<NOTE: Grants. Contracts. Memorandums.>> award grants
to, or enter into contracts, memoranda of understanding, or cooperative agreements with, scientists and entities, which may include the Food and Drug Administration, university consortia, public-private partnerships, institutions of higher education, entities described in section 501(c)(3) of the Internal Revenue Code (and exempt from tax under section 501(a) of such Code), and industry, to efficiently and effectively advance the goals and priorities established under paragraph (2);
``(5) recruit meeting participants and hold or sponsor (in whole or in part) meetings as appropriate to further the goals and priorities established under paragraph (2);
``(6) <<NOTE: Publication.>> release and publish information
and data and, to the extent practicable, license, distribute, and release material, reagents, and techniques to maximize, promote, and coordinate the availability of such material, reagents, and techniques for use by the Food and Drug Administration, nonprofit organizations, and academic and industrial researchers to further the goals and priorities established under paragraph (2);
``(7) ensure that-- ``(A) action is taken as necessary to obtain
patents for inventions developed by the Foundation or with
funds from the Foundation;
[[Page 121 STAT. 892]]
``(B) action is taken as necessary to enable the licensing of inventions developed by the Foundation or with funds from the Foundation; and
``(C) executed licenses, memoranda of understanding,
material transfer agreements, contracts, and other such instruments, promote, to the maximum extent
practicable, the broadest conversion to commercial and noncommercial applications of licensed and patented inventions of the Foundation to further the goals and priorities established under paragraph (2);
``(8) provide objective clinical and scientific information to the Food and Drug Administration and, upon request, to other Federal agencies to assist in agency determinations of how to ensure that regulatory policy accommodates scientific advances and meets the agency's public health mission;
``(9) conduct annual assessments of the unmet needs identified in paragraph (1); and
``(10) carry out such other activities consistent with the purposes of the Foundation as the Board determines appropriate.
``(d) Board of Directors.-- ``(1) Establishment.--
``(A) In general.--The Foundation shall have a Board
of Directors (referred to in this subchapter as the `Board'), which shall be composed of ex officio and appointed members in accordance with this subsection. All appointed members of the Board shall be voting members.
``(B) Ex officio members.--The ex officio members of
the Board shall be the following individuals or their designees:
``(i) The Commissioner. ``(ii) The Director of the National
Institutes of Health.
``(iii) The Director of the Centers for Disease Control and Prevention.
``(iv) The Director of the Agency for Healthcare Research and Quality.
``(C) Appointed members.-- ``(i) In general.--The ex officio members of
the Board under subparagraph (B) shall, by majority vote, appoint to the Board 14 individuals, of which 9 shall be from a list of candidates to be provided by the National Academy of Sciences and 5 shall be from lists of candidates provided by patient and consumer advocacy groups, professional scientific and medical societies, and industry trade organizations. Of such appointed members--
``(I) 4 shall be representatives of the general pharmaceutical, device, food, cosmetic, and biotechnology industries;
``(II) 3 shall be representatives of
academic research organizations; ``(III) 2 shall be representatives
of patient or consumer advocacy organizations;
``(IV) 1 shall be a representative of health care providers; and
[[Page 121 STAT. 893]]
``(V) 4 shall be at-large members with expertise or experience relevant
to the purpose of the Foundation.
``(ii) Requirements.-- ``(I) Expertise.--The ex officio
members shall ensure the Board membership includes individuals with expertise in areas including the sciences of developing, manufacturing, and evaluating the safety and effectiveness of devices, including diagnostics, biologics, and drugs, and the safety of food, food ingredients, and cosmetics.
``(II) Federal employees.--No employee of the Federal Government
shall be appointed as a member of the Board under this subparagraph or under paragraph (3)(B).
``(D) Initial meeting.-- ``(i) In <<NOTE: Deadline.>> general.--Not
later than 30 days after the date of the enactment
of this subchapter, the Secretary shall convene a meeting of the ex officio members of the Board
to-- ``(I) incorporate the Foundation;
and ``(II) appoint the members of the
Board in accordance with subparagraph (C).
``(ii) Service of ex officio members.--Upon the appointment of the members of the Board under clause (i)(II)--
``(I) the terms of service of the Director of the Centers for Disease Control and Prevention and of the Director of the Agency for Healthcare Research and Quality as ex officio members of the Board shall terminate; and
``(II) the Commissioner and the Director of the National Institutes of Health shall continue to serve as ex officio members of the Board, but shall be nonvoting members.
``(iii) Chair.--The ex officio members of the Board under subparagraph (B) shall designate an appointed member of the Board to serve as the Chair of the Board.
``(2) Duties of board.--The Board shall-- ``(A) establish bylaws for the Foundation that--
``(i) <<NOTE: Federal Register, publication.>> are published in the Federal Register and available for public
comment; ``(ii) establish policies for the selection
of the officers, employees, agents, and contractors of the Foundation;
``(iii) establish policies, including ethical standards, for the acceptance, solicitation, and disposition of donations and grants to the Foundation and for the disposition of the assets of the Foundation, including appropriate limits
on the ability of donors to designate, by
stipulation or restriction, the use or recipient of donated funds;
``(iv) establish policies that would subject all employees, fellows, and trainees of the Foundation to the conflict of interest standards under section 208 of title 18, United States
Code;
[[Page 121 STAT. 894]]
``(v) establish licensing, distribution, and publication policies that support the widest and least restrictive use by the public of
information
and inventions developed by the Foundation or with
Foundation funds to carry out the duties described
in paragraphs (6) and (7) of subsection (c), and may include charging cost-based fees for
published material produced by the Foundation;
``(vi) specify principles for the review of proposals and awarding of grants and contracts that include peer review and that are consistent with those of the Foundation for the National Institutes of Health, to the extent determined practicable and appropriate by the Board;
``(vii) specify a cap on administrative expenses for recipients of a grant, contract, or cooperative agreement from the Foundation;
``(viii) establish policies for the execution of memoranda of understanding and cooperative agreements between the Foundation and other entities, including the Food and Drug Administration;
``(ix) establish policies for funding training
fellowships, whether at the Foundation, academic or scientific institutions, or the Food and Drug Administration, for scientists, doctors, and
other professionals who are not employees of regulated industry, to foster greater understanding of and expertise in new scientific tools, diagnostics, manufacturing techniques, and potential barriers to translating basic research into clinical and regulatory practice;
``(x) specify a process for annual Board review of the operations of the Foundation; and
``(xi) establish specific duties of the Executive Director;
``(B) prioritize and provide overall direction to the activities of the Foundation;
``(C) evaluate the performance of the Executive Director; and
``(D) carry out any other necessary activities regarding the functioning of the Foundation.
``(3) Terms and vacancies.-- ``(A) Term.--The term of office of each member of
the Board appointed under paragraph (1)(C) shall be 4 years, except that the terms of offices for the initial appointed members of the Board shall expire on a staggered basis as determined by the ex officio
members. ``(B) Vacancy.--Any vacancy in the membership of
the Board--
``(i) shall not affect the power of the remaining members to execute the duties of the Board; and
``(ii) shall be filled by appointment by the appointed members described in paragraph (1)(C)
by majority vote.
``(C) Partial term.--If a member of the Board does not serve the full term applicable under subparagraph (A), the individual appointed under subparagraph (B) to fill
[[Page 121 STAT. 895]]
the resulting vacancy shall be appointed for the remainder of the term of the predecessor of the individual.
``(D) Serving past term.--A member of the Board may continue to serve after the expiration of the term of the member until a successor is appointed.
``(4) Compensation.--Members of the Board may not receive compensation for service on the Board. Such members may be reimbursed for travel, subsistence, and other necessary
expenses incurred in carrying out the duties of the Board, as set forth in the bylaws issued by the Board.
``(e) Incorporation.--The ex officio members of the Board shall serve as incorporators and shall take whatever actions necessary to incorporate the Foundation.
``(f) Nonprofit Status.--In carrying out subsection (b), the Board shall establish such policies and bylaws under subsection (d), and the Executive Director shall carry out such activities under subsection (g), as may be necessary to ensure that the Foundation maintains status as an organization that--
``(1) is described in subsection (c)(3) of section 501 of the Internal Revenue Code of 1986; and
``(2) is, under subsection (a) of such section, exempt from taxation.
``(g) Executive Director.-- ``(1) In general.--The Board shall appoint an Executive
Director who shall serve at the pleasure of the Board. The Executive Director shall be responsible for the day-to-day operations of the Foundation and shall have such specific
duties and responsibilities as the Board shall prescribe.
``(2) Compensation.--The compensation of the Executive Director shall be fixed by the Board but shall not be greater than the compensation of the Commissioner.
``(h) Administrative Powers.--In carrying out this subchapter, the Board, acting through the Executive Director, may--
``(1) adopt, alter, and use a corporate seal, which shall be
judicially noticed; ``(2) hire, promote, compensate, and discharge 1 or more
officers, employees, and agents, as may be necessary, and define
their duties; ``(3) prescribe the manner in which--
``(A) real or personal property of the Foundation is
acquired, held, and transferred; ``(B) general operations of the Foundation are to
be conducted; and
``(C) the privileges granted to the Board by law are
exercised and enjoyed; ``(4) with the consent of the applicable executive
department or independent agency, use the information, services,
and facilities of such department or agencies in carrying out this section;
``(5) enter into contracts with public and private organizations for the writing, editing, printing, and
publishing of books and other material;
``(6) hold, administer, invest, and spend any gift, devise, or bequest of real or personal property made to the Foundation under subsection (i);
``(7) enter into such other contracts, leases, cooperative agreements, and other transactions as the Board considers appropriate to conduct the activities of the Foundation;
[[Page 121 STAT. 896]]
``(8) modify or consent to the modification of any contract or agreement to which it is a party or in which it has an interest under this subchapter;
``(9) take such action as may be necessary to obtain patents
and licenses for devices and procedures developed by the Foundation and its employees;
``(10) sue and be sued in its corporate name, and complain and defend in courts of competent jurisdiction;
``(11) appoint other groups of advisors as may be determined
necessary to carry out the functions of the Foundation; and ``(12) exercise other powers as set forth in this section,
and such other incidental powers as are necessary to carry out its powers, duties, and functions in accordance with this subchapter.
``(i) Acceptance of Funds From Other Sources.--The Executive Director may solicit and accept on behalf of the Foundation, any funds, gifts, grants, devises, or bequests of real or personal property made to the Foundation, including from private entities, for the purposes of carrying out the duties of the Foundation.
``(j) Service of Federal Employees.--Federal Government employees may serve on committees advisory to the Foundation and otherwise cooperate with and assist the Foundation in carrying out its functions,
so long as such employees do not direct or control Foundation activities.
``(k) Detail of Government Employees; Fellowships.-- ``(1) Detail from federal agencies.--Federal Government
employees may be detailed from Federal agencies with or without reimbursement to those agencies to the Foundation at any time, and such detail shall be without interruption or loss of civil service status or privilege. Each such employee shall abide by the statutory, regulatory, ethical, and procedural standards applicable to the employees of the agency from which such employee is detailed and those of the Foundation.
``(2) Voluntary service; acceptance of federal employees.-- ``(A) Foundation.--The Executive Director of the
Foundation may accept the services of employees detailed
from Federal agencies with or without reimbursement to those agencies.
``(B) Food and drug administration.--The Commissioner may accept the uncompensated services of Foundation fellows or trainees. Such services shall be considered to be undertaking an activity under contract with the Secretary as described in section 708.
``(l) Annual Reports.-- ``(1) Reports to foundation.--Any recipient of a grant,
contract, fellowship, memorandum of understanding, or cooperative agreement from the Foundation under this section shall submit to the Foundation a report on an annual basis for the duration of such grant, contract, fellowship, memorandum of understanding, or cooperative agreement, that describes the activities carried out under such grant, contract, fellowship, memorandum of understanding, or cooperative agreement.
``(2) Report to congress and the fda.--Beginning with fiscal
year 2009, the Executive Director shall submit to Congress and the Commissioner an annual report that--
[[Page 121 STAT. 897]]
``(A) describes the activities of the Foundation and
the progress of the Foundation in furthering the goals and priorities established under subsection (c)(2), including the practical impact of the Foundation on regulated product development;
``(B) provides a specific accounting of the source and use of all funds used by the Foundation to carry
out such activities; and
``(C) provides information on how the results of Foundation activities could be incorporated into the regulatory and product review activities of the Food
and Drug Administration.
``(m) Separation of Funds.--The Executive Director shall ensure that
the funds received from the Treasury are held in separate accounts from funds received from entities under subsection (i).
``(n) Funding.--From amounts appropriated to the Food and Drug Administration for each fiscal year, the Commissioner shall transfer not less than $500,000 and not more than $1,250,000, to the Foundation to carry out subsections (a), (b), and (d) through (m).''.
(b) Other Foundation Provisions.--Chapter VII of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 371 et seq.) (as amended by subsection (a)) is amended by adding at the end the following: ``SEC. 771. <<NOTE: 21 USC 379dd-1.>> LOCATION OF FOUNDATION.
``The Foundation shall, if practicable, be located not more than 20 miles from the District of Columbia. ``SEC. 772. <<NOTE: 21 USC 379dd-2.>> ACTIVITIES OF THE FOOD AND
DRUG ADMINISTRATION.
``(a) In General.--The Commissioner shall receive and assess the report submitted to the Commissioner by the Executive Director of the Foundation under section 770(l)(2).
``(b) Report to Congress.--Beginning with fiscal year 2009, the Commissioner shall submit to Congress an annual report summarizing the incorporation of the information provided by the Foundation in the report described under section 770(l)(2) and by other recipients of grants, contracts, memoranda of understanding, or cooperative agreements into regulatory and product review activities of the Food and Drug Administration.
``(c) Extramural Grants.--The provisions of this subchapter and section 566 shall have no effect on any grant, contract, memorandum of understanding, or cooperative agreement between the Food and Drug Administration and any other entity entered into before, on, or after the date of the enactment of this subchapter.''.
(c) Conforming Amendment.--Section 742(b) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 379l(b)) is amended by adding at the end the following: ``Any such fellowships and training programs under this section or under section 770(d)(2)(A)(ix) may include provision by such scientists and physicians of services on a voluntary and uncompensated basis, as the Secretary determines appropriate. Such scientists and physicians shall be subject to all legal and ethical requirements otherwise applicable to officers or employees of the Department of Health and Human Services.''.
[[Page 121 STAT. 898]]
SEC. 602. OFFICE OF THE CHIEF SCIENTIST.
Chapter IX of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 391 et seq.) is amended by adding at the end the following: ``SEC. 910. <<NOTE: 21 USC 399a.>> OFFICE OF THE CHIEF SCIENTIST.
``(a) Establishment; Appointment.--The Secretary shall establish within the Office of the Commissioner an office to be known as the Office of the Chief Scientist. The Secretary shall appoint a Chief
Scientist to lead such Office. ``(b) Duties of the Office.--The Office of the Chief Scientist
shall-- ``(1) oversee, coordinate, and ensure quality and
regulatory focus of the intramural research programs of the Food and Drug Administration;
``(2) track and, to the extent necessary, coordinate intramural research awards made by each center of the Administration or science-based office within the Office of the Commissioner, and ensure that there is no duplication of research efforts supported by the Reagan-Udall Foundation for the Food and Drug Administration;
``(3) develop and advocate for a budget to support intramural research;
``(4) develop a peer review process by which intramural research can be evaluated;
``(5) identify and solicit intramural research proposals from across the Food and Drug Administration through an
advisory board composed of employees of the Administration that shall include--
``(A) representatives of each of the centers and the
science-based offices within the Office of the Commissioner; and
``(B) experts on trial design, epidemiology, demographics, pharmacovigilance, basic science, and public health; and
``(6) develop postmarket safety performance measures that are as measurable and rigorous as the ones already developed
for premarket review.''.
SEC. 603. CRITICAL PATH PUBLIC-PRIVATE PARTNERSHIPS.
Subchapter E of chapter V of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360bbb et seq.) is amended by adding at the end the following: ``SEC. 566. <<NOTE: 21 USC 360bbb-5.>> CRITICAL PATH PUBLIC-
PRIVATE PARTNERSHIPS.
``(a) Establishment.--The Secretary, acting through the Commissioner of Food and Drugs, may enter into collaborative agreements, to be known as Critical Path Public-Private Partnerships, with one or more eligible entities to implement the Critical Path Initiative of the Food and Drug Administration by developing innovative, collaborative projects in research, education, and outreach for the purpose of fostering medical product innovation, enabling the acceleration of medical product development, manufacturing, and translational therapeutics, and enhancing medical product safety.
``(b) Eligible Entity.--In this section, the term `eligible entity' means an entity that meets each of the following:
``(1) The entity is--
[[Page 121 STAT. 899]]
``(A) an institution of higher education (as such term is defined in section 101 of the Higher Education Act of 1965) or a consortium of such institutions; or
``(B) an organization described in section 501(c)(3)
of the Internal Revenue Code of 1986 and exempt from tax
under section 501(a) of such Code. ``(2) The entity has experienced personnel and clinical and
other technical expertise in the biomedical sciences, which may include graduate training programs in areas relevant to priorities of the Critical Path Initiative.
``(3) The entity demonstrates to the Secretary's satisfaction that the entity is capable of--
``(A) developing and critically evaluating tools, methods, and processes--
``(i) to increase efficiency, predictability, and productivity of medical product development; and
``(ii) to more accurately identify the benefits and risks of new and existing medical products;
``(B) establishing partnerships, consortia, and collaborations with health care practitioners and other providers of health care goods or services;
pharmacists; pharmacy benefit managers and purchasers; health maintenance organizations and other managed health care organizations; health care insurers; government agencies; patients and consumers; manufacturers of prescription drugs, biological products, diagnostic technologies, and devices; and academic scientists; and
``(C) securing funding for the projects of a Critical Path Public-Private Partnership from Federal and nonfederal governmental sources, foundations, and private individuals.
``(c) Funding.--The Secretary may not enter into a collaborative agreement under subsection (a) unless the eligible entity involved provides an assurance that the entity will not accept funding for a Critical Path Public-Private Partnership project from any organization that manufactures or distributes products regulated by the Food and Drug Administration unless the entity provides assurances in its agreement with the Food and Drug Administration that the results of the Critical Path Public-Private Partnership project will not be influenced by any source of funding.
``(d) Annual Report.--Not later than 18 months after the date of the enactment of this section, and annually thereafter, the Secretary, in collaboration with the parties to each Critical Path Public-Private Partnership, shall submit a report to the Committee on Health, Education, Labor, and Pensions of the Senate and the Committee on Energy and Commerce of the House of Representatives--
``(1) reviewing the operations and activities of the Partnerships in the previous year; and
``(2) addressing such other issues relating to this section as the Secretary determines to be appropriate.
``(e) Definition.--In this section, the term `medical product' includes a drug, a biological product as defined in section 351 of the Public Health Service Act, a device, and any combination of such products.
``(f) Authorization of Appropriations.--To carry out this section, there are authorized to be appropriated $5,000,000 for fiscal
[[Page 121 STAT. 900]]
year 2008 and such sums as may be necessary for each of fiscal years 2009 through 2012.''.
TITLE VII--CONFLICTS OF INTEREST
SEC. 701. CONFLICTS OF INTEREST.
(a) In General.--Subchapter A of chapter VII of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 371 et seq.) is amended by inserting at the end the following: ``SEC. 712. <<NOTE: 21 USC 379d-1.>> CONFLICTS OF INTEREST.
``(a) Definitions.--For purposes of this section: ``(1) Advisory committee.--The term `advisory committee'
means an advisory committee under the Federal Advisory Committee
Act that provides advice or recommendations to the Secretary regarding activities of the Food and Drug Administration.
``(2) Financial interest.--The term `financial interest' means a financial interest under section 208(a) of title 18, United States Code.
``(b) Appointments to Advisory Committees.-- ``(1) Recruitment.--
``(A) In general.--The Secretary shall-- ``(i) develop and implement strategies on
effective outreach to potential members of advisory committees at universities, colleges, other academic research centers, professional and medical societies, and patient and consumer groups;
``(ii) seek input from professional medical and scientific societies to determine the most effective informational and recruitment activities; and
``(iii) take into account the advisory committees with the greatest number of vacancies.
``(B) Recruitment activities.--The recruitment activities under subparagraph (A) may include--
``(i) advertising the process for becoming an advisory committee member at medical and scientific society conferences;
``(ii) making widely available, including by using existing electronic communications
channels,
the contact information for the Food and Drug Administration point of contact regarding
advisory committee nominations; and
``(iii) developing a method through which an entity receiving funding from the National Institutes of Health, the Agency for Healthcare Research and Quality, the Centers for Disease Control and Prevention, or the Veterans Health Administration can identify a person who the Food and Drug Administration can contact regarding the nomination of individuals to serve on advisory committees.
``(2) Evaluation and criteria.--When considering a term appointment to an advisory committee, the Secretary shall
review the expertise of the individual and the financial disclosure report filed by the individual pursuant to the Ethics in Government Act of 1978 for each individual under consideration
[[Page 121 STAT. 901]]
for the appointment, so as to reduce the likelihood that an appointed individual will later require a written determination as referred to in section 208(b)(1) of title 18, United States Code, a written certification as referred to in section 208(b)(3) of title 18, United States Code, or a waiver as referred to in subsection (c)(2) of this section for service on the committee at a meeting of the committee.
``(c) Disclosures; Prohibitions on Participation; Waivers.-- ``(1) Disclosure of financial interest.--Prior to a meeting
of an advisory committee regarding a `particular matter' (as that term is used in section 208 of title 18, United States Code), each member of the committee who is a full-time Government employee or special Government employee shall disclose to the Secretary financial interests in accordance
with subsection (b) of such section 208.
``(2) Prohibitions and waivers on participation.-- ``(A) In general.--Except as provided under
subparagraph (B), a member of an advisory committee may not participate with respect to a particular matter considered in an advisory committee meeting if such member (or an immediate family member of such member) has a financial interest that could be affected by the advice given to the Secretary with respect to such matter, excluding interests exempted in regulations issued by the Director of the Office of Government Ethics as too remote or inconsequential to affect the integrity of the services of the Government officers or employees to which such regulations apply.
``(B) Waiver.--If the Secretary determines it necessary to afford the advisory committee essential expertise, the Secretary may grant a waiver of the prohibition in subparagraph (A) to permit a member described in such subparagraph to--
``(i) participate as a non-voting member with respect to a particular matter considered in a committee meeting; or
``(ii) participate as a voting member with respect to a particular matter considered in a committee meeting.
``(C) Limitation on waivers and other exceptions.-- ``(i) Definition.--For purposes of this
subparagraph, the term `exception' means each of the following with respect to members of advisory committees:
``(I) A waiver under section 505(n)(4) (as in effect on the day before the date of the enactment of the Food and Drug Administration Amendments Act of 2007).
``(II) A written determination under
section 208(b) of title 18, United States Code.
``(III) A written certification under section 208(b)(3) of such title.
``(ii) Determination of total number of members slots and member exceptions during fiscal year 2007.--The Secretary shall determine--
``(I)(aa) for each meeting held by any advisory committee during fiscal year 2007, the number of members who participated in the meeting; and
[[Page 121 STAT. 902]]
``(bb) the sum of the respective numbers determined under item (aa) (referred to in this subparagraph as
the ``total number of 2007 meeting
slots''); and
``(II)(aa) for each meeting held by any advisory committee during fiscal year 2007, the number of members who received an exception for the meeting; and
``(bb) the sum of the respective numbers determined under item (aa) (referred to in this subparagraph as
the ``total number of 2007 meeting exceptions'').
``(iii) Determination of percentage regarding exceptions during fiscal year 2007.--The
Secretary shall determine the percentage constituted by--
``(I) the total number of 2007 meeting exceptions; divided by
``(II) the total number of 2007
meeting slots. ``(iv) Limitation for fiscal years 2008
through 2012.--The number of exceptions at the Food and Drug Administration for members of advisory committees for a fiscal year may not exceed the following:
``(I) For fiscal year 2008, 95 percent of the percentage determined under clause (iii) (referred to in this clause as the ``base percentage'').
``(II) For fiscal year 2009, 90 percent of the base percentage.
``(III) For fiscal year 2010, 85 percent of the base percentage.
``(IV) For fiscal year 2011, 80 percent of the base percentage.
``(V) For fiscal year 2012, 75 percent of the base percentage.
``(v) Allocation of exceptions.--The exceptions authorized under clause (iv) for a fiscal year may be allocated within the centers
or other organizational units of the Food and Drug Administration as determined appropriate by the Secretary.
``(3) Disclosure of <<NOTE: Applicability. Website.>> waiver.--Notwithstanding section 107(a)(2) of the Ethics in Government Act (5 U.S.C. App.), the following shall apply:
``(A) 15 or more days in advance.--As soon as practicable, but (except as provided in subparagraph (B)) not later than 15 days prior to a meeting of an advisory committee to which a written determination as referred to in section 208(b)(1) of title 18, United States Code, a written certification as referred to in section 208(b)(3) of title 18, United States Code, or a waiver as referred to in paragraph (2)(B) applies, the Secretary shall disclose (other than information exempted from disclosure under section 552 of title 5, United States Code, and section 552a of title 5, United States Code (popularly known as the Freedom of Information Act and the Privacy Act of 1974, respectively)) on the Internet Web site of the Food and Drug Administration--
``(i) the type, nature, and magnitude of the financial interests of the advisory committee member to
[[Page 121 STAT. 903]]
which such determination, certification, or waiver
applies; and ``(ii) the reasons of the Secretary for such
determination, certification, or waiver. ``(B) Less than 30 days in advance.--In the case of
a financial interest that becomes known to the Secretary
less than 30 days prior to a meeting of an advisory committee to which a written determination as referred to in section 208(b)(1) of title 18, United States
Code, a written certification as referred to in section 208(b)(3) of title 18, United States Code, or a waiver as referred to in paragraph (2)(B) applies, the Secretary shall disclose (other than information exempted from disclosure under section 552 of title 5, United States Code, and section 552a of title 5, United States Code) on the Internet Web site of the Food and Drug Administration, the information described in clauses (i) and (ii) of subparagraph (A) as soon as practicable after the Secretary makes such determination, certification, or waiver, but in no case later than the date of such meeting.
``(d) Public Record.--The Secretary shall ensure that the public record and transcript of each meeting of an advisory committee includes the disclosure required under subsection (c)(3) (other than information exempted from disclosure under section 552 of title 5, United States Code, and section 552a of title 5, United States Code).
``(e) Annual Report.--Not later than February 1 of each year, the Secretary shall submit to the Committee on Appropriations and the Committee on Health, Education, Labor, and Pensions of the Senate, and the Committee on Appropriations and the Committee on Energy and Commerce of the House of Representatives a report that describes--
``(1) with respect to the fiscal year that ended on September 30 of the previous year, the number of vacancies on each advisory committee, the number of nominees received for each committee, and the number of such nominees willing to serve;
``(2) with respect to such year, the aggregate number of disclosures required under subsection (c)(3) for each meeting
of each advisory committee and the percentage of individuals to whom such disclosures did not apply who served on such
committee for each such meeting;
``(3) with respect to such year, the number of times the disclosures required under subsection (c)(3) occurred under subparagraph (B) of such subsection; and
``(4) how the Secretary plans to reduce the number of vacancies reported under paragraph (1) during the fiscal year following such year, and mechanisms to encourage the nomination of individuals for service on an advisory committee, including those who are classified by the Food and Drug Administration as academicians or practitioners.
``(f) Periodic Review of Guidance.--Not less than once every 5 years, the Secretary shall review guidance of the Food and Drug Administration regarding conflict of interest waiver determinations with
respect to advisory committees and update such guidance as necessary.''.
(b) Conforming Amendments.--Section 505(n) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355(n)) is amended by--
[[Page 121 STAT. 904]]
(1) striking paragraph (4); and (2) redesignating paragraphs (5), (6), (7), and (8) as
paragraphs (4), (5), (6), and (7), respectively.
(c) Effective <<NOTE: 21 USC 355 note.>> Date.--The amendments made by this section shall take effect on October 1, 2007.
TITLE VIII--CLINICAL TRIAL DATABASES
SEC. 801. EXPANDED CLINICAL TRIAL REGISTRY DATA BANK.
(a) In General.--Section 402 of the Public Health Service Act (42 U.S.C. 282) is amended by--
(1) redesignating subsections (j) and (k) as subsections (k)
and (l), respectively; and (2) inserting after subsection (i) the following:
``(j) Expanded Clinical Trial Registry Data Bank.-- ``(1) Definitions; requirement.--
``(A) Definitions.--In this subsection: ``(i) Applicable clinical trial.--The term
`applicable clinical trial' means an applicable device clinical trial or an applicable drug clinical trial.
``(ii) Applicable device clinical trial.--The term `applicable device clinical trial' means--
``(I) a prospective clinical study of health outcomes comparing an intervention with a device subject to section 510(k), 515, or 520(m) of the Federal Food, Drug, and Cosmetic Act against a control in human subjects (other than a small clinical trial to determine the feasibility of a device, or a clinical trial to test prototype devices where the primary outcome measure relates to feasibility and not to health outcomes); and
``(II) a pediatric postmarket surveillance as required under section 522 of the Federal Food, Drug, and Cosmetic Act.
``(iii) Applicable drug clinical trial.-- ``(I) In general.--The term
`applicable drug clinical trial' means a
controlled clinical investigation, other
than a phase I clinical investigation,
of a drug subject to section 505 of the Federal Food, Drug, and Cosmetic Act or to section 351 of this Act.
``(II) Clinical investigation.--For purposes of subclause (I), the term `clinical investigation' has the
meaning given that term in section 312.3 of title 21, Code of Federal Regulations (or any successor regulation).
``(III) Phase i.--For purposes of subclause (I), the term `phase I' has the meaning given that term in section 312.21 of title 21, Code of Federal Regulations (or any successor regulation).
``(iv) Clinical trial information.--The term `clinical trial information' means, with respect to an applicable clinical trial, those data elements that the responsible party is required
to submit under paragraph (2) or under paragraph
(3).
[[Page 121 STAT. 905]]
``(v) Completion date.--The term `completion date' means, with respect to an applicable clinical trial, the date that the final subject was examined or received an intervention for the purposes of final collection of data for the primary outcome, whether the clinical trial concluded according to the prespecified protocol or was terminated.
``(vi) Device.--The term `device' means a device as defined in section 201(h) of the
Federal Food, Drug, and Cosmetic Act.
``(vii) Drug.--The term `drug' means a drug as
defined in section 201(g) of the Federal Food, Drug, and Cosmetic Act or a biological product as defined in section 351 of this Act.
``(viii) Ongoing.--The term `ongoing' means, with respect to a clinical trial of a drug or a device and to a date, that--
``(I) 1 or more patients is enrolled
in the clinical trial; and ``(II) the date is before the
completion date of the clinical trial. ``(ix) Responsible party.--The term
`responsible party', with respect to a clinical trial of a drug or device, means--
``(I) the sponsor of the clinical trial (as defined in section 50.3 of title 21, Code of Federal Regulations
(or any successor regulation)); or ``(II) the principal investigator
of such clinical trial if so designated by a sponsor, grantee, contractor, or awardee, so long as the principal investigator is responsible for conducting the trial, has access to and control over the data from the clinical trial, has the right to publish the results of the trial, and has the ability to meet all of the requirements under this subsection for the
submission of clinical trial information.
``(B) Requirement.--The Secretary shall develop a mechanism by which the responsible party for each applicable clinical trial shall submit the identity and contact information of such responsible party to the Secretary at the time of submission of clinical trial information under paragraph (2).
``(2) Expansion of clinical trial registry data bank with respect to clinical trial information.--
``(A) In general.-- ``(i) Expansion of data bank.--To enhance
patient enrollment and provide a mechanism to track subsequent progress of clinical trials, the Secretary, acting through the Director of NIH, shall expand, in accordance with this subsection, the clinical trials registry of the data bank described under subsection (i)(1) (referred to in this subsection as the `registry data bank'). The <<NOTE: Public information. Internet.>> Director of NIH shall ensure that the registry data bank is made publicly available through the Internet.
[[Page 121 STAT. 906]]
``(ii) Content.--The clinical trial information required to be submitted under this paragraph for an applicable clinical trial shall include--
``(I) descriptive information, including--
``(aa) a brief title, intended for the lay public;
``(bb) a brief summary, intended for the lay public;
``(cc) the primary purpose; ``(dd) the study design; ``(ee) for an applicable
drug clinical trial, the study phase;
``(ff) study type; ``(gg) the primary disease
or condition being studied, or
the focus of the study; ``(hh) the intervention
name and intervention type;
``(ii) the study start date;
``(jj) the expected completion date;
``(kk) the target number of subjects; and
``(ll) outcomes, including primary and secondary outcome measures;
``(II) recruitment information, including--
``(aa) eligibility criteria;
``(bb) gender; ``(cc) age limits; ``(dd) whether the trial
accepts healthy volunteers; ``(ee) overall recruitment
status; ``(ff) individual site
status; and ``(gg) in the case of an
applicable drug clinical trial, if the drug is not approved under section 505 of the
Federal Food, Drug, and Cosmetic Act or licensed under section 351 of this Act, specify whether or
not there is expanded access to the drug under section 561 of the Federal Food, Drug, and
Cosmetic Act for those who do not
qualify for enrollment in the clinical trial and how to obtain information about such access;
``(III) location and contact information, including--
``(aa) the name of the sponsor;
``(bb) the responsible party, by official title; and
``(cc) the facility name and
facility contact information (including the city, State, and zip code for each clinical
trial location, or a toll-free number through which such location
information may be accessed); and
``(IV) administrative data (which the Secretary may make publicly available as necessary), including--
``(aa) the unique protocol identification number;
``(bb) other protocol identification numbers, if any; and
[[Page 121 STAT. 907]]
``(cc) the Food and Drug Administration IND/IDE protocol number and the record verification date.
``(iii) Modifications.--The Secretary may by regulation modify the requirements for clinical trial information under this paragraph, if the Secretary provides a rationale for why such a modification improves and does not reduce such clinical trial information.
``(B) Format and structure.-- ``(i) Searchable categories.--The Director of
NIH shall ensure that the public may, in addition to keyword searching, search the entries in the registry data bank by 1 or more of the following criteria:
``(I) The disease or condition being
studied in the clinical trial, using Medical Subject Headers (MeSH) descriptors.
``(II) The name of the intervention,
including any drug or device being studied in the clinical trial.
``(III) The location of the clinical
trial. ``(IV) The age group studied in the
clinical trial, including pediatric subpopulations.
``(V) The study phase of the clinical trial.
``(VI) The sponsor of the clinical trial, which may be the National Institutes of Health or another Federal agency, a private industry source, or a university or other organization.
``(VII) The recruitment status of the clinical trial.
``(VIII) The National Clinical Trial
number or other study identification for
the clinical trial. ``(ii)
Additional <<NOTE: Deadline.>> searchable category.--Not later than 18 months after the
date of the enactment of the Food and Drug Administration Amendments Act of 2007, the Director of NIH shall ensure that the public may search the entries of the registry data bank by the safety issue, if any, being studied in the clinical trial as a primary or secondary outcome.
``(iii) Other elements.--The Director of NIH shall also ensure that the public may search the entries of the registry data bank by such other elements as the Director deems necessary on an ongoing basis.
``(iv) Format.--The Director of the NIH shall ensure that the registry data bank is easily used by the public, and that entries are easily compared.
``(C) Data <<NOTE: Deadlines.>> submission.--The responsible party for an applicable clinical trial, including an applicable drug clinical trial for a serious or life-threatening disease or condition, that is initiated after, or is ongoing on the date that is
90 days after, the date of the enactment of the Food and Drug Administration Amendments Act of 2007, shall
submit to the Director of NIH for inclusion in the registry data bank the clinical trial information described in
of subparagraph (A)(ii) not later than the later of--
``(i) 90 days after such date of enactment; ``(ii) 21 days after the first patient is
enrolled in such clinical trial; or
[[Page 121 STAT. 908]]
``(iii) in the case of a clinical trial that is not for a serious or life-threatening disease or condition and that is ongoing on such date of enactment, 1 year after such date of enactment.
``(D) Posting <<NOTE: Deadlines.>> of data.-- ``(i) Applicable drug clinical trial.--The
Director of NIH shall ensure that clinical trial information for an applicable drug clinical trial submitted in accordance with this paragraph is posted in the registry data bank not later than
30 days after such submission.
``(ii) Applicable device clinical trial.--The Director of NIH shall ensure that clinical trial information for an applicable device clinical trial submitted in accordance with this paragraph is posted publicly in the registry data bank--
``(I) not earlier than the date of
clearance under section 510(k) of the Federal Food, Drug, and Cosmetic Act,
or approval under section 515 or 520(m) of such Act, as applicable, for a device that was not previously cleared or approved, and not later than 30 days after such date; or
``(II) for a device that was previously cleared or approved, not later than 30 days after the clinical trial information under paragraph
(3)(C) is required to be posted by the Secretary.
``(3) Expansion of registry data bank to include results of clinical trials.--
``(A) Linking registry data bank to existing results.--
``(i) In <<NOTE: Deadlines.>> general.-- Beginning not later than 90 days after the date
of the enactment of the Food and Drug Administration Amendments Act of 2007, for those clinical trials that form the primary basis of an efficacy claim or are conducted after the drug involved is approved or after the device involved is cleared or approved, the Secretary shall ensure that the registry data bank includes links to results information as described in clause (ii) for such clinical trial--
``(I) not earlier than 30 days after
the date of the approval of the drug involved or clearance or approval of
the device involved; or
``(II) not later than 30 days after the results information described in clause (ii) becomes publicly available.
``(ii) Required information.-- ``(I) FDA information.--The
Secretary shall ensure that the registry
data bank includes links to the following information:
``(aa) If an advisory committee considered at a meeting an applicable clinical trial, any posted Food and Drug Administration summary document regarding such applicable clinical trial.
``(bb) If an applicable drug
clinical trial was conducted under section 505A or 505B of
the Federal Food, Drug, and Cosmetic Act,
[[Page 121 STAT. 909]]
a link to the posted Food and Drug Administration assessment of the results of such trial.
``(cc) Food and Drug Administration public health advisories regarding the drug
or device that is the subject of the applicable clinical trial, if any.
``(dd) For an applicable drug clinical trial, the Food and Drug Administration action package for approval document required under section
505(l)(2) of the Federal Food, Drug, and Cosmetic Act.
``(ee) For an applicable device clinical trial, in the case of a premarket application under section 515 of the
Federal Food, Drug, and Cosmetic Act, the detailed summary of information respecting the safety and effectiveness of the device required under section 520(h)(1) of such Act, or, in the case of a report under section 510(k) of such Act, the section 510(k) summary of the safety and effectiveness data required under section
807.95(d) of title 21, Code of Federal Regulations (or any successor regulation).
``(II) NIH information.--The Secretary shall ensure that the
registry data bank includes links to the following information:
``(aa) Medline citations to any publications focused on the results of an applicable clinical trial.
``(bb) The entry for the drug that is the subject of an applicable drug clinical trial in the National Library of Medicine database of structured
product labels, if available. ``(iii) Results for existing data bank
entries.--The Secretary may include the links described in clause (ii) for data bank entries
for clinical trials submitted to the data bank prior to enactment of the Food and Drug Administration Amendments Act of 2007, as available.
``(B) Inclusion of results.--The Secretary, acting through the Director of NIH, shall--
``(i) expand the registry data bank to include
the results of applicable clinical trials (referred to in this subsection as the `registry and results data bank');
``(ii) <<NOTE: Public information. Internet.>> ensure that such results are made publicly available through the Internet;
``(iii) post publicly a glossary for the lay public explaining technical terms related to the results of clinical trials; and
``(iv) in consultation with experts on risk communication, provide information with the information included under subparagraph (C) in
the registry and results data bank to help ensure
that such information does not mislead the patients or the public.
``(C) Basic <<NOTE: Deadline.>> results.--Not later than 1 year after the date of the enactment of the Food and Drug Administration Amendments Act of 2007, the Secretary shall include in
[[Page 121 STAT. 910]]
the registry and results data bank the following elements for drugs that are approved under section 505 of the Federal Food, Drug, and Cosmetic Act or licensed under section 351 of this Act and devices that are cleared under section 510(k) of the Federal Food, Drug, and Cosmetic Act or approved under section 515 or
520(m) of such Act:
``(i) Demographic and baseline characteristics
of patient sample.--A table of the demographic and
baseline data collected overall and for each arm of the clinical trial to describe the patients
who participated in the clinical trial, including the number of patients who dropped out of the
clinical trial and the number of patients excluded from
the analysis, if any.
``(ii) Primary and secondary outcomes.--The primary and secondary outcome measures as submitted under paragraph (2)(A)(ii)(I)(ll), and
a table of values for each of the primary and secondary outcome measures for each arm of the clinical trial, including the results of scientifically appropriate tests of the statistical significance of such outcome
measures. ``(iii) Point of contact.--A point of contact
for scientific information about the clinical trial results.
``(iv) Certain agreements.--Whether there exists an agreement (other than an agreement solely to comply with applicable provisions of
law protecting the privacy of participants) between the sponsor or its agent and the principal investigator (unless the sponsor is an employer
of the principal investigator) that restricts in any manner the ability of the principal investigator, after the completion date of the trial, to
discuss the results of the trial at a scientific meeting or any other public or private forum, or to publish in a scientific or academic journal information concerning the results of the trial.
``(D) Expanded registry and results data bank.-- ``(i) Expansion
by <<NOTE: Deadline.>> rulemaking.--To provide more complete results information and to enhance patient access to and understanding of the
results of clinical trials, not later than 3 years after the date of the enactment of the Food and Drug Administration Amendments Act of 2007, the Secretary shall by regulation expand the registry and results data bank as provided under this subparagraph.
``(ii) Clinical trials.-- ``(I) Approved products.--The
regulations under this subparagraph shall require the inclusion of the results information described in clause (iii) for--
``(aa) each applicable drug clinical trial for a drug that is approved under section 505
of the Federal Food, Drug, and Cosmetic Act or licensed under section 351 of this Act; and
``(bb) each applicable device clinical trial for a device that is cleared under
section 510(k) of the Federal Food, Drug, and Cosmetic Act or approved under section 515 or 520(m) of such Act.
[[Page 121 STAT. 911]]
``(II) Unapproved products.--The regulations under this subparagraph shall establish whether or not the results information described in clause (iii) shall be required for--
``(aa) an applicable drug clinical trial for a drug that is not approved under section 505 of the Federal Food, Drug, and Cosmetic Act and not licensed under section 351 of this Act (whether approval or licensure was sought or not); and
``(bb) an applicable device clinical trial for a device
that is not cleared under section 510(k) of the Federal Food, Drug, and Cosmetic Act and not approved under section 515 or section 520(m) of such Act (whether clearance or approval was sought or not).
``(iii) Required elements.--The regulations under this subparagraph shall require, in
addition to the elements described in subparagraph (C), information within each of the following categories:
``(I) A summary of the clinical trial and its results that is written
in non-technical, understandable language for patients, if the Secretary determines that such types of summary can be included without being
misleading or promotional.
``(II) A summary of the clinical trial and its results that is technical in nature, if the Secretary determines that such types of summary can be included without being misleading or promotional.
``(III) The full protocol or such information on the protocol for the trial as may be necessary to help to evaluate the results of the trial.
``(IV) Such other categories as the
Secretary determines appropriate. ``(iv)
Results <<NOTE: Regulations.>> submission.--The results information described in clause (iii) shall be submitted to the Director of NIH for inclusion in the registry and results data bank
as provided by subparagraph (E), except that the Secretary shall by regulation determine--
``(I) whether the 1-year period for submission of clinical trial
information described in subparagraph (E)(i) should be increased from 1 year to a period
not to exceed 18 months;
``(II) whether the clinical trial information described in clause (iii) should be required to be submitted for an applicable clinical trial for which the clinical trial information
described in subparagraph (C) is submitted to the registry and results data bank before the effective date of the regulations issued under this subparagraph; and
``(III) in the case when the clinical trial information described in clause (iii) is required to be
submitted for the applicable clinical trials described in clause (ii)(II), the date by which such clinical trial
information shall be required to be submitted, taking into account--
[[Page 121 STAT. 912]]
``(aa) the certification process under subparagraph (E)(iii) when approval, licensure, or clearance is sought; and
``(bb) whether there should be a delay of submission when approval, licensure, or clearance will not be sought.
``(v) Additional provisions.--The regulations under this subparagraph shall also establish--
``(I) a standard format for the submission of clinical trial
information under this paragraph to the registry
and results data bank;
``(II) additional information on
clinical trials and results that is written in nontechnical, understandable language for patients;
``(III) <<NOTE: Procedures.>> considering
the experience under the pilot quality control project described in paragraph (5)(C), procedures for quality control, including using representative samples, with respect to completeness and
content of clinical trial information under
this subsection, to help ensure that data elements are not false or misleading
and are non-promotional;
``(IV) the appropriate timing and requirements for updates of clinical trial information, and whether and, if so, how such updates should be tracked;
``(V) a statement to accompany the entry for an applicable clinical trial when the primary and secondary outcome measures for such clinical trial are submitted under paragraph (4)(A) after the date specified for the submission
of such information in paragraph (2)(C); and
``(VI) additions or modifications to
the manner of reporting of the data elements established under subparagraph (C).
``(vi) Consideration of world health organization data set.--The Secretary shall consider the status of the consensus data
elements set for reporting clinical trial results of the World Health Organization when issuing the regulations under this subparagraph.
``(vii) Public <<NOTE: Deadline.>> meeting.-- The Secretary shall hold a public meeting no
later than 18 months after the date of the enactment of the Food and Drug Administration Amendments Act
of 2007 to provide an opportunity for input from interested parties with regard to the regulations to be issued under this subparagraph.
``(E) Submission of results information.-- ``(i) In <<NOTE: Deadline.>> general.--Except
as provided in clauses (iii), (iv), (v), and (vi) the responsible party for an applicable clinical trial that is described in clause (ii) shall
submit to the Director of NIH for inclusion in the
registry and results data bank the clinical trial information described in subparagraph (C) not later than 1 year, or such other period as may be provided by regulation under subparagraph (D), after the earlier of--
[[Page 121 STAT. 913]]
``(I) the estimated completion date of the trial as described in paragraph (2)(A)(ii)(I)(jj)); or
``(II) the actual date of completion.
``(ii) Clinical trials described.--An applicable clinical trial described in this
clause is an applicable clinical trial subject to--
``(I) paragraph (2)(C); and ``(II)(aa) subparagraph (C); or ``(bb) the regulations issued under
subparagraph (D). ``(iii) Delayed submission of results with
certification.--If the responsible party for an applicable clinical trial submits a certification that clause (iv) or (v) applies to such clinical trial, the responsible party shall submit to the Director of NIH for inclusion in the registry and results data bank the clinical trial information described in subparagraphs (C) and (D) as
required under the applicable clause.
``(iv) Seeking <<NOTE: Deadline.>> initial approval of a drug or device.--With respect to an applicable clinical trial that is completed
before the drug is initially approved under section 505 of the Federal Food, Drug, and Cosmetic Act or initially licensed under section 351 of this Act, or the device is initially cleared under section 510(k) or initially approved under section 515 or 520(m) of the Federal Food, Drug, and Cosmetic Act, the responsible party shall submit to the Director of NIH for inclusion in the registry and results data bank the clinical trial information described in subparagraphs (C) and (D) not later than 30 days after the drug or device is approved under such section 505, licensed under such section 351, cleared under such section 510(k),
or approved under such section 515 or 520(m), as applicable.
``(v) Seeking approval of a new use for the drug or device.--
``(I) In <<NOTE: Deadlines.>> general.--With
respect to an applicable clinical trial where the manufacturer of the drug or device is the sponsor of an applicable clinical trial, and such manufacturer has filed, or will file within 1 year, an application seeking approval under section 505 of the Federal Food, Drug, and Cosmetic Act, licensing under section 351 of this Act, or clearance under section 510(k), or approval under section 515 or 520(m), of the Federal Food, Drug, and Cosmetic Act for the
use studied in such clinical trial (which use is not included in the labeling of the approved drug or device), then the responsible party shall submit to the Director of NIH for inclusion in the registry and results data bank the clinical trial information described in subparagraphs (C) and (D) on the
earlier of the date that is 30 days after the date--
``(aa) the new use of the drug or device is approved
under such section 505, licensed
under such section 351, cleared under such
[[Page 121 STAT. 914]]
section 510(k), or approved under such section 515 or 520(m);
``(bb) the Secretary issues a letter, such as a complete response letter, not approving the submission or not clearing the submission, a not
approvable letter, or a not substantially equivalent letter for the new use of the drug or device under such section 505, 351, 510(k), 515, or 520(m); or
``(cc) except as provided in
subclause (III), the application
or premarket notification under such section 505, 351, 510(k), 515, or 520(m) is withdrawn without resubmission for no
less
than 210 days. ``(II) Requirement that each
clinical trial in application be treated
the same.--If a manufacturer makes a certification under clause (iii) that this clause applies with respect to a clinical trial, the manufacturer shall make such a certification with respect to each applicable clinical trial that is required to be submitted in an application or report for licensure, approval, or clearance (under section 351 of this Act or section 505, 510(k), 515, or 520(m) of the Federal Food, Drug, and Cosmetic Act, as applicable) of the use studied in the clinical trial.
``(III) Two-year limitation.--The responsible party shall submit to the Director of NIH for inclusion in the registry and results data bank the clinical trial information subject to subclause (I) on the date that is 2 years after the date a certification under clause (iii) was made to the Director of NIH, if an action referred to in item (aa), (bb), or (cc) of subclause (I) has not occurred by such date.
``(vi) Extensions.--The Director of NIH may provide an extension of the deadline for submission of clinical trial information under clause (i) if the responsible party for the trial submits to the Director a written request that demonstrates good cause for the extension and provides an estimate of the date on which the information will be submitted. The Director of
NIH may grant more than one such extension for a clinical trial.
``(F) Notice to <<NOTE: Deadline.>> director of nih.--The Commissioner of Food and Drugs shall notify the Director of NIH when there is an action described
in subparagraph (E)(iv) or item (aa), (bb), or (cc) of subparagraph (E)(v)(I) with respect to an application
or a report that includes a certification required under paragraph (5)(B) of such action not later than 30 days after such action.
``(G) Posting of <<NOTE: Public information. Deadline.>> data.--The Director of NIH shall ensure that the clinical trial information described in subparagraphs (C) and (D) for an
applicable clinical trial submitted in accordance with this
paragraph is posted publicly in the registry and results
database not later than 30 days after such submission.
[[Page 121 STAT. 915]]
``(H) Waivers regarding certain clinical trial results.--The Secretary may waive any applicable requirements of this paragraph for an applicable clinical trial, upon a written request from the responsible party, if the Secretary determines that extraordinary circumstances justify the waiver and that providing the waiver is consistent with the protection of public health, or in the interest of national security. <<NOTE: Deadline. Notification.>> Not later than 30 days after any part of a waiver is granted, the Secretary shall notify, in writing, the appropriate committees of Congress of the waiver and provide an explanation for why the waiver was granted.
``(I) Adverse events.-- ``(i) Regulations.--
Not <<NOTE: Deadline.>> later than 18 months after
the date of the enactment of the Food and Drug Administration Amendments Act of 2007, the Secretary shall by regulation determine the best method for including in the registry and results data bank appropriate results information on serious adverse and frequent adverse events for drugs described in subparagraph (C) in a manner and form that is useful and not misleading to patients, physicians, and scientists.
``(ii) Default.--If the <<NOTE: Effective date.>> Secretary fails to issue the regulation required by clause (i) by the date that is 24 months after the date of the enactment of the
Food and Drug Administration Amendments Act of 2007, clause (iii) shall take effect.
``(iii) Additional elements.--Upon the application of clause (ii), the Secretary shall include in the registry and results data bank for drugs described in subparagraph (C), in addition to the clinical trial information described in subparagraph (C), the following elements:
``(I) Serious adverse events.--A table of anticipated and unanticipated serious adverse events grouped by organ system, with number and frequency of such event in each arm of the clinical trial.
``(II) Frequent adverse events.--A table of anticipated and unanticipated adverse events that are not included in the table described in subclause (I) that exceed a frequency of 5 percent within any arm of the clinical trial,
grouped by organ system, with number and
frequency of such event in each arm of the clinical trial.
``(iv) Posting of other information.--In carrying out clause (iii), the Secretary shall,
in consultation with experts in risk communication, post with the tables information to enhance patient understanding and to ensure such tables
do not mislead patients or the lay public.
``(v) Relation to subparagraph (c).--Clinical trial information included in the registry and results data bank pursuant to this subparagraph
is deemed to be clinical trial information included in such data bank pursuant to subparagraph (C).
``(4) Additional submissions of clinical trial information.--
[[Page 121 STAT. 916]]
``(A) Voluntary submissions.--A responsible party for a clinical trial that is not an applicable clinical trial, or that is an applicable clinical trial that is not subject to paragraph (2)(C), may submit complete clinical trial information described in paragraph (2)
or paragraph (3) provided the responsible party submits clinical trial information for each applicable clinical trial that is required to be submitted under section
351 or under section 505, 510(k), 515, or 520(m) of the Federal Food, Drug, and Cosmetic Act in an application or report for licensure, approval, or clearance of the drug or device for the use studied in the clinical trial.
``(B) Required submissions.-- ``(i) In general.--Notwithstanding paragraphs
(2) and (3) and subparagraph (A), in any case in which the Secretary determines for a specific clinical trial described in clause (ii) that posting in the registry and results data bank of clinical trial information for such clinical
trial is necessary to protect the public health--
``(I) the Secretary may require by notification that such information be submitted to the Secretary in
accordance with paragraphs (2) and (3) except with regard to timing of submission;
``(II) <<NOTE: Deadline.>> unless the responsible party submits a certification under paragraph (3)(E)(iii), such information shall be
submitted not later than 30 days after the date specified by the Secretary in the notification; and
``(III) failure to comply with the requirements under subclauses (I) and (II) shall be treated as a violation of the corresponding requirement of such paragraphs.
``(ii) Clinical trials described.--A clinical trial described in this clause is--
``(I) an applicable clinical trial for a drug that is approved under section 505 of the Federal Food, Drug, and Cosmetic Act or licensed under section 351 of this Act or for a device that is cleared under section 510(k) of the Federal Food, Drug, and Cosmetic
Act or approved under section 515 or
section 520(m) of such Act, whose completion date is on or after the date 10 years before the date of the enactment of the Food and Drug Administration Amendments Act of 2007; or
``(II) an applicable clinical trial that is described by both by paragraph (2)(C) and paragraph (3)(D)(ii)(II)).
``(C) Updates to clinical trial data bank.-- ``(i) Submission
of <<NOTE: Deadlines.>> updates.--The responsible party for an applicable clinical trial shall submit to the Director of NIH for inclusion in
the registry and results data bank updates to reflect changes to the clinical trial information submitted under paragraph (2). Such updates--
``(I) shall be provided not less than once every 12 months, unless there were no changes to the
[[Page 121 STAT. 917]]
clinical trial information during the preceding 12-month period;
``(II) shall include identification of the dates of any such changes;
``(III) not later than 30 days after
the recruitment status of such clinical trial changes, shall include an update of the recruitment status; and
``(IV) not later than 30 days after the completion date of the clinical trial, shall include notification to
the Director that such clinical trial is
complete. ``(ii) Public availability of updates.--The
Director of NIH shall make updates submitted under
clause (i) publicly available in the registry data
bank. Except with regard to overall recruitment status, individual site status, location, and contact information, the Director of NIH shall ensure that updates to elements required under subclauses (I) to (V) of paragraph (2)(A)(ii) do not result in the removal of any information from the original submissions or any preceding
updates, and information in such databases is presented in a manner that enables users to readily access
each original element submission and to track the changes made by the updates. The Director of NIH shall provide a link from the table of primary
and secondary outcomes required under paragraph (3)(C)(ii) to the tracked history required under this clause of the primary and secondary outcome measures submitted under paragraph (2)(A)(ii)(I)(ll).
``(5) Coordination and compliance.-- ``(A) Clinical trials supported by grants from
federal agencies.-- ``(i) Grants
from <<NOTE: Certification.>> certain federal agencies.--If an applicable clinical trial is funded in whole or in part by a grant from any agency of the Department of Health and Human Services, including the Food and Drug Administration, the National Institutes of
Health, or the Agency for Healthcare Research and
Quality, any grant or progress report forms required under such grant shall include a certification that the responsible party has made all required submissions to the Director of NIH under paragraphs (2) and (3).
``(ii) Verification by federal agencies.--The heads of the agencies referred to in clause (i), as applicable, shall verify that the clinical trial information for each applicable clinical trial for which a grantee is the responsible
party has been submitted under paragraphs (2) and (3) before releasing any remaining funding for a
grant or funding for a future grant to such grantee.
``(iii) Notice and <<NOTE: Deadline.>> opportunity to remedy.--
If
the head of an agency referred to in clause (i), as applicable, verifies that a grantee has not submitted clinical trial information as described in clause (ii), such agency head shall provide notice to such grantee of such non-compliance and allow such grantee 30 days
[[Page 121 STAT. 918]]
to correct such non-compliance and submit the required clinical trial information.
``(iv) Consultation with other federal agencies.--The Secretary shall--
``(I) consult with other agencies that conduct research involving human subjects in accordance with any section of part 46 of title 45, Code of Federal Regulations (or any successor regulations), to determine if any such research is an applicable clinical trial; and
``(II) <<NOTE: Procedures.>> develop
with such agencies procedures comparable
to those described in clauses (i), (ii),
and (iii) to ensure that clinical trial information for such applicable
clinical trial is submitted under paragraphs (2) and (3).
``(B) Certification to accompany drug, biological product, and device submissions.--At the time of submission of an application under section 505 of the Federal Food, Drug, and Cosmetic Act, section 515 of such Act, section 520(m) of such Act, or section 351 of this Act, or submission of a report under section
510(k) of such Act, such application or submission shall be accompanied by a certification that all applicable requirements of this subsection have been met. Where available, such certification shall include the appropriate National Clinical Trial control numbers.
``(C) Quality control.-- ``(i) Pilot quality control project.--Until
the effective date of the regulations issued under
paragraph (3)(D), the Secretary, acting through the Director of NIH and the Commissioner of Food and Drugs, shall conduct a pilot project to determine the optimal method of verification to help to ensure that the clinical trial
information submitted under paragraph (3)(C) is non- promotional and is not false or misleading in any particular under subparagraph (D). The Secretary
shall use the publicly available information described in paragraph (3)(A) and any other information available to the Secretary about applicable clinical trials to verify the accuracy of the clinical trial information submitted under paragraph (3)(C).
``(ii) Notice of <<NOTE: Deadline.>> compliance.--If the Secretary determines that any clinical trial information was not submitted as required under this subsection, or was submitted but is false or misleading in any particular, the Secretary shall notify the responsible party and give such party an opportunity to remedy such noncompliance by submitting the required revised clinical trial information not later than 30 days after such notification.
``(D) Truthful clinical trial information.-- ``(i) In general.--The clinical trial
information submitted by a responsible party under
this subsection shall not be false or misleading in any particular.
``(ii) Effect.--Clause (i) shall not have the effect of--
[[Page 121 STAT. 919]]
``(I) requiring clinical trial information with respect to an applicable clinical trial to include information from any source other than such clinical trial involved; or
``(II) requiring clinical trial information described in paragraph (3)(D) to be submitted for purposes of paragraph (3)(C).
``(E) Public notices.-- ``(i) Notice of violations.--If the
responsible party for an applicable clinical trial
fails to submit clinical trial information for such clinical trial as required under paragraphs (2) or (3), the Director of NIH shall include in the registry and results data bank entry for such clinical trial a notice--
``(I) that the responsible party is not in compliance with this Act by--
``(aa) failing to submit required clinical trial information; or
``(bb) submitting false or misleading clinical trial information;
``(II) of the penalties imposed for the violation, if any; and
``(III) whether the responsible
party has corrected the clinical trial information in the registry and results data bank.
``(ii) Notice of failure to submit primary and
secondary outcomes.--If the responsible party for an applicable clinical trial fails to submit the primary and secondary outcomes as required under section 2(A)(ii)(I)(ll), the Director of NIH
shall include in the registry and results data bank entry for such clinical trial a notice that the responsible party is not in compliance by failing to register the primary and secondary outcomes in accordance with this act, and that the primary
and secondary outcomes were not publicly disclosed in the database before conducting the clinical
trial. ``(iii) Failure to submit statement.--The
notice under clause (i) for a violation described in clause (i)(I)(aa) shall include the following statement: `The entry for this clinical trial was not complete at the time of submission, as required by law. This may or may not have any bearing on the accuracy of the information in the entry.'.
``(iv) Submission of false information statement.--The notice under clause (i) for a violation described in clause (i)(I)(bb) shall include the following statement: `The entry for this clinical trial was found to be false or misleading and therefore not in compliance with the law.'.
``(v) Non-submission of statement.--The notice
under clause (ii) for a violation described in clause (ii) shall include the following
statement: `The entry for this clinical trial did not
contain information on the primary and secondary outcomes at the time of submission, as required by law. This may or may not
[[Page 121 STAT. 920]]
have any bearing on the accuracy of the information in the entry.'.
``(vi) Compliance searches.--The Director of NIH shall provide that the public may easily search the registry and results data bank for entries that include notices required under this subparagraph.
``(6) Limitation on disclosure of clinical trial information.--
``(A) In general.--Nothing in this subsection (or
under section 552 of title 5, United States Code) shall require the Secretary to publicly disclose, by any
means other than the registry and results data bank, information described in subparagraph (B).
``(B) Information described.--Information described in this subparagraph is--
``(i) information submitted to the Director of
NIH under this subsection, or information of the same general nature as (or integrally associated with) the information so submitted; and
``(ii) information not otherwise publicly available, including because it is protected from disclosure under section 552 of title 5, United States Code.
``(7) Authorization of appropriations.--There are authorized
to be appropriated to carry out this subsection $10,000,000 for each fiscal year.''.
(b) Conforming Amendments.-- (1) Prohibited acts.--Section 301 of the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. 331) is amended by adding at the
end the following:
``(jj)(1) The failure to submit the certification required by section 402(j)(5)(B) of the Public Health Service Act, or knowingly submitting a false certification under such section.
``(2) The failure to submit clinical trial information required under subsection (j) of section 402 of the Public Health Service Act.
``(3) The submission of clinical trial information under subsection (j) of section 402 of the Public Health Service Act that is false or misleading in any particular under paragraph (5)(D) of such subsection (j).''.
(2) Civil money penalties.--Subsection (f) of section 303 of
the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 333), as redesignated by section 226, is amended--
(A) by redesignating paragraphs (3), (4), and (5) as
paragraphs (5), (6), and (7), respectively; (B) by inserting after paragraph (2) the following:
``(3)(A) <<NOTE: Penalties.>> Any person who violates section 301(jj) shall be subject to a civil monetary penalty of not more than $10,000 for all violations adjudicated in a single proceeding.
``(B) <<NOTE: Deadline.>> If a violation of section 301(jj) is not corrected within the 30-day period following notification under section 402(j)(5)(C)(ii), the person shall, in addition to any penalty under subparagraph (A), be subject to a civil monetary penalty of not more than $10,000 for each day of the violation after such period until the violation is corrected.'';
(C) in paragraph (2)(C), by striking ``paragraph
(3)(A)'' and inserting ``paragraph (5)(A)'';
[[Page 121 STAT. 921]]
(D) in paragraph (5), as so redesignated, by striking ``paragraph (1) or (2)'' each place it appears and inserting ``paragraph (1), (2), or (3)'';
(E) in paragraph (6), as so redesignated, by striking ``paragraph (3)(A)'' and inserting ``paragraph (5)(A)''; and
(F) in paragraph (7), as so redesignated, by striking ``paragraph (4)'' each place it appears and inserting ``paragraph (6)''.
(3) New <<NOTE: Certification.>> drugs and devices.-- (A) Investigational new drugs.--Section 505(i) of
the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355(i)) is amended in paragraph (4), by adding at the end the following: ``The <<NOTE: Regulations.>> Secretary shall update
such regulations to require inclusion in the informed
consent documents and process a statement that clinical trial information for such clinical investigation has been or will be submitted for inclusion in the registry data bank pursuant to subsection (j) of section 402 of the Public Health Service Act.''.
(B) New drug applications.--Section 505(b) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355(b)) is amended by adding at the end the following:
``(6) An application submitted under this subsection shall be accompanied by the certification required under section 402(j)(5)(B) of the Public Health Service Act. Such certification shall not be considered an element of such application.''.
(C) Device reports under section 510(k).--Section 510(k) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360(k)) is amended by adding at the end the following:
``A notification submitted under this subsection that contains clinical trial data for an applicable device clinical trial (as defined in section 402(j)(1) of the Public Health Service Act) shall be accompanied by the certification required under section 402(j)(5)(B) of such Act. Such certification shall not be considered an element of such notification.''.
(D) Device premarket approval application.--Section 515(c)(1) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360e(c)(1)) is amended--
(i) in subparagraph (F), by striking ``; and''
and inserting a semicolon; (ii) by redesignating subparagraph (G) as
subparagraph (H); and (iii) by inserting after subparagraph (F) the
following:
``(G) the certification required under section 402(j)(5)(B) of the Public Health Service Act (which shall not be considered an element of such
application); and''.
(E) Humanitarian device exemption.--Section 520(m)(2) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360e(c)) <<NOTE: 21 USC 360j.>> is amended
in the first sentence in the matter following subparagraph (C), by inserting at the end before the period ``and such application shall include the certification required under section 402(j)(5)(B) of the Public
Health Service Act (which shall not be considered an element
of such application)''.
(c) Surveillances.--Not <<NOTE: Deadline. Guidance. 42 USC 282 note.>> later than 12 months after the date of the enactment of this Act, the Secretary of Health and Human
[[Page 121 STAT. 922]]
Services shall issue guidance on how the requirements of section 402(j) of the Public Health Service Act, as added by this section, apply to a pediatric postmarket surveillance described in paragraph (1)(A)(ii)(II) of such section 402(j) that is not a clinical trial.
(d) <<NOTE: 42 USC 282 note.>> Preemption.-- (1) In general.--Upon the expansion of the registry and
results data bank under section 402(j)(3)(D) of the Public Health Service Act, as added by this section, no State or political subdivision of a State may establish or continue in effect any requirement for the registration of clinical trials or for the inclusion of information relating to the results of clinical trials in a database.
(2) Rule of construction.--The fact of submission of clinical trial information, if submitted in compliance with subsection (j) of section 402 of the Public Health Service Act (as amended by this section), that relates to a use of a drug
or device not included in the official labeling of the approved drug or device shall not be construed by the Secretary of
Health and Human Services or in any administrative or judicial proceeding, as evidence of a new intended use of the drug or device that is different from the intended use of the drug or device set forth in the official labeling of the drug or
device. The availability of clinical trial information through the registry and results data bank under such subsection (j), if submitted in compliance with such subsection, shall not be considered as labeling, adulteration, or misbranding of the
drug or device under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.).
TITLE IX--ENHANCED AUTHORITIES REGARDING POSTMARKET SAFETY OF DRUGS
Subtitle A--Postmarket Studies and Surveillance
SEC. 901. POSTMARKET STUDIES AND CLINICAL TRIALS REGARDING HUMAN DRUGS; RISK EVALUATION AND MITIGATION STRATEGIES.
(a) In General.--Section 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355) is amended by adding at the end the following subsections:
``(o) Postmarket Studies and Clinical Trials; Labeling.-- ``(1) In general.--A responsible person may not introduce
or deliver for introduction into interstate commerce the new drug involved if the person is in violation of a requirement established under paragraph (3) or (4) with respect to the
drug. ``(2) Definitions.--For purposes of this subsection:
``(A) Responsible person.--The term `responsible person' means a person who--
``(i) has submitted to the Secretary a covered
application that is pending; or
[[Page 121 STAT. 923]]
``(ii) is the holder of an approved covered application.
``(B) Covered application.--The term `covered application' means--
``(i) an application under subsection (b) for a drug that is subject to section 503(b); and
``(ii) an application under section 351 of the
Public Health Service Act. ``(C) New safety information; serious risk.--The
terms `new safety information', `serious risk', and `signal of a serious risk' have the meanings given such terms in section 505-1(b).
``(3) Studies and clinical trials.-- ``(A) In general.--For any or all of the purposes
specified in subparagraph (B), the Secretary may, subject to subparagraph (D), require a responsible person for a drug to conduct a postapproval study or studies of the drug, or a postapproval clinical trial
or trials of the drug, on the basis of scientific data deemed appropriate by the Secretary, including information regarding chemically-related or pharmacologically-related drugs.
``(B) Purposes of study or clinical trial.--The purposes referred to in this subparagraph with respect to a postapproval study or postapproval clinical trial are the following:
``(i) To assess a known serious risk related to the use of the drug involved.
``(ii) To assess signals of serious risk related to the use of the drug.
``(iii) To identify an unexpected serious risk
when available data indicates the potential for a serious risk.
``(C) Establishment of requirement after approval of
covered application.--The Secretary may require a postapproval study or studies or postapproval clinical trial or trials for a drug for which an approved
covered application is in effect as of the date on which the Secretary seeks to establish such requirement only if the Secretary becomes aware of new safety information.
``(D) Determination by secretary.-- ``(i) Postapproval studies.--The Secretary
may not require the responsible person to conduct a study under this paragraph, unless the Secretary makes a determination that the reports under subsection (k)(1) and the active postmarket risk identification and analysis system as available under subsection (k)(3) will not be sufficient to meet the purposes set forth in subparagraph (B).
``(ii) Postapproval clinical trials.--The Secretary may not require the responsible person to conduct a clinical trial under this paragraph, unless the Secretary makes a determination that a postapproval study or studies will not be sufficient to meet the purposes set forth in subparagraph (B).
``(E) Notification; timetables; periodic reports.-- ``(i) Notification.--The Secretary shall
notify the responsible person regarding a requirement under this
[[Page 121 STAT. 924]]
paragraph to conduct a postapproval study or clinical trial by the target dates for communication of feedback from the review team to the responsible person regarding proposed
labeling and postmarketing study commitments as set forth in the letters described in section 101(c) of the Food and Drug Administration Amendments Act of 2007.
``(ii) Timetable; periodic reports.--For each study or clinical trial required to be conducted under this paragraph, the Secretary shall require that the responsible person submit a timetable
for completion of the study or clinical trial. With respect to each study required to be conducted
under this paragraph or otherwise undertaken by the responsible person to investigate a safety issue, the Secretary shall require the
responsible person to periodically report to the Secretary on the status of such study including whether any difficulties in completing the study have been encountered. With respect to each clinical trial required to be conducted under this paragraph or otherwise undertaken by the responsible person to investigate a safety issue, the Secretary shall require the responsible person to periodically report to the Secretary on the status of such clinical trial including whether enrollment has begun, the number of participants enrolled, the expected completion date, whether any
difficulties completing the clinical trial have been encountered, and registration information with respect to the requirements under section 402(j) of the Public Health Service Act. If the responsible person fails to comply with such timetable or violates any other requirement of this subparagraph, the responsible person shall
be considered in violation of this subsection,
unless the responsible person demonstrates good cause
for such noncompliance or such other violation. The Secretary shall determine what constitutes good cause under the preceding sentence.
``(F) Dispute resolution.--The responsible person may appeal a requirement to conduct a study or clinical trial under this paragraph using dispute resolution procedures established by the Secretary in regulation and guidance.
``(4) Safety <<NOTE: Deadlines.>> labeling changes requested
by secretary.-- ``(A) New <<NOTE: Notification.>> safety
information.--If the Secretary becomes aware of new safety information that the Secretary believes should
be included in the labeling of the drug, the Secretary shall promptly notify the responsible person or, if the same drug approved under section 505(b) is not
currently marketed, the holder of an approved application under 505(j).
``(B) Response to notification.--Following notification pursuant to subparagraph (A), the responsible person or the holder of the approved application under section 505(j) shall within 30 days--
``(i) submit a supplement proposing changes to
the approved labeling to reflect the new safety
information,
[[Page 121 STAT. 925]]
including changes to boxed warnings, contraindications, warnings, precautions, or adverse reactions; or
``(ii) <<NOTE: Notification.>> notify the Secretary that the responsible person or the holder of the approved application under section 505(j) does not believe a labeling change is warranted and submit a statement detailing the reasons why such a change is not warranted.
``(C) Review.--Upon receipt of such supplement, the Secretary shall promptly review and act upon such supplement. If the Secretary disagrees with the
proposed changes in the supplement or with the statement setting forth the reasons why no labeling change is necessary, the Secretary shall initiate discussions to reach agreement on whether the labeling for the drug should
be modified to reflect the new safety information, and if so, the contents of such labeling changes.
``(D) Discussions.--Such discussions shall not extend for more than 30 days after the response to the notification under subparagraph (B), unless the Secretary determines an extension of such discussion period is warranted.
``(E) Order.--Within 15 days of the conclusion of the discussions under subparagraph (D), the Secretary may issue an order directing the responsible person or the holder of the approved application under section 505(j) to make such a labeling change as the Secretary deems appropriate to address the new safety
information. Within 15 days of such an order, the responsible person or the holder of the approved application under section 505(j) shall submit a supplement containing the
labeling change.
``(F) Dispute resolution.--Within 5 days of receiving an order under subparagraph (E), the responsible person or the holder of the approved application under section 505(j) may appeal using dispute resolution procedures established by the Secretary in regulation and guidance.
``(G) Violation.--If the responsible person or the holder of the approved application under section 505(j) has not submitted a supplement within 15 days of the date of such order under subparagraph (E), and there is no appeal or dispute resolution proceeding pending, the responsible person or holder shall be considered to be in violation of this subsection. If at the conclusion
of any dispute resolution procedures the Secretary determines that a supplement must be submitted and such
a supplement is not submitted within 15 days of the date
of that determination, the responsible person or holder shall be in violation of this subsection.
``(H) Public health threat.--Notwithstanding subparagraphs (A) through (F), if the Secretary concludes that such a labeling change is necessary to protect the public health, the Secretary may accelerate the timelines in such subparagraphs.
``(I) Rule of construction.--This paragraph shall not be construed to affect the responsibility of the responsible person or the holder of the approved application under section 505(j) to maintain its label in accordance with existing requirements, including subpart B of part 201
[[Page 121 STAT. 926]]
and sections 314.70 and 601.12 of title 21, Code of Federal Regulations (or any successor regulations).
``(5) Non-delegation.--Determinations by the Secretary under
this subsection for a drug shall be made by individuals at or above the level of individuals empowered to approve a drug
(such as division directors within the Center for Drug Evaluation and Research).
``(p) Risk Evaluation and Mitigation Strategy.-- ``(1) In general.--A person may not introduce or deliver
for introduction into interstate commerce a new drug if--
``(A)(i) the application for such drug is approved under subsection (b) or (j) and is subject to section 503(b); or
``(ii) the application for such drug is approved under section 351 of the Public Health Service Act; and
``(B) a risk evaluation and mitigation strategy is required under section 505-1 with respect to the drug and the person fails to maintain compliance with the requirements of the approved strategy or with other requirements under section 505-1, including
requirements regarding assessments of approved strategies.
``(2) Certain postmarket studies.--The failure to conduct a postmarket study under section 506, subpart H of part 314, or subpart E of part 601 of title 21, Code of Federal Regulations (or any successor regulations), is deemed to be a violation of paragraph (1).''.
(b) Requirements Regarding Strategies.--Chapter V of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 351 et seq.) is amended by inserting after section 505 the following section: ``SEC. 505-1. <<NOTE: 21 USC 355-1.>> RISK EVALUATION AND
MITIGATION STRATEGIES.
``(a) Submission of Proposed Strategy.--
``(1) Initial approval.--If the Secretary, in consultation with the office responsible for reviewing the drug and the office responsible for postapproval safety with respect to the drug, determines that a risk evaluation and mitigation strategy is necessary to ensure that the benefits of the drug outweigh the risks of the drug, and informs the person who submits such application of such determination, then such person shall
submit to the Secretary as part of such application a proposed risk evaluation and mitigation strategy. In making such a determination, the Secretary shall consider the following factors:
``(A) The estimated size of the population likely to
use the drug involved. ``(B) The seriousness of the disease or condition
that is to be treated with the drug. ``(C) The expected benefit of the drug with respect
to such disease or condition. ``(D) The expected or actual duration of treatment
with the drug. ``(E) The seriousness of any known or potential
adverse events that may be related to the drug and the background incidence of such events in the population likely to use the drug.
``(F) Whether the drug is a new molecular entity. ``(2) Postapproval requirement.--
[[Page 121 STAT. 927]]
``(A) In general.--If the Secretary has approved a covered application (including an application approved before the effective date of this section) and did not when approving the application require a risk
evaluation and mitigation strategy under paragraph (1), the Secretary, in consultation with the offices described
in paragraph (1), may subsequently require such a strategy for the drug involved (including when acting on a supplemental application seeking approval of a new indication for use of the drug) if the Secretary
becomes aware of new safety information and makes a determination that such a strategy is necessary to ensure that the benefits of the drug outweigh the risks of the drug.
``(B) Submission of <<NOTE: Deadline. Notification.>> proposed strategy.--Not later than 120 days after the Secretary notifies the holder of an approved covered application that the Secretary has made a determination under subparagraph (A) with respect to the drug involved, or within such other reasonable time as the Secretary requires to protect the public health, the holder shall submit to the Secretary a proposed risk evaluation and mitigation strategy.
``(3) Abbreviated <<NOTE: Applicability.>> new drug applications.--The applicability of this section to an application under section 505(j) is subject to subsection (i).
``(4) Non-delegation.--Determinations by the Secretary under
this subsection for a drug shall be made by individuals at or above the level of individuals empowered to approve a drug
(such as division directors within the Center for Drug Evaluation and Research).
``(b) Definitions.--For purposes of this section: ``(1) Adverse drug experience.--The term `adverse drug
experience' means any adverse event associated with the use of a
drug in humans, whether or not considered drug related, including--
``(A) an adverse event occurring in the course of the use of the drug in professional practice;
``(B) an adverse event occurring from an overdose of
the drug, whether accidental or intentional; ``(C) an adverse event occurring from abuse of the
drug; ``(D) an adverse event occurring from withdrawal of
the drug; and ``(E) any failure of expected pharmacological
action of the drug.
``(2) Covered application.--The term `covered application' means an application referred to in section 505(p)(1)(A).
``(3) New safety information.--The term `new safety information', with respect to a drug, means information derived from a clinical trial, an adverse event report, a postapproval study (including a study under section 505(o)(3)), or peer- reviewed biomedical literature; data derived from the
postmarket risk identification and analysis system under section 505(k);
or other scientific data deemed appropriate by the Secretary about--
``(A) a serious risk or an unexpected serious risk associated with use of the drug that the Secretary has become aware of (that may be based on a new analysis of existing
[[Page 121 STAT. 928]]
information) since the drug was approved, since the risk
evaluation and mitigation strategy was required, or since the last assessment of the approved risk evaluation and mitigation strategy for the drug; or
``(B) the effectiveness of the approved risk evaluation and mitigation strategy for the drug
obtained since the last assessment of such strategy.
``(4) Serious adverse drug experience.--The term `serious adverse drug experience' is an adverse drug experience that--
``(A) results in-- ``(i) death; ``(ii) an adverse drug experience that places
the patient at immediate risk of death from the adverse drug experience as it occurred (not including an adverse drug experience that might have caused death had it occurred in a more
severe form);
``(iii) inpatient hospitalization or prolongation of existing hospitalization;
``(iv) a persistent or significant incapacity or substantial disruption of the ability to conduct normal life functions; or
``(v) a congenital anomaly or birth defect; or
``(B) based on appropriate medical judgment, may jeopardize the patient and may require a medical or surgical intervention to prevent an outcome described under subparagraph (A).
``(5) Serious risk.--The term `serious risk' means a risk of
a serious adverse drug experience. ``(6) Signal of a serious risk.--The term `signal of a
serious risk' means information related to a serious adverse drug experience associated with use of a drug and derived from-
- ``(A) a clinical trial; ``(B) adverse event reports; ``(C) a postapproval study, including a study under
section 505(o)(3); ``(D) peer-reviewed biomedical literature; ``(E) data derived from the postmarket risk
identification and analysis system under section 505(k)(4); or
``(F) other scientific data deemed appropriate by the Secretary.
``(7) Responsible person.--The term `responsible person' means the person submitting a covered application or the holder of the approved such application.
``(8) Unexpected serious risk.--The term `unexpected serious
risk' means a serious adverse drug experience that is not listed
in the labeling of a drug, or that may be symptomatically and pathophysiologically related to an adverse drug experience identified in the labeling, but differs from such adverse drug experience because of greater severity, specificity, or prevalence.
``(c) Contents.--A proposed risk evaluation and mitigation strategy under subsection (a) shall--
``(1) include the timetable required under subsection (d); and
[[Page 121 STAT. 929]]
``(2) to the extent required by the Secretary, in consultation with the office responsible for reviewing the drug and the office responsible for postapproval safety with respect to the drug, include additional elements described in subsections (e) and (f).
``(d) Minimal <<NOTE: Deadlines.>> Strategy.--For purposes of subsection (c)(1), the risk evaluation and mitigation strategy for a drug shall require a timetable for submission of assessments of the strategy that--
``(1) includes an assessment, by the date that is 18 months after the strategy is initially approved;
``(2) includes an assessment by the date that is 3 years after the strategy is initially approved;
``(3) includes an assessment in the seventh year after the strategy is so approved; and
``(4) subject to paragraphs (1), (2), and (3)-- ``(A) is at a frequency specified in the strategy; ``(B) is increased or reduced in frequency as
necessary as provided for in subsection (g)(4)(A); and ``(C) is eliminated after the 3-year period
described in paragraph (1) if the Secretary determines that serious risks of the drug have been adequately identified and assessed and are being adequately managed.
``(e) Additional Potential Elements of Strategy.-- ``(1) In general.--The Secretary, in consultation with the
offices described in subsection (c)(2), may under such subsection require that the risk evaluation and mitigation strategy for a drug include 1 or more of the additional
elements described in this subsection if the Secretary makes the determination required with respect to each element involved.
``(2) Medication guide; patient package insert.--The risk evaluation and mitigation strategy for a drug may require that, as applicable, the responsible person develop for distribution to each patient when the drug is dispensed--
``(A) a Medication Guide, as provided for under part
208 of title 21, Code of Federal Regulations (or any successor regulations); and
``(B) a patient package insert, if the Secretary determines that such insert may help mitigate a serious risk of the drug.
``(3) Communication plan.--The risk evaluation and mitigation strategy for a drug may require that the responsible person conduct a communication plan to health care providers, if, with respect to such drug, the Secretary determines that such plan may support implementation of an element of the strategy (including under this paragraph). Such plan may include--
``(A) sending letters to health care providers; ``(B) disseminating information about the elements
of the risk evaluation and mitigation strategy to
encourage implementation by health care providers of components that apply to such health care providers, or to explain certain safety protocols (such as medical monitoring by periodic laboratory tests); or
``(C) disseminating information to health care providers through professional societies about any serious risks of the drug and any protocol to assure safe use.
[[Page 121 STAT. 930]]
``(f) Providing Safe Access for Patients to Drugs With Known Serious Risks That Would Otherwise Be Unavailable.--
``(1) Allowing safe access to drugs with known serious risks.--The Secretary, in consultation with the offices described in subsection (c)(2), may require that the risk evaluation and mitigation strategy for a drug include such elements as are necessary to assure safe use of the drug, because of its inherent toxicity or potential harmfulness, if the Secretary determines that--
``(A) the drug, which has been shown to be effective, but is associated with a serious adverse
drug experience, can be approved only if, or would be withdrawn unless, such elements are required as part of such strategy to mitigate a specific serious risk
listed in the labeling of the drug; and
``(B) for a drug initially approved without elements
to assure safe use, other elements under subsections (c), (d), and (e) are not sufficient to mitigate such serious risk.
``(2) Assuring access and minimizing burden.--Such elements to assure safe use under paragraph (1) shall--
``(A) be commensurate with the specific serious risk
listed in the labeling of the drug; ``(B) <<NOTE: Deadline.>> within 30 days of the
date on which any element under paragraph (1) is imposed, be posted publicly by the Secretary with an explanation of how such elements will mitigate the observed safety risk;
``(C) considering such risk, not be unduly burdensome on patient access to the drug, considering
in particular--
``(i) patients with serious or life- threatening diseases or conditions; and
``(ii) patients who have difficulty accessing health care (such as patients in rural or medically underserved areas); and
``(D) to the extent practicable, so as to minimize the burden on the health care delivery system--
``(i) conform with elements to assure safe use
for other drugs with similar, serious risks; and ``(ii) be designed to be compatible with
established distribution, procurement, and dispensing systems for drugs.
``(3) Elements to assure safe use.--The elements to assure safe use under paragraph (1) shall include 1 or more goals to mitigate a specific serious risk listed in the labeling of the drug and, to mitigate such risk, may require that--
``(A) health care providers who prescribe the drug have particular training or experience, or are
specially certified (the opportunity to obtain such training or certification with respect to the drug shall be available to any willing provider from a frontier area in a widely available training or certification method (including an on-line course or via mail) as approved
by the Secretary at reasonable cost to the provider);
[[Page 121 STAT. 931]]
``(B) pharmacies, practitioners, or health care settings that dispense the drug are specially certified (the opportunity to obtain such certification shall be available to any willing provider from a frontier
area); ``(C) the drug be dispensed to patients only in
certain health care settings, such as hospitals; ``(D) the drug be dispensed to patients with
evidence or other documentation of safe-use conditions, such as laboratory test results;
``(E) each patient using the drug be subject to certain monitoring; or
``(F) each patient using the drug be enrolled in a registry.
``(4) Implementation system.--The elements to assure safe use under paragraph (1) that are described in subparagraphs
(B), (C), and (D) of paragraph (3) may include a system through
which the applicant is able to take reasonable steps to--
``(A) monitor and evaluate implementation of such elements by health care providers, pharmacists, and other parties in the health care system who are responsible for implementing such elements; and
``(B) work to improve implementation of such elements by such persons.
``(5) Evaluation of elements to assure safe use.--The Secretary, through the Drug Safety and Risk Management Advisory Committee (or successor committee) of the Food and Drug Administration, shall--
``(A) seek input from patients, physicians, pharmacists, and other health care providers about how elements to assure safe use under this subsection for 1 or more drugs may be standardized so as not to be--
``(i) unduly burdensome on patient access to the drug; and
``(ii) to the extent practicable, minimize the
burden on the health care delivery system; ``(B) at least annually, evaluate, for 1 or more
drugs, the elements to assure safe use of such drug to assess whether the elements--
``(i) assure safe use of the drug; ``(ii) are not unduly burdensome on patient
access to the drug; and ``(iii) to the extent practicable, minimize
the burden on the health care delivery system; and
``(C) considering such input and evaluations-- ``(i) issue or modify agency guidance about
how to implement the requirements of this subsection; and
``(ii) modify elements under this subsection for 1 or more drugs as appropriate.
``(6) Additional mechanisms to assure access.--The mechanisms under section 561 to provide for expanded access for patients with serious or life-threatening diseases or
conditions may be used to provide access for patients with a serious or life-threatening disease or condition, the treatment of which
is not an approved use for the drug, to a drug that is subject to elements to assure safe use under this <<NOTE: Regulations.>> subsection. The Secretary shall promulgate regulations for how a physician may provide the drug under the mechanisms of section 561.
[[Page 121 STAT. 932]]
``(7) Waiver in public health emergencies.--The Secretary may waive any requirement of this subsection during the period described in section 319(a) of the Public Health Service Act with respect to a qualified countermeasure described under section 319F-1(a)(2) of such Act, to which a requirement under this subsection has been applied, if the Secretary has--
``(A) declared a public health emergency under such section 319; and
``(B) determined that such waiver is required to mitigate the effects of, or reduce the severity of,
such public health emergency.
``(8) Limitation.--No holder of an approved covered application shall use any element to assure safe use required
by the Secretary under this subsection to block or delay approval of an application under section 505(b)(2) or (j) or to prevent application of such element under subsection (i)(1)(B) to a
drug that is the subject of an abbreviated new drug application.
``(g) Assessment and Modification of Approved Strategy.--
``(1) Voluntary assessments.--After the approval of a risk evaluation and mitigation strategy under subsection (a), the responsible person involved may, subject to paragraph (2), submit to the Secretary an assessment of, and propose a modification to, the approved strategy for the drug involved at any time.
``(2) Required assessments.--A responsible person shall, subject to paragraph (5), submit an assessment of, and may propose a modification to, the approved risk evaluation and mitigation strategy for a drug--
``(A) when submitting a supplemental application for
a new indication for use under section 505(b) or under section 351 of the Public Health Service Act, unless
the drug is not subject to section 503(b) and the risk evaluation and mitigation strategy for the drug
includes only the timetable under subsection (d);
``(B) when required by the strategy, as provided for
in such timetable under subsection (d); ``(C) within a time period to be determined by the
Secretary, if the Secretary, in consultation with the offices described in subsection (c)(2), determines that new safety or effectiveness information indicates that-
- ``(i) an element under subsection (d) or (e)
should be modified or included in the strategy; or
``(ii) an element under subsection (f) should be modified or included in the strategy; or
``(D) <<NOTE: Deadline.>> within 15 days when ordered by the Secretary, in consultation with the offices described in subsection (c)(2), if the
Secretary determines that there may be a cause for action by the Secretary under section 505(e).
``(3) Requirements for assessments.--An assessment under paragraph (1) or (2) of an approved risk evaluation and mitigation strategy for a drug shall include--
``(A) with respect to any goal under subsection (f),
an assessment of the extent to which the elements to assure safe use are meeting the goal or whether the
goal or such elements should be modified;
[[Page 121 STAT. 933]]
``(B) with respect to any postapproval study required under section 505(o) or otherwise undertaken
by the responsible person to investigate a safety issue, the status of such study, including whether any difficulties completing the study have been
encountered;
and ``(C) with respect to any postapproval clinical
trial required under section 505(o) or otherwise undertaken by the responsible party to investigate a safety issue, the status of such clinical trial, including whether enrollment has begun, the number of participants enrolled, the expected completion date, whether any difficulties completing the clinical trial have been encountered, and registration information
with respect to requirements under subsections (i) and (j)
of section 402 of the Public Health Service Act.
``(4) Modification.--A modification (whether an enhancement or a reduction) to the approved risk evaluation and mitigation strategy for a drug may include the addition or modification of any element under subsection (d) or the addition, modification, or removal of any element under subsection (e) or (f), such as-
- ``(A) modifying the timetable for assessments of
the strategy as provided in subsection (d)(3), including to eliminate assessments; or
``(B) adding, modifying, or removing an element to assure safe use under subsection (f).
``(h) Review of Proposed Strategies; Review of Assessments of Approved Strategies.--
``(1) In general.--The Secretary, in consultation with the offices described in subsection (c)(2), shall promptly review each proposed risk evaluation and mitigation strategy for a
drug submitted under subsection (a) and each assessment of an approved risk evaluation and mitigation strategy for a drug submitted under subsection (g).
``(2) Discussion.--The <<NOTE: Deadlines.>> Secretary, in consultation with the offices described in subsection (c)(2), shall initiate discussions with the responsible person for purposes of this subsection to determine a strategy not later than 60 days after any such assessment is submitted or, in the case of an assessment submitted under subsection (g)(2)(D), not later than 30 days after such assessment is submitted.
``(3) Action.-- ``(A) In general.--Unless the dispute resolution
process described under paragraph (4) or (5) applies, the Secretary, in consultation with the offices described in subsection (c)(2), shall describe any required risk evaluation and mitigation strategy for a drug, or any modification to any required strategy--
``(i) as part of the action letter on the application, when a proposed strategy is
submitted under subsection (a) or a modification to the strategy is proposed as part of an assessment of the strategy submitted under subsection (g)(1);
or ``(ii) <<NOTE: Deadline.>> in an order issued
not later than 90 days after the date discussions of such modification begin under paragraph (2), when a modification to the strategy is proposed
as part of an assessment of the
[[Page 121 STAT. 934]]
strategy submitted under subsection (g)(1) or under any of subparagraphs (B) through (D) of subsection (g)(2).
``(B) Inaction.--An approved risk evaluation and mitigation strategy shall remain in effect until the Secretary acts, if the Secretary fails to act as provided under subparagraph (A).
``(C) Public availability.--Any action letter described in subparagraph (A)(i) or order described in subparagraph (A)(ii) shall be made publicly available.
``(4) Dispute resolution at initial approval.--If a proposed
risk evaluation and mitigation strategy is submitted under subsection (a)(1) in an application for initial approval of a drug and there is a dispute about the strategy, the responsible person shall use the major dispute resolution procedures as set forth in the letters described in section 101(c) of the Food
and Drug Administration Amendments Act of 2007.
``(5) Dispute resolution in all other cases.-- ``(A) Request <<NOTE: Deadlines.>> for review.--
``(i) In general.--Not earlier than 15 days, and not later than 35 days, after discussions under paragraph (2) have begun, the responsible person may request in writing that a dispute
about the strategy be reviewed by the Drug Safety Oversight Board under subsection (j), except that the determination of the Secretary to require a risk evaluation and mitigation strategy is not subject to review under this paragraph. The preceding sentence does not prohibit review under this paragraph of the particular elements of such a strategy.
``(ii) Scheduling.--Upon receipt of a request under clause (i), the Secretary shall schedule
the dispute involved for review under subparagraph
(B) and, not later than 5 business days of scheduling the dispute for review, shall publish by posting on the Internet or otherwise a notice that the dispute will be reviewed by the Drug Safety Oversight Board.
``(B) Scheduling review.--If a responsible person requests review under subparagraph (A), the Secretary--
``(i) shall schedule the dispute for review at
1 of the next 2 regular meetings of the Drug
Safety Oversight Board, whichever meeting date is more practicable; or
``(ii) may convene a special meeting of the Drug Safety Oversight Board to review the matter more promptly, including to meet an action deadline on an application (including a supplemental application).
``(C) Agreement after discussion or administrative appeals.--
``(i) Further discussion or administrative appeals.--A request for review under subparagraph (A) shall not preclude further discussions to reach agreement on the risk evaluation and mitigation strategy, and such a request shall not preclude the use of administrative appeals within the Food and Drug Administration to reach agreement on the strategy, including appeals as described in the letters
[[Page 121 STAT. 935]]
described in section 101(c) of the Food and Drug Administration Amendments Act of 2007 for procedural or scientific matters involving the review of human drug applications and
supplemental applications that cannot be resolved at the divisional level. At the time a review has been scheduled under subparagraph (B) and notice of such review has been posted, the responsible person shall either withdraw the request under subparagraph (A) or terminate the use of such administrative appeals.
``(ii) Agreement terminates dispute resolution.--At any time before a decision and order is issued under subparagraph (G) , the Secretary (in consultation with the offices described in subsection (c)(2)) and the responsible person may reach an agreement on the risk evaluation and mitigation strategy through further discussion or administrative appeals, terminating the dispute resolution process, and the Secretary shall issue an action letter or order, as appropriate, that describes the strategy.
``(D) Meeting of the board.--At a meeting of the Drug Safety Oversight Board described in subparagraph (B), the Board shall--
``(i) hear from both parties via written or oral presentation; and
``(ii) review the dispute. ``(E) Record of <<NOTE: Public
information. Deadline.>> proceedings.--The Secretary shall ensure that the proceedings of any such meeting are recorded, transcribed, and made public within 90 days of the meeting. The Secretary shall redact the transcript to protect any trade secrets and other
information that is exempted from disclosure under section 552 of title 5, United States Code, or section 552a of title 5, United States Code.
``(F) Recommendation of <<NOTE: Deadlines. Public information.>> the board.--Not later than 5 days after any such meeting, the Drug Safety Oversight Board shall provide a written recommendation on resolving the dispute to the Secretary. Not later than 5 days after the Board provides such written recommendation to the Secretary, the Secretary shall make the recommendation available to the public.
``(G) Action <<NOTE: Deadlines.>> by the secretary.--
``(i) Action letter.--With respect to a proposal or assessment referred to in paragraph (1), the Secretary shall issue an action letter that resolves the dispute not later than the
later of--
``(I) the action deadline for the action letter on the application; or
``(II) 7 days after receiving the recommendation of the Drug Safety Oversight Board.
``(ii) Order.--With respect to an assessment of an approved risk evaluation and mitigation strategy under subsection (g)(1) or under any of subparagraphs (B) through (D) of subsection (g)(2), the Secretary shall issue an order, which shall be made public, that resolves the dispute not later than 7 days after
[[Page 121 STAT. 936]]
receiving the recommendation of the Drug Safety Oversight Board.
``(H) Inaction.--An approved risk evaluation and mitigation strategy shall remain in effect until the Secretary acts, if the Secretary fails to act as provided for under subparagraph (G).
``(I) Effect on action deadline.--With respect to a proposal or assessment referred to in paragraph (1),
the Secretary shall be considered to have met the action deadline for the action letter on the application if
the responsible person requests the dispute resolution process described in this paragraph and if the Secretary--
``(i) has initiated the discussions described under paragraph (2) not less than 60 days before such action deadline; and
``(ii) has complied with the timing requirements of scheduling review by the Drug Safety Oversight Board, providing a written recommendation, and issuing an action letter
under
subparagraphs (B), (F), and (G), respectively. ``(J) Disqualification.--No individual who is an
employee of the Food and Drug Administration and who reviews a drug or who participated in an administrative appeal under subparagraph (C)(i) with respect to such drug may serve on the Drug Safety Oversight Board at a meeting under subparagraph (D) to review a dispute
about the risk evaluation and mitigation strategy for such drug.
``(K) Additional expertise.--The Drug Safety Oversight Board may add members with relevant expertise from the Food and Drug Administration, including the Office of Pediatrics, the Office of Women's Health, or the Office of Rare Diseases, or from other Federal public health or health care agencies, for a meeting under subparagraph (D) of the Drug Safety Oversight Board.
``(6) Use of advisory committees.--The Secretary may convene
a meeting of 1 or more advisory committees of the Food and Drug Administration to--
``(A) review a concern about the safety of a drug or
class of drugs, including before an assessment of the risk evaluation and mitigation strategy or strategies
of such drug or drugs is required to be submitted under
any of subparagraphs (B) through (D) of subsection (g)(2);
``(B) review the risk evaluation and mitigation strategy or strategies of a drug or group of drugs; or
``(C) review a dispute under paragraph (4) or (5). ``(7) Process for addressing drug class effects.--
``(A) In general.--When a concern about a serious risk of a drug may be related to the pharmacological class of the drug, the Secretary, in consultation with the offices described in subsection (c)(2), may defer assessments of the approved risk evaluation and mitigation strategies for such drugs until the
Secretary has convened 1 or more public meetings to consider possible responses to such concern.
``(B) Notice.--If the Secretary defers an assessment
under subparagraph (A), the Secretary shall--
[[Page 121 STAT. 937]]
``(i) <<NOTE: Deadline.>> give notice of the deferral to the holder of the approved covered application not later than 5 days after the deferral;
``(ii) <<NOTE: Federal Register, publication.>> publish the deferral in the Federal Register; and
``(iii) <<NOTE: Public information.>> give
notice to the public of any public meetings to be convened under subparagraph (A), including a description of the deferral.
``(C) Public meetings.--Such public meetings may include--
``(i) 1 or more meetings of the responsible person for such drugs;
``(ii) 1 or more meetings of 1 or more advisory committees of the Food and Drug Administration, as provided for under paragraph (6); or
``(iii) 1 or more workshops of scientific experts and other stakeholders.
``(D) Action.--After considering the discussions from any meetings under subparagraph (A), the Secretary may--
``(i) announce in the Federal Register a planned regulatory action, including a modification to each risk evaluation and mitigation strategy, for drugs in the pharmacological class;
``(ii) seek public comment about such action; and
``(iii) after seeking such comment, issue an order addressing such regulatory action.
``(8) International coordination.--The Secretary, in consultation with the offices described in subsection (c)(2), may coordinate the timetable for submission of assessments
under subsection (d), or a study or clinical trial under section 505(o)(3), with efforts to identify and assess the serious
risks of such drug by the marketing authorities of other countries whose drug approval and risk management processes the Secretary deems comparable to the drug approval and risk management processes of the United States. If the Secretary takes action
to coordinate such timetable, the Secretary shall give notice to the responsible person.
``(9) Effect.--Use of the processes described in paragraphs (7) and (8) shall not be the sole source of delay of action on an application or a supplement to an application for a drug.
``(i) Abbreviated New Drug Applications.-- ``(1) In general.--A drug that is the subject of an
abbreviated new drug application under section 505(j) is subject
to only the following elements of the risk evaluation and mitigation strategy required under subsection (a) for the applicable listed drug:
``(A) A Medication Guide or patient package insert, if required under subsection (e) for the applicable listed drug.
``(B) Elements to assure safe use, if required under
subsection (f) for the listed drug. A drug that is the subject of an abbreviated new drug application and the
listed drug shall use a single, shared system under subsection (f). The Secretary may waive the requirement under the preceding sentence for a drug that is the subject of an abbreviated new drug application, and permit the applicant to
[[Page 121 STAT. 938]]
use a different, comparable aspect of the elements to assure safe use, if the Secretary determines that--
``(i) the burden of creating a single, shared system outweighs the benefit of a single, system, taking into consideration the impact on health care providers, patients, the applicant for the abbreviated new drug application, and the holder of the reference drug product; or
``(ii) an aspect of the elements to assure safe use for the applicable listed drug is
claimed by a patent that has not expired or is a method
or process that, as a trade secret, is entitled to protection, and the applicant for the abbreviated new drug application certifies that it has sought a license for use of an aspect of the elements to assure safe use for the applicable listed drug
and that it was unable to obtain a license.
A certification under clause (ii) shall include a description of the efforts made by the applicant for
the abbreviated new drug application to obtain a license.
In a case described in clause (ii), the Secretary may seek to negotiate a voluntary agreement with the owner of
the patent, method, or process for a license under which
the applicant for such abbreviated new drug application may use an aspect of the elements to assure safe use, if required under subsection (f) for the applicable listed drug, that is claimed by a patent that has not expired or is a method or process that as a trade secret is entitled to protection.
``(2) Action by secretary.--For an applicable listed drug for which a drug is approved under section 505(j), the Secretary--
``(A) shall undertake any communication plan to health care providers required under subsection (e)(3) for the applicable listed drug; and
``(B) shall inform the responsible person for the drug that is so approved if the risk evaluation and mitigation strategy for the applicable listed drug is modified.
``(j) Drug <<NOTE: Establishment.>> Safety Oversight Board.-- ``(1) In general.--There is established a Drug Safety
Oversight Board. ``(2) Composition; meetings.--The Drug Safety Oversight
Board shall-- ``(A) be composed of scientists and health care
practitioners appointed by the Secretary, each of whom is an employee of the Federal Government;
``(B) include representatives from offices throughout the Food and Drug Administration, including the offices responsible for postapproval safety of drugs;
``(C) include at least 1 representative each from the National Institutes of Health and the Department of Health and Human Services (other than the Food and Drug Administration);
``(D) include such representatives as the Secretary shall designate from other appropriate agencies that wish to provide representatives; and
``(E) meet at least monthly to provide oversight and
advice to the Secretary on the management of important drug safety issues.''.
[[Page 121 STAT. 939]]
(c) Regulation of Biological Products.--Section 351 of the Public Health Service Act (42 U.S.C. 262) is amended--
(1) in subsection (a)(2), by adding at the end the following:
``(D) Postmarket Studies and Clinical Trials; Labeling; Risk Evaluation and Mitigation Strategy.--A person that submits an application for a license under this paragraph is subject to sections 505(o), 505(p), and 505-1 of the Federal Food, Drug, and Cosmetic Act.''; and
(2) in subsection (j), by inserting ``, including the requirements under sections 505(o), 505(p), and 505-1 of such Act,'' after ``, and Cosmetic Act''.
(d) Advertisements of Drugs.--The Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.), as amended by section 801(b), is amended--
(1) in section 301 (21 U.S.C. 331), by adding at the end the
following:
``(kk) The dissemination of a television advertisement without complying with section 503B.''; and
(2) by inserting after section 503A the following: ``SEC. 503B. <<NOTE: 21 USC 353b.>> PREREVIEW OF TELEVISION
ADVERTISEMENTS.
``(a) In <<NOTE: Deadline.>> General.--The Secretary may require the submission of any television advertisement for a drug (including any script, story board, rough, or a completed video production of the television advertisement) to the Secretary for review under this section not later than 45 days before dissemination of the television
advertisement.
``(b) Review.--In conducting a review of a television advertisement under this section, the Secretary may make recommendations with respect to information included in the label of the drug--
``(1) on changes that are-- ``(A) necessary to protect the consumer good and
well-being; or ``(B) consistent with prescribing information for
the product under review; and ``(2) if appropriate and if information exists, on
statements for inclusion in the advertisement to address the specific efficacy of the drug as it relates to specific population groups, including elderly populations, children, and racial and ethnic minorities.
``(c) No Authority to Require Changes.--Except as provided by subsection (e), this section does not authorize the Secretary to make or direct changes in any material submitted pursuant to subsection (a).
``(d) Elderly Populations, Children, Racially and Ethnically Diverse Communities.--In formulating recommendations under subsection (b), the Secretary shall take into consideration the impact of the advertised drug on elderly populations, children, and racially and ethnically diverse communities.
``(e) Specific Disclosures.-- ``(1) Serious risk; safety protocol.--In conducting a
review of a television advertisement under this section, if the Secretary determines that the advertisement would be false or misleading without a specific disclosure about a serious risk listed in the labeling of the drug involved, the Secretary may require inclusion of such disclosure in the advertisement.
[[Page 121 STAT. 940]]
``(2) Date of approval.--In conducting a review of a television advertisement under this section, the Secretary may require the advertisement to include, for a period not to
exceed 2 years from the date of the approval of the drug under section 505 or section 351 of the Public Health Service Act, a specific disclosure of such date of approval if the Secretary determines that the advertisement would otherwise be false or misleading.
``(f) Rule of Construction.--Nothing in this section may be construed as having any effect on requirements under section 502(n) or on the authority of the Secretary under section 314.550, 314.640, 601.45, or 601.94 of title 21, Code of Federal Regulations (or successor regulations).''.
(3) Direct-to-consumer advertisements.-- (A) In general.--Section 502(n) of the Federal
Food, Drug, and Cosmetic Act (21 U.S.C. 352(n)) is amended by adding at the end the following: ``In the case of an
advertisement for a drug subject to section 503(b)(1) presented directly to consumers in television or radio format and stating the name of the drug and its conditions of use, the major statement relating to side effects and contraindications shall be presented in a clear, conspicuous, and neutral manner.''.
(B) Regulations to <<NOTE: Deadline. 21 USC 352 note.>> determine clear, conspicuous, and neutral manner.--Not later than 30 months after the date of the enactment of the Food and Drug Administration
Amendments Act of 2007, the Secretary of Health and Human Services shall by regulation establish standards for determining whether a major statement relating to side effects and contraindications of a drug, described in section
502(n) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 352(n)) (as amended by subparagraph (A)) is presented
in the manner required under such section.
(4) Civil penalties.--Section 303 of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. 333), as amended by section 801(b), is amended by adding at the end the following:
``(g)(1) With respect to a person who is a holder of an approved application under section 505 for a drug subject to section 503(b) or under section 351 of the Public Health Service Act, any such person who disseminates or causes another party to disseminate a direct-to- consumer advertisement that is false or misleading shall be liable to the United States for a civil penalty in an amount not to exceed $250,000 for the first such violation in any 3-year period, and not to exceed $500,000 for each subsequent violation in any 3-year period. No other civil monetary penalties in this Act (including the civil penalty in section 303(f)(4)) shall apply to a violation regarding direct-to-consumer advertising. For purposes of this paragraph: (A) Repeated dissemination of the same or similar advertisement prior to the receipt of the written notice referred to in paragraph (2) for such advertisements shall be considered one violation. (B) On and after the date of the receipt of such a notice, all violations under this paragraph occurring in a single day shall be considered one violation. With respect to advertisements that appear in magazines or other publications that are published less frequently than daily, each issue date (whether weekly or monthly) shall be treated as a single day for the purpose of calculating the number of violations under this paragraph.
[[Page 121 STAT. 941]]
``(2) <<NOTE: Public record. Notification.>> A civil penalty under paragraph (1) shall be assessed by the Secretary by an order made on the record after providing written notice to the person to be assessed a civil penalty and an opportunity for a hearing in accordance with this
paragraph and section 554 of title 5, United States Code. If upon receipt of the written notice, the person to be assessed a civil penalty objects and requests a hearing, then in the course of any investigation related to such hearing, the Secretary may issue subpoenas requiring the attendance and testimony of witnesses and the production of evidence that relates to the matter under investigation, including information pertaining to the factors described in paragraph (3).
``(3) The Secretary, in determining the amount of the civil penalty under paragraph (1), shall take into account the nature, circumstances, extent, and gravity of the violation or violations, including the following factors:
``(A) Whether the person submitted the advertisement or a similar advertisement for review under section 736A.
``(B) Whether the person submitted the advertisement for review if required under section 503B.
``(C) Whether, after submission of the advertisement as described in subparagraph (A) or (B), the person disseminated
or caused another party to disseminate the advertisement before
the end of the 45-day comment period.
``(D) Whether the person incorporated any comments made by the Secretary with regard to the advertisement into the advertisement prior to its dissemination.
``(E) Whether the person ceased distribution of the advertisement upon receipt of the written notice referred to in paragraph (2) for such advertisement.
``(F) Whether the person had the advertisement reviewed by qualified medical, regulatory, and legal reviewers prior to its dissemination.
``(G) Whether the violations were material. ``(H) Whether the person who created the advertisement or
caused the advertisement to be created acted in good faith. ``(I) Whether the person who created the advertisement or
caused the advertisement to be created has been assessed a civil
penalty under this provision within the previous 1-year period. ``(J) The scope and extent of any voluntary, subsequent
remedial action by the person. ``(K) Such other matters, as justice may require.
``(4)(A) Subject to subparagraph (B), no person shall be required to pay a civil penalty under paragraph (1) if the person submitted the advertisement to the Secretary and disseminated or caused another party to disseminate such advertisement after incorporating each comment received from the Secretary.
``(B) The Secretary may retract or modify any prior comments the Secretary has provided to an advertisement submitted to the Secretary based on new information or changed circumstances, so long as the Secretary provides written notice to the person of the new views of the Secretary on the advertisement and provides a reasonable time for modification or correction of the advertisement prior to seeking any civil penalty under paragraph (1).
``(5) The Secretary may compromise, modify, or remit, with or without conditions, any civil penalty which may be assessed
[[Page 121 STAT. 942]]
under paragraph (1). The amount of such penalty, when finally determined, or the amount charged upon in compromise, may be deducted from any sums owed by the United States to the person charged.
``(6) Any person who requested, in accordance with paragraph (2), a hearing with respect to the assessment of a civil penalty and who is aggrieved by an order assessing a civil penalty, may file a petition for de novo judicial review of such order with the United States Court of Appeals for the District of Columbia Circuit or for any other circuit in which such person resides or transacts business. <<NOTE: Deadline.>> Such a petition may only be filed within the 60-day period beginning on the date the order making such assessments was issued.
``(7) If any person fails to pay an assessment of a civil penalty under paragraph (1)--
``(A) after the order making the assessment becomes final, and if such person does not file a petition for judicial review of the order in accordance with paragraph (6), or
``(B) after a court in an action brought under paragraph (6)
has entered a final judgment in favor of the Secretary,
the Attorney General of the United States shall recover the amount assessed (plus interest at currently prevailing rates from the date of the expiration of the 60-day period referred to in paragraph (6) or the date of such final judgment, as the case may be) in an action brought in any appropriate district court of the United States. In such an action, the validity, amount, and appropriateness of such penalty shall not be subject to review.''.
(5) Report on direct-to-consumer advertising.--Not later than 24 months after the date of the enactment of this Act, the Secretary of Health and Human Services shall report to the Congress on direct-to-consumer advertising and its ability to communicate to subsets of the general population, including elderly populations, children, and racial and ethnic minority communities. The Secretary shall utilize the Advisory Committee on Risk Communication established under this Act to advise the Secretary with respect to such report. The Advisory Committee shall study direct-to-consumer advertising as it relates to increased access to health information and decreased health disparities for these populations. The report required by this paragraph shall recommend effective ways to present and disseminate information to these populations. Such report shall also make recommendations regarding impediments to the participation of elderly populations, children, racially and ethnically diverse communities, and medically underserved populations in clinical drug trials and shall recommend best practice approaches for increasing the inclusion of such
subsets
of the general population. The Secretary of Health and Human Services shall submit the report under this paragraph to the Committee on Health, Education, Labor, and Pensions of the Senate and the Committee on Energy and Commerce of the House of Representatives.
(6) Rulemaking.--Section 502(n) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 352(n)) is amended by striking
``the procedure specified in section 701(e) of this Act'' and inserting ``section 701(a)''.
(e) Rule of <<NOTE: 21 USC 355a note.>> Construction Regarding Pediatric Studies.--This title and the amendments made by this title may not be
[[Page 121 STAT. 943]]
construed as affecting the authority of the Secretary of Health and Human Services to request pediatric studies under section 505A of the Federal Food, Drug, and Cosmetic Act or to require such studies under section 505B of such Act. SEC. 902. ENFORCEMENT.
(a) Misbranding.--Section 502 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 352) is amended by adding at the end the following:
``(y) If it is a drug subject to an approved risk evaluation and mitigation strategy pursuant to section 505(p) and the responsible person (as such term is used in section 505-1) fails to comply with a requirement of such strategy provided for under subsection (d), (e), or (f) of section 505-1.
``(z) If it is a drug, and the responsible person (as such term is used in section 505(o)) is in violation of a requirement established under paragraph (3) (relating to postmarket studies and clinical trials) or paragraph (4) (relating to labeling) of section 505(o) with respect to such drug.''.
(b) Civil Penalties.--Section 303(f) of the Federal Food, Drug, and Cosmetic Act, as amended by section 801(b), is amended--
(1) by inserting after paragraph (3), as added by section 801(b)(2), the following:
``(4)(A) Any responsible person (as such term is used in section 505-1) that violates a requirement of section 505(o), 505(p), or 505-1 shall be subject to a civil monetary penalty of--
``(i) not more than $250,000 per violation, and not to exceed $1,000,000 for all such violations adjudicated in a single proceeding; or
``(ii) in the case of a violation that continues after the Secretary provides written notice to the responsible person,
the responsible person shall be subject to a civil monetary penalty of $250,000 for the first 30-day period (or any portion
thereof) that the responsible person continues to be in violation, and
such amount shall double for every 30-day period thereafter that
the violation continues, not to exceed $1,000,000 for any 30- day
period, and not to exceed $10,000,000 for all such violations adjudicated in a single proceeding.
``(B) In determining the amount of a civil penalty under subparagraph (A)(ii), the Secretary shall take into consideration whether the responsible person is making efforts toward correcting the violation of the requirement of section 505(o), 505(p), or 505-1 for which the responsible person is subject to such civil penalty.''; and
(2) in paragraph (5), as redesignated by section 801(b)(2)(A), by striking ``paragraph (1), (2), or (3)'' each place it appears and inserting ``paragraph (1), (2), (3), or (4)''.
SEC. 903. NO EFFECT ON WITHDRAWAL OR SUSPENSION OF APPROVAL.
Section 505(e) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355(e)) is amended by adding at the end the following: ``The Secretary may withdraw the approval of an application submitted under this section, or suspend the approval of such an application, as provided under this subsection, without first ordering the applicant to submit an assessment of the approved risk evaluation and mitigation strategy for the drug under section 505-1(g)(2)(D).''.
[[Page 121 STAT. 944]]
SEC. 904. <<NOTE: Deadline. Reports.>> BENEFIT-RISK ASSESSMENTS.
Not later than 1 year after the date of the enactment of this Act, the Commissioner of Food and Drugs shall submit to the Congress a report on how best to communicate to the public the risks and benefits of new drugs and the role of the risk evaluation and mitigation strategy in assessing such risks and benefits. As part of such study, the Commissioner may consider the possibility of including in the labeling and any direct-to-consumer advertisements of a newly approved drug or indication a unique symbol indicating the newly approved status of the drug or indication for a period after approval. SEC. 905. ACTIVE POSTMARKET RISK IDENTIFICATION AND ANALYSIS.
(a) In General.--Subsection (k) of section 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355) is amended by adding at the end the following:
``(3) Active postmarket risk identification.-- ``(A) Definition.--In this paragraph, the term
`data' refers to information with respect to a drug approved under this section or under section 351 of the Public Health Service Act, including claims data, patient survey data, standardized analytic files that allow for the pooling and analysis of data from disparate data environments, and any other data deemed appropriate by the Secretary.
``(B) Development of <<NOTE: Deadline.>> postmarket risk identification and analysis methods.--The
Secretary
shall, not later than 2 years after the date of the enactment of the Food and Drug Administration
Amendments Act of 2007, in collaboration with public, academic,
and private entities--
``(i) develop methods to obtain access to disparate data sources including the data sources specified in subparagraph (C);
``(ii) develop validated methods for the establishment of a postmarket risk identification and analysis system to link and analyze safety data from multiple sources, with the goals of including, in aggregate--
``(I) at least 25,000,000 patients by July 1, 2010; and
``(II) at least 100,000,000 patients
by July 1, 2012; and ``(iii) <<NOTE: Committee.>> convene a
committee of experts, including individuals who are recognized in the field of protecting data privacy and security, to make recommendations to the Secretary on the development of tools and methods for the ethical and scientific uses for, and communication of, postmarketing data
specified under subparagraph (C), including recommendations on the development of effective research methods for the study of drug safety questions.
``(C) Establishment of the postmarket risk identification and analysis system.--
``(i) In <<NOTE: Deadline. Procedures.>> general.--The Secretary shall, not later than 1 year after the development of the risk identification and analysis methods under subparagraph (B),
establish and maintain procedures--
[[Page 121 STAT. 945]]
``(I) for risk identification and analysis based on electronic health data, in compliance with the
regulations promulgated under section 264(c) of the Health Insurance Portability and Accountability Act of 1996, and in a manner that does not disclose individually identifiable health information in violation of paragraph (4)(B);
``(II) for the reporting (in a standardized form) of data on all serious adverse drug experiences (as defined in section 505-1(b)) submitted
to the Secretary under paragraph (1), and those adverse events submitted by patients, providers, and drug sponsors, when appropriate;
``(III) to provide for active adverse event surveillance using the following data sources, as available:
``(aa) Federal health- related electronic data (such
as data from the Medicare program and the health systems of the Department of Veterans
Affairs); ``(bb) private sector
health-related electronic data (such as pharmaceutical
purchase data and health insurance
claims data); and
``(cc) other data as the Secretary deems necessary to create a robust system to identify adverse events and potential drug safety signals;
``(IV) to identify certain trends and patterns with respect to data accessed by the system;
``(V) <<NOTE: Reports.>> to provide regular reports to the Secretary concerning adverse event trends,
adverse event patterns, incidence and
prevalence of adverse events, and other
information the Secretary determines appropriate, which may include data on comparative national adverse event trends; and
``(VI) to enable the program to export data in a form appropriate for further aggregation, statistical analysis, and reporting.
``(ii) Timeliness of reporting.--The procedures established under clause (i) shall ensure that such data are accessed, analyzed, and reported in a timely, routine, and systematic manner, taking into consideration the need for data completeness, coding, cleansing, and standardized analysis and transmission.
``(iii) Private <<NOTE: Deadline.>> sector resources.--To ensure the establishment of the active postmarket risk identification and
analysis system under this subsection not later than 1
year
after the development of the risk identification and analysis methods under subparagraph (B), as required under clause (i), the Secretary may, on
a temporary or permanent basis, implement systems
or products developed by private entities.
``(iv) Complementary approaches.--To the extent the active postmarket risk identification and analysis system under this subsection is not sufficient to gather data and information
relevant to a priority drug safety question, the Secretary shall develop, support, and
[[Page 121 STAT. 946]]
participate in complementary approaches to gather and analyze such data and information, including-
- ``(I) approaches that are
complementary with respect to assessing the safety of use of a drug in domestic populations not included, or underrepresented, in the trials used to approve the drug (such as older people, people with comorbidities, pregnant women, or children); and
``(II) existing approaches such as the Vaccine Adverse Event Reporting System and the Vaccine Safety Datalink or successor databases.
``(v) Authority for contracts.--The Secretary may enter into contracts with public and private entities to fulfill the requirements of this subparagraph.
``(4) Advanced analysis of drug safety data.-- ``(A) Purpose.--The Secretary shall establish
collaborations with public, academic, and private entities, which may include the Centers for Education and Research on Therapeutics under section 912 of the Public Health Service Act, to provide for advanced analysis of drug safety data described in paragraph (3)(C) and other information that is publicly available or is provided by the Secretary, in order to--
``(i) improve the quality and efficiency of postmarket drug safety risk-benefit analysis;
``(ii) provide the Secretary with routine access to outside expertise to study advanced
drug safety questions; and
``(iii) enhance the ability of the Secretary to make timely assessments based on drug safety data.
``(B) Privacy.--Such analysis shall not disclose individually identifiable health information when presenting such drug safety signals and trends or when
responding to inquiries regarding such drug safety signals and trends.
``(C) Public process for priority questions.--At least biannually, the Secretary shall seek recommendations from the Drug Safety and Risk
Management Advisory Committee (or any successor committee) and
from other advisory committees, as appropriate, to the Food and Drug Administration on--
``(i) priority drug safety questions; and ``(ii) mechanisms for answering such
questions, including through-- ``(I) active risk identification
under paragraph (3); and ``(II) when such risk
identification is not sufficient, postapproval studies and clinical trials under subsection (o)(3).
``(D) Procedures for the development of drug safety collaborations.--
``(i) In <<NOTE: Deadline.>> general.--Not later than 180 days after the date of the establishment of the active postmarket risk identification and analysis system under this subsection, the Secretary shall establish and implement procedures under which the Secretary
may routinely contract with one or more qualified entities to--
[[Page 121 STAT. 947]]
``(I) classify, analyze, or aggregate data described in paragraph (3)(C) and information that is publicly available or is provided by the Secretary;
``(II) allow for prompt investigation of priority drug safety questions, including--
``(aa) unresolved safety questions for drugs or classes of drugs; and
``(bb) for a newly-approved drugs, safety signals from clinical trials used to approve the drug and other preapproval trials; rare, serious drug side effects; and the safety of use in domestic populations not included, or underrepresented, in the trials used to approve the drug (such as older people, people with comorbidities, pregnant women, or children);
``(III) perform advanced research and analysis on identified drug safety risks;
``(IV) focus postapproval studies and clinical trials under subsection (o)(3) more effectively on cases for which reports under paragraph (1) and other safety signal detection is not sufficient to resolve whether there is an elevated risk of a serious adverse event associated with the use of a
drug; and
``(V) carry out other activities as the Secretary deems necessary to carry out the purposes of this paragraph.
``(ii) Request for specific methodology.--The procedures described in clause (i) shall permit the Secretary to request that a specific methodology be used by the qualified entity. The qualified entity shall work with the Secretary to finalize the methodology to be used.
``(E) Use of analyses.--The Secretary shall provide the analyses described in this paragraph, including the methods and results of such analyses, about a drug to the sponsor or sponsors of such drug.
``(F) Qualified <<NOTE: Contracts.>> entities.-- ``(i) In general.--The Secretary shall enter
into contracts with a sufficient number of qualified entities to develop and provide information to the Secretary in a timely manner.
``(ii) Qualification.--The Secretary shall enter into a contract with an entity under clause (i) only if the Secretary determines that the entity has a significant presence in the United States and has one or more of the following qualifications:
``(I) The research, statistical, epidemiologic, or clinical capability and expertise to conduct and complete the activities under this paragraph, including the capability and expertise to provide the Secretary de-identified data consistent with the requirements
of this subsection.
``(II) An information technology infrastructure in place to support electronic data and operational standards to provide security for such data.
[[Page 121 STAT. 948]]
``(III) Experience with, and expertise on, the development of drug safety and effectiveness research using
electronic population data. ``(IV) An understanding of drug
development or risk/benefit balancing in
a clinical setting. ``(V) Other expertise which the
Secretary deems necessary to fulfill the
activities under this paragraph. ``(G) Contract requirements.--Each contract with a
qualified entity under subparagraph (F)(i) shall contain
the following requirements: ``(i) Ensuring privacy.--The qualified entity
shall ensure that the entity will not use data under this subsection in a manner that--
``(I) violates the regulations promulgated under section 264(c) of the Health Insurance Portability and Accountability Act of 1996;
``(II) violates sections 552 or 552a
of title 5, United States Code, with regard to the privacy of individually- identifiable beneficiary health information; or
``(III) discloses individually identifiable health information when presenting drug safety signals and trends or when responding to inquiries regarding drug safety signals and trends.
Nothing in this clause prohibits lawful disclosure
for other purposes. ``(ii) Component of another organization.--If
a qualified entity is a component of another organization--
``(I) the qualified entity shall establish appropriate security measures to maintain the confidentiality and privacy of such data; and
``(II) the entity shall not make an unauthorized disclosure of such data to the other components of the
organization in breach of such confidentiality and privacy requirement.
``(iii) Termination or <<NOTE: Applicability.>> nonrenewal.--If a contract with a qualified entity under this subparagraph is terminated or not renewed, the following requirements shall apply:
``(I) Confidentiality and privacy protections.--The entity shall continue to comply with the confidentiality and privacy requirements under this
paragraph with respect to all data disclosed to the entity.
``(II) Disposition of data.--The entity shall return any data disclosed to such entity under this subsection to which it would not otherwise have
access or, if returning the data is not practicable, destroy the data.
``(H) Competitive procedures.--The Secretary shall use competitive procedures (as defined in section 4(5) of the Federal Procurement Policy Act) to enter into contracts under subparagraph (G).
``(I) Review of contract in the event of a merger or
acquisition.--The Secretary shall review the contract
[[Page 121 STAT. 949]]
with a qualified entity under this paragraph in the event of a merger or acquisition of the entity in order to ensure that the requirements under this paragraph will continue to be met.
``(J) Coordination.--In carrying out this paragraph,
the Secretary shall provide for appropriate communications to the public, scientific, public
health, and medical communities, and other key stakeholders,
and to the extent practicable shall coordinate with the activities of private entities, professional associations, or other entities that may have sources
of drug safety data.''.
(b) Rule of <<NOTE: 21 USC 355 note.>> Construction.--Nothing in this section or the amendment made by this section shall be construed to prohibit the lawful disclosure or use of data or information by an entity other than as described in paragraph (4)(B) or (4)(G) of section 505(k) of the Federal Food, Drug, and Cosmetic Act, as added by subsection (a).
(c) Report to Congress.--Not later than 4 years after the date of the enactment of this Act, the Secretary shall report to the Congress on the ways in which the Secretary has used the active postmarket risk identification and analysis system described in paragraphs (3) and (4) of section 505(k) of the Federal Food, Drug, and Cosmetic Act, as added by subsection (a), to identify specific drug safety signals and to better understand the outcomes associated with drugs marketed in the United States.
(d) Authorization of Appropriations.--To carry out activities under the amendment made by this section for which funds are made available under section 736 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C.
379h), there are authorized to be appropriated to carry out the amendment made by this section, in addition to such funds, $25,000,000 for each of fiscal years 2008 through 2012.
(e) GAO Report.--Not later than 18 months after the date of the enactment of this Act, the Comptroller General of the United States shall evaluate data privacy, confidentiality, and security issues relating to accessing, transmitting, and maintaining data for the active postmarket risk identification and analysis system described in paragraphs (3) and (4) of section 505(k) of the Federal Food, Drug, and Cosmetic Act, as added by subsection (a), and make recommendations to the Committee on Energy and Commerce of the House of Representatives and the Committee on Health, Education, Labor and Pensions of the Senate, and any other congressional committees of relevant jurisdiction, regarding the need for any additional legislative or regulatory actions to ensure privacy, confidentiality, and security of this data or otherwise address privacy, confidentiality, and security issues to ensure the effective operation of such active postmarket identification and analysis system. SEC. 906. STATEMENT FOR INCLUSION IN DIRECT-TO-CONSUMER
ADVERTISEMENTS OF DRUGS.
(a) Published Direct-to-Consumer Advertisements.--Section 502(n) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 352), as amended by section 901(d)(6), is further amended by inserting ``and in the case of published direct-to-consumer advertisements the following statement printed in conspicuous text: `You are encouraged to report negative side effects of prescription
[[Page 121 STAT. 950]]
drugs to the FDA. Visit www.fda.gov/medwatch, or call 1-800-FDA- 1088.','' after ``section 701(a),''.
(b) <<NOTE: 21 USC 352 note.>> Study.-- (1) In <<NOTE: Deadline.>> general.--In the case of direct-
to-consumer television advertisements, the Secretary of Health and Human Services, in consultation with the Advisory Committee on Risk Communication under section 567 of the Federal Food, Drug, and Cosmetic Act (as added by section 917), shall, not later than 6 months after the date of the enactment of this
Act, conduct a study to determine if the statement in section 502(n) of such Act (as added by subsection (a)) required with respect to published direct-to-consumer advertisements is appropriate for inclusion in such television advertisements.
(2) Content.--As part of the study under paragraph (1), such
Secretary shall consider whether the information in the statement described in paragraph (1) would detract from the presentation of risk information in a direct-to-consumer television advertisement. If such Secretary determines the inclusion of such statement is appropriate in direct-to-
consumer television advertisements, such Secretary shall issue regulations requiring the implementation of such statement in
direct-to-consumer television advertisements, including determining a reasonable length of time for displaying the statement in such advertisements. <<NOTE: Reports.>> The Secretary shall report to the appropriate committees of
Congress the findings of such study and any plans to issue regulations under this paragraph.
SEC. 907. <<NOTE: 21 USC 355 note.>> NO EFFECT ON VETERINARY MEDICINE.
This subtitle, and the amendments made by this subtitle, shall have no effect on the use of drugs approved under section 505 of the Federal Food, Drug, and Cosmetic Act by, or on the lawful written or oral order of, a licensed veterinarian within the context of a veterinarian- client- patient relationship, as provided for under section 512(a)(5) of such Act. SEC. 908. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--For carrying out this subtitle and the amendments made by this subtitle, there is authorized to be appropriated $25,000,000 for each of fiscal years 2008 through 2012.
(b) Relation to Other Funding.--The authorization of appropriations under subsection (a) is in addition to any other funds available for carrying out this subtitle and the amendments made by this subtitle. SEC. 909. <<NOTE: 21 USC 331 note.>> EFFECTIVE DATE AND
APPLICABILITY.
(a) Effective Date.--This subtitle takes effect 180 days after the date of the enactment of this Act.
(b) Drugs Deemed to Have Risk Evaluation and Mitigation Strategies.--
(1) In general.--A drug that was approved before the effective date of this Act is, in accordance with paragraph
(2), deemed to have in effect an approved risk evaluation and mitigation strategy under section 505-1 of the Federal Food, Drug, and Cosmetic Act (as added by section 901) (referred to
in this section as the ``Act'') if there are in effect on the effective date of this Act elements to assure safe use--
(A) required under section 314.520 or section 601.42
of title 21, Code of Federal Regulations; or
[[Page 121 STAT. 951]]
(B) otherwise agreed to by the applicant and the Secretary for such drug.
(2) Elements of strategy; enforcement.--The approved risk evaluation and mitigation strategy in effect for a drug under paragraph (1)--
(A) is deemed to consist of the timetable required under section 505-1(d) and any additional elements
under subsections (e) and (f) of such section in effect for such drug on the effective date of this Act; and
(B) is subject to enforcement by the Secretary to the same extent as any other risk evaluation and mitigation strategy under section 505-1 of the Act, except that sections 303(f)(4) and 502(y) and (z) of
the Act (as added by section 902) shall not apply to such strategy before the Secretary has completed review of, and acted on, the first assessment of such strategy under such section 505-1.
(3) Submission.--Not <<NOTE: Deadline.>> later than 180 days
after the effective date of this Act, the holder of an approved application for which a risk evaluation and mitigation strategy is deemed to be in effect under paragraph (1) shall submit to the Secretary a proposed risk evaluation and mitigation strategy. Such proposed strategy is subject to section 505-1 of the Act as if included in such application at the time of submission of the application to the Secretary.
Subtitle B--Other Provisions to Ensure Drug Safety and Surveillance
SEC. 911. CLINICAL TRIAL GUIDANCE FOR ANTIBIOTIC DRUGS.
Chapter V of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 351 et seq.) is amended by inserting after section 510 the following: ``SEC. 511. <<NOTE: Deadlines. 21 USC 360a.>> CLINICAL TRIAL
GUIDANCE FOR ANTIBIOTIC DRUGS.
``(a) In General.--Not later than 1 year after the date of the enactment of this section, the Secretary shall issue guidance for the conduct of clinical trials with respect to antibiotic drugs, including antimicrobials to treat acute bacterial sinusitis, acute bacterial otitis media, and acute bacterial exacerbation of chronic bronchitis. Such guidance shall indicate the appropriate models and valid surrogate markers.
``(b) Review.--Not later than 5 years after the date of the enactment of this section, the Secretary shall review and update the guidance described under subsection (a) to reflect developments in scientific and medical information and technology.''. SEC. 912. PROHIBITION AGAINST FOOD TO WHICH DRUGS OR BIOLOGICAL
PRODUCTS HAVE BEEN ADDED.
(a) Prohibition.--Section 301 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 331), as amended by section 901(d), is amended by adding at the end the following:
``(ll) The introduction or delivery for introduction into interstate commerce of any food to which has been added a drug approved under section 505, a biological product licensed under section 351 of the Public Health Service Act, or a drug or a biological product for which substantial clinical investigations have been instituted
[[Page 121 STAT. 952]]
and for which the existence of such investigations has been made public,
unless-- ``(1) such drug or such biological product was marketed in
food before any approval of the drug under section 505, before licensure of the biological product under such section 351, and before any substantial clinical investigations involving the drug or the biological product have been instituted;
``(2) the Secretary, in the Secretary's discretion, has issued a regulation, after notice and comment, approving the
use of such drug or such biological product in the food;
``(3) the use of the drug or the biological product in the food is to enhance the safety of the food to which the drug or the biological product is added or applied and not to have independent biological or therapeutic effects on humans, and
the use is in conformity with--
``(A) a regulation issued under section 409 prescribing conditions of safe use in food;
``(B) a regulation listing or affirming conditions under which the use of the drug or the biological product in food is generally recognized as safe;
``(C) the conditions of use identified in a notification to the Secretary of a claim of exemption from the premarket approval requirements for food additives based on the notifier's determination that
the use of the drug or the biological product in food is generally recognized as safe, provided that the Secretary has not questioned the general recognition of safety determination in a letter to the notifier;
``(D) a food contact substance notification that is effective under section 409(h); or
``(E) such drug or biological product had been marketed for smoking cessation prior to the date of the enactment of the Food and Drug Administration
Amendments Act of 2007; or
``(4) the drug is a new animal drug whose use is not unsafe under section 512.''.
(b) Conforming Changes.--The Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.) is amended--
(1) <<NOTE: 21 USC 334.>> in section 304(a)(1), by striking ``section 404 or 505'' and inserting ``section 301(ll), 404, or 505''; and
(2) <<NOTE: 21 USC 381.>> in section 801(a), by striking ``is adulterated, misbranded, or in violation of section 505,'' and inserting ``is adulterated, misbranded, or in violation of section 505, or prohibited from introduction or delivery for introduction into interstate commerce under section 301(ll),''.
SEC. 913. ASSURING PHARMACEUTICAL SAFETY.
Chapter V of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 351 et seq.), as amended in section 403, is amended by inserting after section 505C the following: ``SEC. 505D. <<NOTE: 21 USC 355e.>> PHARMACEUTICAL SECURITY.
``(a) In <<NOTE: Standards.>> General.--The Secretary shall develop standards and identify and validate effective technologies for the purpose of securing the drug supply chain against counterfeit, diverted, subpotent, substandard, adulterated, misbranded, or expired drugs.
``(b) Standards Development.--
[[Page 121 STAT. 953]]
``(1) In general.--The Secretary shall, in consultation with
the agencies specified in paragraph (4), manufacturers, distributors, pharmacies, and other supply chain stakeholders, prioritize and develop standards for the identification, validation, authentication, and tracking and tracing of prescription drugs.
``(2) Standardized <<NOTE: Deadline.>> numeral identifier.- -
Not later than 30 months after the date of the enactment of the Food and Drug Administration Amendments Act of 2007, the Secretary shall develop a standardized numerical identifier (which, to the extent practicable, shall be harmonized with international consensus standards for such an identifier) to be applied to a prescription drug at the point of manufacturing
and repackaging (in which case the numerical identifier shall be linked to the numerical identifier applied at the point of manufacturing) at the package or pallet level, sufficient to facilitate the identification, validation, authentication, and tracking and tracing of the prescription drug.
``(3) Promising technologies.--The standards developed under
this subsection shall address promising technologies, which may include--
``(A) radio frequency identification technology; ``(B) nanotechnology; ``(C) encryption technologies; and ``(D) other track-and-trace or authentication
technologies. ``(4) Interagency collaboration.--In carrying out this
subsection, the Secretary shall consult with Federal health and security agencies, including--
``(A) the Department of Justice; ``(B) the Department of Homeland Security; ``(C) the Department of Commerce; and ``(D) other appropriate Federal and State agencies.
``(c) Inspection and Enforcement.-- ``(1) In general.--The Secretary shall expand and enhance
the resources and facilities of agency components of the Food and Drug Administration involved with regulatory and criminal enforcement of this Act to secure the drug supply chain against counterfeit, diverted, subpotent, substandard, adulterated, misbranded, or expired drugs including biological products and active pharmaceutical ingredients from domestic and foreign
sources. ``(2) Activities.--The Secretary shall undertake enhanced
and joint enforcement activities with other Federal and State agencies, and establish regional capacities for the validation of prescription drugs and the inspection of the prescription drug supply chain.
``(d) Definition.--In this section, the term `prescription drug' means a drug subject to section 503(b)(1).''. SEC. 914. CITIZEN PETITIONS AND PETITIONS FOR STAY OF AGENCY
ACTION.
(a) In General.--Section 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355), as amended by section 901(a), is amended by adding at the end the following:
``(q) Petitions and Civil Actions Regarding Approval of Certain Applications.--
[[Page 121 STAT. 954]]
``(1) In general.-- ``(A) Determination.--The Secretary shall not delay
approval of a pending application submitted under subsection (b)(2) or (j) because of any request to take any form of action relating to the application, either before or during consideration of the request, unless--
``(i) the request is in writing and is a petition submitted to the Secretary pursuant to section 10.30 or 10.35 of title 21, Code of Federal Regulations (or any successor regulations); and
``(ii) the Secretary determines, upon reviewing the petition, that a delay is necessary to protect the public health.
``(B) Notification.--If the <<NOTE: Deadline.>> Secretary determines under subparagraph (A) that a delay is necessary with respect to an application, the Secretary shall provide to the applicant, not later than 30 days after making such determination, the following information:
``(i) Notification of the fact that a determination under subparagraph (A) has been made.
``(ii) If applicable, any clarification or additional data that the applicant should submit to the docket on the petition to allow the Secretary to review the petition promptly.
``(iii) A brief summary of the specific substantive issues raised in the petition which form the basis of the determination.
``(C) Format.--The information described in subparagraph (B) shall be conveyed via either, at the discretion of the Secretary--
``(i) a document; or ``(ii) a meeting with the applicant involved.
``(D) Public disclosure.--Any information conveyed
by the Secretary under subparagraph (C) shall be considered part of the application and shall be subject to the disclosure requirements applicable to
information in such application.
``(E) Denial based on intent to delay.--If the Secretary determines that a petition or a supplement to the petition was submitted with the primary purpose of delaying the approval of an application and the
petition does not on its face raise valid scientific or regulatory issues, the Secretary may deny the petition at any point based on such determination. The Secretary may issue guidance to describe the factors that will be used to determine under this subparagraph whether a petition is submitted with the primary purpose of delaying the approval of an application.
``(F) Final <<NOTE: Deadline.>> agency action.--The Secretary shall take final agency action on a petition not later than 180 days after the date on which the petition is submitted. The Secretary shall not extend such period for any reason, including--
``(i) any determination made under subparagraph (A);
[[Page 121 STAT. 955]]
``(ii) the submission of comments relating to the petition or supplemental information supplied by the petitioner; or
``(iii) the consent of the petitioner. ``(G) Extension of 30-month period.--If the filing
of an application resulted in first-applicant status under subsection (j)(5)(D)(i)(IV) and approval of the application was delayed because of a petition, the 30- month period under such subsection is deemed to be extended by a period of time equal to the period beginning on the date on which the Secretary received the petition and ending on the date of final agency action on the petition (inclusive of such beginning and ending dates), without regard to whether the Secretary grants, in whole or in part, or denies, in whole or in part, the petition.
``(H) Certification.--The Secretary shall not consider a petition for review unless the party submitting such petition does so in written form and
the subject document is signed and contains the following certification: `I certify that, to my best knowledge
and belief: (a) this petition includes all information and views upon which the petition relies; (b) this petition includes representative data and/or information known
to the petitioner which are unfavorable to the petition; and (c) I have taken reasonable steps to ensure that
any
representative data and/or information which are unfavorable to the petition were disclosed to me. I further certify that the information upon which I have based the action requested herein first became known to the party on whose behalf this petition is submitted on or about the following date: __________. If I received or expect to receive payments, including cash and other forms of consideration, to file this information or its contents, I received or expect to receive those
payments from the following persons or organizations: _____________. I verify under penalty of perjury that the foregoing is true and correct as of the date of the submission of this petition.', with the date on which such information first became known to such party and the names of such persons or organizations inserted in the first and second blank space, respectively.
``(I) Verification.--The Secretary shall not accept for review any supplemental information or comments on
a petition unless the party submitting such information
or comments does so in written form and the subject document is signed and contains the following verification: `I certify that, to my best knowledge and belief: (a) I have not intentionally delayed submission of this document or its contents; and (b) the information upon which I have based the action
requested herein first became known to me on or about __________. If I received or expect to receive payments, including cash and other forms of consideration, to file this information or its contents, I received or expect to receive those payments from the following persons or organizations: _____. I verify under penalty of perjury that the foregoing is true and correct as of the date
of the submission of this petition.', with the date on which such information first became known
[[Page 121 STAT. 956]]
to the party and the names of such persons or organizations inserted in the first and second blank space, respectively.
``(2) Exhaustion of administrative remedies.-- ``(A) Final agency action within 180 days.--The
Secretary shall be considered to have taken final agency
action on a petition if-- ``(i) during the 180-day period referred to
in paragraph (1)(F), the Secretary makes a final decision within the meaning of section 10.45(d)
of title 21, Code of Federal Regulations (or any successor regulation); or
``(ii) such period expires without the Secretary having made such a final decision.
``(B) Dismissal of <<NOTE: Courts.>> certain civil actions.--If a civil action is filed against the Secretary with respect to any issue raised in the petition before the Secretary has taken final agency action on the petition within the meaning of subparagraph (A), the court shall dismiss without prejudice the action for failure to exhaust administrative remedies.
``(C) Administrative record.--For purposes of judicial review related to the approval of an application for which a petition under paragraph (1)
was submitted, the administrative record regarding any
issue raised by the petition shall include--
``(i) the petition filed under paragraph (1) and any supplements and comments thereto;
``(ii) the Secretary's response to such petition, if issued; and
``(iii) other information, as designated by the Secretary, related to the Secretary's determinations regarding the issues raised in
such petition, as long as the information was considered by the agency no later than the date
of final agency action as defined under subparagraph (2)(A), and regardless of whether the Secretary responded to the petition at or before the approval of the application at issue in the petition.
``(3) Annual report on delays in approvals per petitions.-- The Secretary shall annually submit to the Congress a report that specifies--
``(A) the number of applications that were approved during the preceding 12-month period;
``(B) the number of such applications whose effective dates were delayed by petitions referred to
in paragraph (1) during such period;
``(C) the number of days by which such applications were so delayed; and
``(D) the number of such petitions that were submitted during such period.
``(4) Exceptions.--This subsection does not apply to-- ``(A) a petition that relates solely to the timing
of the approval of an application pursuant to subsection
(j)(5)(B)(iv); or ``(B) a petition that is made by the sponsor of an
application and that seeks only to have the Secretary take or refrain from taking any form of action with respect to that application.
[[Page 121 STAT. 957]]
``(5) Definitions.-- ``(A) Application.--For purposes of this
subsection, the term `application' means an application submitted under subsection (b)(2) or (j).
``(B) Petition.--For purposes of this subsection, other than paragraph (1)(A)(i), the term `petition' means a request described in paragraph (1)(A)(i).''.
(b) Report.--Not later than 1 year after the date of the enactment of this Act, the Secretary of Health and Human Services shall submit a report to the Congress on ways to encourage the early submission of petitions under section 505(q), as added by subsection (a). SEC. 915. POSTMARKET DRUG SAFETY INFORMATION FOR PATIENTS AND
PROVIDERS.
Section 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355), as amended by section 914(a), is amended by adding at the end the following:
``(r) Postmarket Drug Safety Information for Patients and Providers.--
``(1) Establishment.--Not <<NOTE: Deadline. Website.>> later
than 1 year after the date of the enactment of the Food and Drug
Administration Amendments Act of 2007, the Secretary shall improve the transparency of information about drugs and allow patients and health care providers better access to information about drugs by developing and maintaining an Internet Web site that--
``(A) provides links to drug safety information listed in paragraph (2) for prescription drugs that are approved under this section or licensed under section 351 of the Public Health Service Act; and
``(B) improves communication of drug safety information to patients and providers.
``(2) Internet web site.--The Secretary shall carry out paragraph (1) by--
``(A) developing and maintaining an accessible, consolidated Internet Web site with easily searchable drug safety information, including the information
found on United States Government Internet Web sites, such as the United States National Library of Medicine's Daily Med and Medline Plus Web sites, in addition to other such Web sites maintained by the Secretary;
``(B) ensuring that the information provided on the Internet Web site is comprehensive and includes, when available and appropriate--
``(i) patient labeling and patient packaging inserts;
``(ii) a link to a list of each drug, whether approved under this section or licensed under
such section 351, for which a Medication Guide, as provided for under part 208 of title 21, Code of
Federal Regulations (or any successor regulations), is required;
``(iii) a link to the registry and results data bank provided for under subsections (i) and (j) of section 402 of the Public Health Service Act;
``(iv) the most recent safety information and alerts issued by the Food and Drug Administration for drugs approved by the Secretary under this section, such as product recalls, warning
letters, and import alerts;
[[Page 121 STAT. 958]]
``(v) publicly available information about implemented RiskMAPs and risk evaluation and mitigation strategies under subsection (o);
``(vi) guidance documents and regulations related to drug safety; and
``(vii) other material determined appropriate by the Secretary;
``(C) providing access to summaries of the assessed and aggregated data collected from the active surveillance infrastructure under subsection (k)(3) to provide information of known and serious side-effects for drugs approved under this section or licensed under such section 351;
``(D) <<NOTE: Reports.>> preparing, by 18 months after approval of a drug or after use of the drug by 10,000 individuals, whichever is later, a summary analysis of the adverse drug reaction reports received for the drug, including identification of any new risks not previously identified, potential new risks, or
known risks reported in unusual number;
``(E) <<NOTE: Reports.>> enabling patients, providers, and drug sponsors to submit adverse event reports through the Internet Web site;
``(F) providing educational materials for patients and providers about the appropriate means of disposing of expired, damaged, or unusable medications; and
``(G) supporting initiatives that the Secretary determines to be useful to fulfill the purposes of the Internet Web site.
``(3) Posting of <<NOTE: Deadline.>> drug labeling.--The Secretary shall post on the Internet Web site established under paragraph (1) the approved professional labeling and any required patient labeling of a drug approved under this section or licensed under such section 351 not later than 21 days after the date the drug is approved or licensed, including in a supplemental application with respect to a labeling change.
``(4) Private sector resources.--To ensure development of the Internet Web site by the date described in paragraph (1), the Secretary may, on a temporary or permanent basis, implement systems or products developed by private entities.
``(5) Authority for contracts.--The Secretary may enter into
contracts with public and private entities to fulfill the requirements of this subsection.
``(6) Review.--The Advisory Committee on Risk Communication under section 567 shall, on a regular basis, perform a comprehensive review and evaluation of the types of risk communication information provided on the Internet Web site established under paragraph (1) and, through other means, shall identify, clarify, and define the purposes and types of information available to facilitate the efficient flow of information to patients and providers, and shall recommend ways for the Food and Drug Administration to work with outside entities to help facilitate the dispensing of risk
communication information to patients and providers.''.
SEC. 916. ACTION PACKAGE FOR APPROVAL.
Section 505(l) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355(l)) is amended by--
[[Page 121 STAT. 959]]
(1) redesignating paragraphs (1), (2), (3), (4), and (5) as subparagraphs (A), (B), (C), (D), and (E), respectively;
(2) striking ``(l) Safety and'' and inserting ``(l)(1) Safety and''; and
(3) adding at the end the following:
``(2) Action <<NOTE: Publication. Website. Deadlines.>> Package for Approval.--
``(A) Action package.--The Secretary shall publish the action package for approval of an application under subsection (b) or section 351 of the Public Health Service Act on the Internet Web site of the Food and Drug Administration--
``(i) not later than 30 days after the date of approval of such application for a drug no active ingredient (including any ester or salt of the active ingredient) of which has been approved in any other application under this section or section 351 of the Public Health Service Act; and
``(ii) not later than 30 days after the third request for such action package for approval received under section 552 of title 5, United States Code, for any other drug.
``(B) Immediate publication of summary review.-- Notwithstanding subparagraph (A), the Secretary shall publish, on the Internet Web site of the Food and Drug Administration, the materials described in subparagraph (C)(iv) not later than 48 hours after the date of approval of the drug, except where such materials require redaction by the Secretary.
``(C) Contents.--An action package for approval of an application under subparagraph (A) shall be dated and shall include the following:
``(i) Documents generated by the Food and Drug Administration related to review of the application.
``(ii) Documents pertaining to the format and
content of the application generated during drug development.
``(iii) Labeling submitted by the applicant. ``(iv) A summary review that documents conclusions
from all reviewing disciplines about the drug, noting any critical issues and disagreements with the
applicant and within the review team and how they were resolved, recommendations for action, and an explanation of any nonconcurrence with review conclusions.
``(v) The Division Director and Office Director's decision document which includes--
``(I) a brief statement of concurrence with the summary review;
``(II) a separate review or addendum to the review if disagreeing with the summary review;
and ``(III) a separate review or addendum to the
review to add further analysis. ``(vi) Identification by name of each officer or
employee of the Food and Drug Administration who-- ``(I) participated in the decision to approve
the application; and ``(II) consents to have his or her name
included in the package. ``(D) Review.--A scientific review of an application is
considered the work of the reviewer and shall not be altered by management or the reviewer once final.
[[Page 121 STAT. 960]]
``(E) Confidential information.--This paragraph does not authorize the disclosure of any trade secret, confidential commercial or financial information, or other matter listed in section 552(b) of title 5, United States Code.''.
SEC. 917. RISK COMMUNICATION.
Subchapter E of chapter V of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360bbb et seq.), as amended by section 603, is amended by adding at the end the following: ``SEC. 567. <<NOTE: 21 USC 360bbb-6.>> RISK COMMUNICATION.
``(a) Advisory <<NOTE: Establishment.>> Committee on Risk Communication.--
``(1) In general.--The Secretary shall establish an advisory
committee to be known as the `Advisory Committee on Risk Communication' (referred to in this section as the
`Committee'). ``(2) Duties of committee.--The Committee shall advise the
Commissioner on methods to effectively communicate risks associated with the products regulated by the Food and Drug Administration.
``(3) Members.--The Secretary shall ensure that the Committee is composed of experts on risk communication, experts
on the risks described in subsection (b), and representatives of
patient, consumer, and health professional organizations. ``(4) Permanence of committee.--Section 14 of the Federal
Advisory Committee Act shall not apply to the Committee established under this subsection.
``(b) Partnerships for Risk Communication.-- ``(1) In general.--The Secretary shall partner with
professional medical societies, medical schools, academic medical centers, and other stakeholders to develop robust and multi-faceted systems for communication to health care
providers about emerging postmarket drug risks.
``(2) Partnerships.--The systems developed under paragraph (1) shall--
``(A) account for the diversity among physicians in terms of practice, willingness to adopt technology, and medical specialty; and
``(B) include the use of existing communication channels, including electronic communications, in place at the Food and Drug Administration.''.
SEC. 918. <<NOTE: 21 USC 355.>> REFERRAL TO ADVISORY COMMITTEE.
Section 505 of the Federal Food, Drug, and Cosmetic Act, as amended by section 915, is further amended by adding at the end the following:
``(s) Referral to Advisory Committee.--Prior to the approval of a drug no active ingredient (including any ester or salt of the active ingredient) of which has been approved in any other application under this section or section 351 of the Public Health Service Act, the Secretary shall--
``(1) refer such drug to a Food and Drug Administration advisory committee for review at a meeting of such advisory committee; or
``(2) if the Secretary does not refer such a drug to a Food and Drug Administration advisory committee prior to the
approval of the drug, provide in the action letter on the application
for the drug a summary of the reasons why the Secretary
[[Page 121 STAT. 961]]
did not refer the drug to an advisory committee prior to approval.''.
SEC. 919. RESPONSE TO THE INSTITUTE OF MEDICINE.
(a) In <<NOTE: Deadline. Reports.>> General.--Not later than 1 year after the date of the enactment of this title, the Secretary shall issue a report responding to the 2006 report of the Institute of Medicine entitled ``The Future of Drug Safety--Promoting and Protecting the Health of the Public''.
(b) Content of Report.--The report issued by the Secretary under subsection (a) shall include--
(1) an update on the implementation by the Food and Drug
Administration of its plan to respond to the Institute of Medicine report described under such subsection; and
(2) an assessment of how the Food and Drug Administration has implemented--
(A) the recommendations described in such Institute of Medicine report; and
(B) the requirement under section 505-1(c)(2) of the
Federal Food, Drug, and Cosmetic Act (as added by this title), that the appropriate office responsible for reviewing a drug and the office responsible for postapproval safety with respect to the drug work together to assess, implement, and ensure compliance with the requirements of such section 505-1.
SEC. 920. DATABASE FOR AUTHORIZED GENERIC DRUGS.
Section 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355), as amended by section 918, is further amended by adding at the end the following:
``(t) Database for Authorized Generic Drugs.-- ``(1) In general.--
``(A) Publication.-- The <<NOTE: Deadlines.>> Commissioner shall--
``(i) not later than 9 months after the date of the enactment of the Food and Drug Administration Amendments Act of 2007, publish a complete list on the Internet Web site of the
Food and Drug Administration of all authorized generic drugs (including drug trade name, brand company manufacturer, and the date the authorized generic drug entered the market); and
``(ii) update the list quarterly to include each authorized generic drug included in an
annual report submitted to the Secretary by the sponsor of a listed drug during the preceding 3-month period.
``(B) Notification.--The Commissioner shall notify relevant Federal agencies, including the Centers for Medicare & Medicaid Services and the Federal Trade Commission, when the Commissioner first publishes the information described in subparagraph (A) that the information has been published and that the information will be updated quarterly.
``(2) Inclusion.--The Commissioner shall include in the list
described in paragraph (1) each authorized generic drug included
in an annual report submitted to the Secretary by the sponsor of
a listed drug after January 1, 1999. ``(3) Authorized generic drug.--In this section, the term
`authorized generic drug' means a listed drug (as that term is used in subsection (j)) that--
[[Page 121 STAT. 962]]
``(A) has been approved under subsection (c); and ``(B) is marketed, sold, or distributed directly or
indirectly to retail class of trade under a different labeling, packaging (other than repackaging as the listed drug in blister packs, unit doses, or similar packaging for use in institutions), product code, labeler code, trade name, or trade mark than the listed drug.''.
SEC. 921. ADVERSE DRUG REACTION REPORTS AND POSTMARKET SAFETY.
Subsection (k) of section 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355), as amended by section 905, is amended by adding at the end the following:
``(5) The Secretary shall-- ``(A) conduct regular, bi-weekly screening of the
Adverse Event Reporting System database and post a quarterly report on the Adverse Event Reporting System Web site of any new safety information or potential signal of a serious risk identified by Adverse Event Reporting System within the last quarter;
``(B) report to Congress not later than 2 year after
the date of the enactment of the Food and Drug Administration Amendments Act of 2007 on procedures and processes of the Food and Drug Administration for addressing ongoing post market safety issues identified by the Office of Surveillance and Epidemiology and how recommendations of the Office of Surveillance and Epidemiology are handled within the agency; and
``(C) on an annual basis, review the entire backlog of postmarket safety commitments to determine which commitments require revision or should be eliminated, report to the Congress on these determinations, and assign start dates and estimated completion dates for such commitments.''.
TITLE X--FOOD SAFETY
SEC. 1001. <<NOTE: 21 USC 2101.>> FINDINGS.
Congress finds that-- (1) the safety and integrity of the United States food
supply are vital to public health, to public confidence in the food supply, and to the success of the food sector of the Nation's economy;
(2) illnesses and deaths of individuals and companion animals caused by contaminated food--
(A) have contributed to a loss of public confidence in food safety; and
(B) have caused significant economic losses to manufacturers and producers not responsible for contaminated food items;
(3) the task of preserving the safety of the food supply of the United States faces tremendous pressures with regard to--
(A) emerging pathogens and other contaminants and
the ability to detect all forms of contamination;
[[Page 121 STAT. 963]]
(B) an increasing volume of imported food from a wide variety of countries; and
(C) a shortage of adequate resources for monitoring and inspection;
(4) according to the Economic Research Service of the Department of Agriculture, the United States is increasing the amount of food that it imports such that--
(A) from 2003 to 2007, the value of food imports has
increased from $45,600,000,000 to $64,000,000,000; and (B) imported food accounts for 13 percent of the
average American diet including 31 percent of fruits, juices, and nuts, 9.5 percent of red meat, and 78.6 percent of fish and shellfish; and
(5) the number of full-time equivalent Food and Drug Administration employees conducting inspections has decreased from 2003 to 2007.
SEC. 1002. <<NOTE: 21 USC 2102.>> ENSURING THE SAFETY OF PET FOOD.
(a) Processing and <<NOTE: Deadline. Regulations.>> Ingredient Standards.--Not later than 2 years after the date of the enactment of this Act, the Secretary of Health and Human Services (referred to in this title as the ``Secretary''), in consultation with the Association of American Feed Control Officials and other relevant stakeholder groups, including veterinary medical associations, animal health organizations, and pet food manufacturers, shall by regulation establish--
(1) ingredient standards and definitions with respect to pet
food; (2) processing standards for pet food; and (3) updated standards for the labeling of pet food that
include nutritional and ingredient information.
(b) Early <<NOTE: Deadline.>> Warning Surveillance Systems and Notification During Pet Food Recalls.--Not later than 1 year after the date of the enactment of this Act, the Secretary shall establish an early warning and surveillance system to identify adulteration of the pet food supply and outbreaks of illness associated with pet food. In establishing such system, the Secretary shall--
(1) consider using surveillance and monitoring mechanisms similar to, or in coordination with, those used to monitor
human or animal health, such as the Foodborne Diseases Active Surveillance Network (FoodNet) and PulseNet of the Centers for Disease Control and Prevention, the Food Emergency Response Network of the Food and Drug Administration and the Department of Agriculture, and the National Animal Health Laboratory Network of the Department of Agriculture;
(2) consult with relevant professional associations and private sector veterinary hospitals;
(3) work with the National Companion Animal Surveillance Program, the Health Alert Network, or other notification
networks as appropriate to inform veterinarians and relevant stakeholders during any recall of pet food; and
(4) use such information and conduct such other activities as the Secretary deems appropriate.
SEC. 1003. <<NOTE: 21 USC 2103.>> ENSURING EFFICIENT AND EFFECTIVE COMMUNICATIONS DURING A RECALL.
The Secretary shall, during an ongoing recall of human or pet food regulated by the Secretary--
[[Page 121 STAT. 964]]
(1) work with companies, relevant professional associations,
and other organizations to collect and aggregate information pertaining to the recall;
(2) use existing networks of communication, including electronic forms of information dissemination, to enhance the quality and speed of communication with the public; and
(3) <<NOTE: Website.>> post information regarding recalled human and pet foods on the Internet Web site of the Food and Drug Administration in a single location, which shall include a searchable database of recalled human foods and a searchable database of recalled pet foods, that is easily accessed and understood by the public.
SEC. 1004. <<NOTE: 21 USC 2104.>> STATE AND FEDERAL COOPERATION.
(a) In General.--The Secretary shall work with the States in undertaking activities and programs that assist in improving the safety of food, including fresh and processed produce, so that State food safety programs and activities conducted by the Secretary function in a coordinated and cost-effective manner. With the assistance provided under subsection (b), the Secretary shall encourage States to--
(1) establish, continue, or strengthen State food safety programs, especially with respect to the regulation of retail commercial food establishments; and
(2) establish procedures and requirements for ensuring that processed produce under the jurisdiction of State food safety programs is not unsafe for human consumption.
(b) Assistance.--The Secretary may provide to a State, for planning, developing, and implementing such a food safety program--
(1) advisory assistance; (2) technical assistance, training, and laboratory
assistance (including necessary materials and equipment); and (3) financial and other assistance.
(c) Service Agreements.--The Secretary may, under an agreement entered into with a Federal, State, or local agency, use, on a reimbursable basis or otherwise, the personnel, services, and facilities of the agency to carry out the responsibilities of the agency under this section. An agreement entered into with a State agency under this subsection may provide for training of State employees. SEC. 1005. <<NOTE: 21 USC 350f note.>> REPORTABLE FOOD REGISTRY.
(a) Findings.--Congress makes the following findings: (1) In 1994, Congress passed the Dietary Supplement Health
and Education Act of 1994 (Public Law 103-417) to provide the Food and Drug Administration the legal framework which is intended to ensure that dietary supplements are safe and properly labeled foods.
(2) In 2006, Congress passed the Dietary Supplement and Nonprescription Drug Consumer Protection Act (Public Law 109- 462) to establish a mandatory reporting system of serious adverse events for nonprescription drugs and dietary
supplements sold and consumed in the United States.
(3) The adverse event reporting system created under the Dietary Supplement and Nonprescription Drug Consumer Protection Act is intended to serve as an early warning system for potential public health issues associated with the use of these products.
[[Page 121 STAT. 965]]
(4) A reliable mechanism to track patterns of adulteration in food would support efforts by the Food and Drug Administration to target limited inspection resources to
protect the public health.
(b) In General.--Chapter IV of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 341 et seq.) is amended by adding at the end the following: ``SEC. 417. <<NOTE: 21 USC 350f.>> REPORTABLE FOOD REGISTRY.
``(a) Definitions.--In this section: ``(1) Responsible party.--The term `responsible party',
with respect to an article of food, means a person that submits the registration under section 415(a) for a food facility that is required to register under section 415(a), at which such
article of food is manufactured, processed, packed, or held.
``(2) Reportable food.--The term `reportable food' means an article of food (other than infant formula) for which there is
a reasonable probability that the use of, or exposure to, such article of food will cause serious adverse health consequences or death to humans or animals.
``(b) Establishment.-- ``(1) In <<NOTE: Deadline.>> general.--Not later than 1
year after the date of the enactment of this section, the Secretary shall establish within the Food and Drug Administration a Reportable Food Registry to which instances of reportable food may be submitted by the Food and Drug Administration after receipt of reports under subsection (d), via an electronic portal, from--
``(A) Federal, State, and local public health
officials; or ``(B) responsible parties.
``(2) Review by secretary.--The Secretary shall promptly review and assess the information submitted under paragraph (1) for the purposes of identifying reportable food, submitting entries to the Reportable Food Registry, acting under
subsection (c), and exercising other existing food safety authorities
under this Act to protect the public health.
``(c) Issuance of an Alert by the Secretary.-- ``(1) In general.--The Secretary shall issue, or cause to
be issued, an alert or a notification with respect to a reportable food using information from the Reportable Food Registry as the Secretary deems necessary to protect the public health.
``(2) Effect.--Paragraph (1) shall not affect the authority of the Secretary to issue an alert or a notification under any other provision of this Act.
``(d) Reporting and Notification.-- ``(1) In <<NOTE: Deadline.>> general.--Except as provided
in paragraph (2), as soon as practicable, but in no case later
than 24 hours after a responsible party determines that an article
of food is a reportable food, the responsible party shall--
``(A) submit a report to the Food and Drug Administration through the electronic portal
established under subsection (b) that includes the data elements described in subsection (e) (except the elements described in paragraphs (8), (9), and (10) of such subsection); and
``(B) investigate the cause of the adulteration if the adulteration of the article of food may have originated with the responsible party.
[[Page 121 STAT. 966]]
``(2) No report required.--A responsible party is not required to submit a report under paragraph (1) if--
``(A) the adulteration originated with the responsible party;
``(B) the responsible party detected the adulteration prior to any transfer to another person of such article of food; and
``(C) the responsible party-- ``(i) corrected such adulteration; or ``(ii) destroyed or caused the destruction of
such article of food. ``(3) Reports by public health officials.--A Federal,
State, or local public health official may submit a report about a reportable food to the Food and Drug Administration through the
electronic portal established under subsection (b) that includes
the data elements described in subsection (e) that the official is able to provide.
``(4) Report number.--The Secretary shall ensure that, upon submission of a report under paragraph (1) or (3), a unique number is issued through the electronic portal established
under subsection (b) to the person submitting such report, by which the Secretary is able to link reports about the reportable food submitted and amended under this subsection and identify the supply chain for such reportable food.
``(5) Review.--The Secretary shall promptly review a report submitted under paragraph (1) or (3).
``(6) Response to report submitted by a responsible party.- -
After consultation with the responsible party that submitted a report under paragraph (1), the Secretary may require such responsible party to perform, as soon as practicable, but in no case later than a time specified by the Secretary, 1 or more of the following:
``(A) Amend the report submitted by the responsible party under paragraph (1) to include the data element described in subsection (e)(9).
``(B) Provide a notification-- ``(i) to the immediate previous source of the
article of food, if the Secretary deems necessary;
``(ii) to the immediate subsequent recipient of the article of food, if the Secretary deems necessary; and
``(iii) that includes-- ``(I) the data elements described
in subsection (e) that the Secretary deems necessary;
``(II) the actions described under paragraph (7) that the recipient of the notification shall perform, as required by the Secretary; and
``(III) any other information that the Secretary may require.
``(7) Subsequent reports and notifications.--Except as provided in paragraph (8), the Secretary may require a responsible party to perform, as soon as practicable, but in no case later than a time specified by the Secretary, after the responsible party receives a notification under subparagraph
(C) or paragraph (6)(B), 1 or more of the following:
``(A) Submit a report to the Food and Drug Administration through the electronic portal
established under subsection (b) that includes those data elements described
[[Page 121 STAT. 967]]
in subsection (e) and other information that the Secretary deems necessary.
``(B) Investigate the cause of the adulteration if the adulteration of the article of food may have originated with the responsible party.
``(C) Provide a notification-- ``(i) to the immediate previous source of the
article of food, if the Secretary deems necessary;
``(ii) to the immediate subsequent recipient of the article of food, if the Secretary deems necessary; and
``(iii) that includes-- ``(I) the data elements described
in subsection (e) that the Secretary deems necessary;
``(II) the actions described under this paragraph that the recipient of
the notification shall perform, as required by the Secretary; and
``(III) any other information that the Secretary may require.
``(8) Amended report.--If a responsible party receives a notification under paragraph (6)(B) or paragraph (7)(C) with respect to an article of food after the responsible party has submitted a report to the Food and Drug Administration under paragraph (1) with respect to such article of food--
``(A) the responsible party is not required to submit an additional report or make a notification
under paragraph (7); and
``(B) the responsible party shall amend the report submitted by the responsible party under paragraph (1) to include the data elements described in paragraph
(9), and, with respect to both such notification and such report, paragraph (11) of subsection (e).
``(e) Data Elements.--The data elements described in this subsection are the following:
``(1) The registration numbers of the responsible party under section 415(a)(3).
``(2) The date on which an article of food was determined to
be a reportable food. ``(3) A description of the article of food including the
quantity or amount. ``(4) The extent and nature of the adulteration. ``(5) If the adulteration of the article of food may have
originated with the responsible party, the results of the investigation required under paragraph (1)(B) or (7)(B) of subsection (d), as applicable and when known.
``(6) The disposition of the article of food, when known. ``(7) Product information typically found on packaging
including product codes, use-by dates, and names of manufacturers, packers, or distributors sufficient to identify the article of food.
``(8) Contact information for the responsible party. ``(9) The contact information for parties directly linked
in the supply chain and notified under paragraph (6)(B) or (7)(C) of subsection (d), as applicable.
``(10) The information required by the Secretary to be included in a notification provided by the responsible party involved under paragraph (6)(B) or (7)(C) of subsection (d) or required in a report under subsection (d)(7)(A).
[[Page 121 STAT. 968]]
``(11) The unique number described in subsection (d)(4).
``(f) Coordination of Federal, State, and Local Efforts.-- ``(1) Department of agriculture.--In implementing this
section, the Secretary shall-- ``(A) share information and coordinate regulatory
efforts with the Department of Agriculture; and ``(B) if the Secretary receives a report submitted
about a food within the jurisdiction of the Department of Agriculture, promptly provide such report to the Department of Agriculture.
``(2) States and localities.--In implementing this section, the Secretary shall work with the State and local public health officials to share information and coordinate regulatory efforts, in order to--
``(A) help to ensure coverage of the safety of the food supply chain, including those food establishments regulated by the States and localities that are not required to register under section 415; and
``(B) reduce duplicative regulatory efforts.
``(g) Maintenance and Inspection of Records.--The responsible party shall maintain records related to each report received, notification made, and report submitted to the Food and Drug Administration under this section for 2 years. A responsible party shall, at the request of the Secretary, permit inspection of such records as provided for section 414.
``(h) Request for <<NOTE: Applicability.>> Information.--Except as provided by section 415(a)(4), section 552 of title 5, United States Code, shall apply to any request for information regarding a record in the Reportable Food Registry.
``(i) Safety Report.--A report or notification under subsection (d) shall be considered to be a safety report under section 756 and may be accompanied by a statement, which shall be part of any report released for public disclosure, that denies that the report or the notification constitutes an admission that the product involved caused or contributed to a death, serious injury, or serious illness.
``(j) Admission.--A report or notification under this section shall not be considered an admission that the article of food involved is
adulterated or caused or contributed to a death, serious injury, or serious illness.
``(k) Homeland Security Notification.--If, after receiving a report under subsection (d), the Secretary believes such food may have been deliberately adulterated, the Secretary shall immediately notify the Secretary of Homeland Security. The Secretary shall make relevant information from the Reportable Food Registry available to the Secretary of Homeland Security.''.
(c) Definition.--Section 201(ff) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321(ff)) is amended by striking ``section 201(g)'' and inserting ``sections 201(g) and 417''.
(d) Prohibited Acts.--Section 301 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 331), as amended by section 912, is further amended--
(1) in subsection (e), by-- (A) striking ``414,'' and inserting ``414,
417(g),''; and (B) striking ``414(b)'' and inserting ``414(b),
417''; and (2) by adding at the end the following:
[[Page 121 STAT. 969]]
``(mm) The failure to submit a report or provide a notification required under section 417(d).
``(nn) The falsification of a report or notification required under section 417(d).''.
(e) Effective <<NOTE: 21 USC 350f note.>> Date.--The requirements of section 417(d) of the Federal Food, Drug, and Cosmetic Act, as added by subsection (a), shall become effective 1 year after the date of the enactment of this Act.
(f) Guidance.--Not <<NOTE: Deadline. 21 USC 350f note.>> later than 9 months after the date of the enactment of this Act, the Secretary shall issue a guidance to industry about submitting reports to the electronic portal established under section 417 of the Federal Food, Drug, and Cosmetic Act (as added by this section) and providing notifications to other persons in the supply chain of an article of food under such section 417.
(g) Effect.--Nothing <<NOTE: 21 USC 2110 note.>> in this title, or an amendment made by this title, shall be construed to alter the jurisdiction between the Secretaries of Agriculture and of Health and Human Services, under applicable statutes and regulations. SEC. 1006. <<NOTE: 21 USC 2105.>> ENHANCED AQUACULTURE AND SEAFOOD
INSPECTION.
(a) Findings.--Congress finds the following: (1) In 2007, there has been an overwhelming increase in the
volume of aquaculture and seafood that has been found to contain
substances that are not approved for use in food in the United States.
(2) As of May 2007, inspection programs are not able to
satisfactorily accomplish the goals of ensuring the food safety of the United States.
(3) To protect the health and safety of consumers in the United States, the ability of the Secretary to perform inspection functions must be enhanced.
(b) Heightened Inspections.--The Secretary is authorized to enhance, as necessary, the inspection regime of the Food and Drug Administration for aquaculture and seafood, consistent with obligations of the United States under international agreements and United States law.
(c) Report to Congress.--Not later than 180 days after the date of the enactment of this Act, the Secretary shall submit to Congress a report that--
(1) describes the specifics of the aquaculture and seafood inspection program;
(2) describes the feasibility of developing a traceability system for all catfish and seafood products, both domestic and imported, for the purpose of identifying the processing plant
of origin of such products; and
(3) provides for an assessment of the risks associated with particular contaminants and banned substances.
(d) Partnerships With States.--Upon the request by any State, the Secretary may enter into partnership agreements, as soon as practicable after the request is made, to implement inspection programs to Federal standards regarding the importation of aquaculture and seafood. SEC. 1007. <<NOTE: Reports. 21 USC 2106.>> CONSULTATION REGARDING
GENETICALLY ENGINEERED SEAFOOD PRODUCTS.
The Commissioner of Food and Drugs shall consult with the Assistant Administrator of the National Marine Fisheries Service
[[Page 121 STAT. 970]]
of the National Oceanic and Atmospheric Administration to produce a report on any environmental risks associated with genetically engineered seafood products, including the impact on wild fish stocks. SEC. 1008. <<NOTE: 21 USC 2107.>> SENSE OF CONGRESS.
It is the sense of Congress that-- (1) it is vital for Congress to provide the Food and Drug
Administration with additional resources, authorities, and direction with respect to ensuring the safety of the food
supply of the United States;
(2) additional inspectors are required to improve the Food and Drug Administration's ability to safeguard the food supply of the United States;
(3) because of the increasing volume of international trade in food products the Secretary should make it a priority to enter into agreements with the trading partners of the United States with respect to food safety; and
(4) Congress should work to develop a comprehensive response
to the issue of food safety. SEC. 1009. <<NOTE: 21 USC 2108.>> ANNUAL REPORT TO CONGRESS.
The Secretary shall, on an annual basis, submit to the Committee on Health, Education, Labor, and Pensions and the Committee on Appropriations of the Senate and the Committee on Energy and Commerce and the Committee on Appropriations of the House of Representatives a report that includes, with respect to the preceding 1-year period--
(1) the number and amount of food products regulated by the Food and Drug Administration imported into the United States, aggregated by country and type of food;
(2) a listing of the number of Food and Drug Administration inspectors of imported food products referenced in paragraph
(1) and the number of Food and Drug Administration inspections performed on such products; and
(3) aggregated data on the findings of such inspections, including data related to violations of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 201 et seq.), and enforcement actions used to follow-up on such findings and violations.
SEC. 1010. <<NOTE: 21 USC 2109.>> PUBLICATION OF ANNUAL REPORTS.
(a) In <<NOTE: Website.>> General.--The Commissioner of Food and Drugs shall annually submit to Congress and publish on the Internet Web site of the Food and Drug Administration, a report concerning the results of the Administration's pesticide residue monitoring program, that includes--
(1) information and analysis similar to that contained in the report entitled ``Food and Drug Administration Pesticide Program Residue Monitoring 2003'' as released in June of 2005;
(2) based on an analysis of previous samples, an identification of products or countries (for imports) that require special attention and additional study based on a comparison with equivalent products manufactured, distributed, or sold in the United States (including details on the plans
for such additional studies), including in the initial report (and subsequent reports as determined necessary) the results and analysis of the Ginseng Dietary Supplements Special Survey as described on page
[[Page 121 STAT. 971]]
13 of the report entitled ``Food and Drug Administration Pesticide Program Residue Monitoring 2003'';
(3) information on the relative number of interstate and imported shipments of each tested commodity that were sampled, including recommendations on whether sampling is statistically significant, provides confidence intervals or other related statistical information, and whether the number of samples should be increased and the details of any plans to provide for such increase; and
(4) a description of whether certain commodities are being improperly imported as another commodity, including a description of additional steps that are being planned to prevent such smuggling.
(b) Initial Reports.--Annual reports under subsection (a) for fiscal years 2004 through 2006 may be combined into a single report, by not later than June 1, 2008, for purposes of publication under subsection (a). Thereafter such reports shall be completed by June 1 of each year for the data collected for the year that was 2-years prior to the year in which the report is published.
(c) Memorandum of Understanding.--The Commissioner of Food and Drugs, the Administrator of the Food Safety and Inspection Service, the Department of Commerce, and the head of the Agricultural Marketing Service shall enter into a memorandum of understanding to permit inclusion of data in the reports under subsection (a) relating to testing carried out by the Food Safety and Inspection Service and the Agricultural Marketing Service on meat, poultry, eggs, and certain raw agricultural products, respectively. SEC. 1011. <<NOTE: 21 USC 2110.>> RULE OF CONSTRUCTION.
Nothing in this title (or an amendment made by this title) shall be construed to affect--
(1) the regulation of dietary supplements under the Dietary Supplement Health and Education Act of 1994 (Public Law 103- 417); or
(2) the adverse event reporting system for dietary supplements created under the Dietary Supplement and Nonprescription Drug Consumer Protection Act (Public Law 109- 462).
TITLE XI--OTHER PROVISIONS
Subtitle A--In General
SEC. 1101. POLICY ON THE REVIEW AND CLEARANCE OF SCIENTIFIC ARTICLES PUBLISHED BY FDA EMPLOYEES.
Subchapter A of chapter VII of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 371 et seq.), as amended by section 701, is further amended by adding at the end the following: ``SEC. 713. <<NOTE: 21 USC 379d-2.>> POLICY ON THE REVIEW AND
CLEARANCE OF SCIENTIFIC ARTICLES PUBLISHED BY FDA EMPLOYEES.
``(a) Definition.--In this section, the term `article' means a paper, poster, abstract, book, book chapter, or other published writing.
``(b) Policies.--The <<NOTE: Public information.>> Secretary, through the Commissioner of Food and Drugs, shall establish and make publicly available clear
[[Page 121 STAT. 972]]
written policies to implement this section and govern the timely submission, review, clearance, and disclaimer requirements for articles.
``(c) Timing of Submission for Review.--If an officer or employee, including a Staff Fellow and a contractor who performs staff work, of
the Food and Drug Administration is directed by the policies established under subsection (b) to submit an article to the supervisor of such officer or employee, or to some other official of the Food and Drug Administration, for review and clearance before such officer or employee may seek to publish or present such an article at a conference, such officer or employee shall submit such article for such review and clearance not less than 30 days before submitting the article for publication or presentation.
``(d) Timing for Review and Clearance.--The supervisor or other reviewing official shall review such article and provide written clearance, or written clearance on the condition of specified changes being made, to such officer or employee not later than 30 days after such officer or employee submitted such article for review.
``(e) Non-Timely Review.--If, 31 days after such submission under subsection (c), the supervisor or other reviewing official has not cleared or has not reviewed such article and provided written clearance, such officer or employee may consider such article not to have been cleared and may submit the article for publication or presentation with an appropriate disclaimer as specified in the policies established under subsection (b).
``(f) Effect.--Nothing in this section shall be construed as affecting any restrictions on such publication or presentation provided by other provisions of law.''. SEC. 1102. PRIORITY REVIEW TO ENCOURAGE TREATMENTS FOR TROPICAL
DISEASES.
Subchapter A of chapter V of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 351 et seq.) is amended by adding at the end the following: ``SEC. 524. <<NOTE: 21 USC 360n.>> PRIORITY REVIEW TO ENCOURAGE
TREATMENTS FOR TROPICAL DISEASES.
``(a) Definitions.--In this section: ``(1) Priority review.--The term `priority review', with
respect to a human drug application as defined in section 735(1), means review and action by the Secretary on such application not later than 6 months after receipt by the Secretary of such application, as described in the Manual of Policies and Procedures of the Food and Drug Administration and goals identified in the letters described in section 101(c) of the Food and Drug Administration Amendments Act of 2007.
``(2) Priority review voucher.--The term `priority review voucher' means a voucher issued by the Secretary to the sponsor of a tropical disease product application that entitles the holder of such voucher to priority review of a single human
drug application submitted under section 505(b)(1) or section 351 of the Public Health Service Act after the date of approval of the tropical disease product application.
``(3) Tropical disease.--The term `tropical disease' means any of the following:
``(A) Tuberculosis. ``(B) Malaria.
``(C) Blinding trachoma.
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``(D) Buruli Ulcer. ``(E) Cholera. ``(F) Dengue/dengue haemorrhagic fever. ``(G) Dracunculiasis (guinea-worm disease). ``(H) Fascioliasis. ``(I) Human African trypanosomiasis. ``(J) Leishmaniasis. ``(K) Leprosy. ``(L) Lymphatic filariasis. ``(M) Onchocerciasis. ``(N) Schistosomiasis. ``(O) Soil transmitted helmithiasis. ``(P) Yaws. ``(Q) Any other infectious disease for which there
is no significant market in developed nations and that disproportionately affects poor and marginalized populations, designated by regulation by the Secretary.
``(4) Tropical disease product application.--The term `tropical disease product application' means an application that--
``(A) is a human drug application as defined in section 735(1)--
``(i) for prevention or treatment of a tropical disease; and
``(ii) the Secretary deems eligible for priority review;
``(B) is approved after the date of the enactment of
the Food and Drug Administration Amendments Act of 2007,
by the Secretary for use in the prevention, detection, or treatment of a tropical disease; and
``(C) is for a human drug, no active ingredient (including any ester or salt of the active ingredient) of which has been approved in any other application under section 505(b)(1) or section 351 of the Public Health Service Act.
``(b) Priority Review Voucher.-- ``(1) In general.--The Secretary shall award a priority
review voucher to the sponsor of a tropical disease product application upon approval by the Secretary of such tropical disease product application.
``(2) Transferability.--The sponsor of a tropical disease product that receives a priority review voucher under this section may transfer (including by sale) the entitlement to
such voucher to a sponsor of a human drug for which an application under section 505(b)(1) or section 351 of the Public Health Service Act will be submitted after the date of the approval of the tropical disease product application.
``(3) Limitation.-- ``(A) No award for prior approved application.--A
sponsor of a tropical disease product may not receive a priority review voucher under this section if the tropical disease product application was submitted to the Secretary prior to the date of the enactment of
this section.
``(B) One-year waiting period.--The Secretary shall issue a priority review voucher to the sponsor of a tropical disease product no earlier than the date that is 1 year
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after the date of the enactment of the Food and Drug Administration Amendments Act of 2007.
``(4) Notification.--The <<NOTE: Deadline.>> sponsor of a human drug application shall notify the Secretary not later
than 365 days prior to submission of the human drug application that is the subject of a priority review voucher of an intent to submit the human drug application, including the date on which the sponsor intends to submit the application. Such
notification shall be a legally binding commitment to pay for the user fee
to be assessed in accordance with this section.
``(c) Priority Review User Fee.-- ``(1) In general.--The Secretary shall establish a user fee
program under which a sponsor of a human drug application that is the subject of a priority review voucher shall pay to the Secretary a fee determined under paragraph (2). Such fee shall be in addition to any fee required to be submitted by the sponsor under chapter VII.
``(2) Fee amount.--The amount of the priority review user fee shall be determined each fiscal year by the Secretary and based on the average cost incurred by the agency in the review of a human drug application subject to priority review in the previous fiscal year.
``(3) Annual fee setting.--The Secretary shall establish, before the beginning of each fiscal year beginning after September 30, 2007, for that fiscal year, the amount of the priority review user fee.
``(4) Payment.-- ``(A) In general.--The priority review user fee
required by this subsection shall be due upon the submission of a human drug application under section 505(b)(1) or section 351 of the Public Health Services Act for which the priority review voucher is used.
``(B) Complete application.--An application described under subparagraph (A) for which the sponsor requests the use of a priority review voucher shall be considered incomplete if the fee required by this subsection and all other applicable user fees are not paid in accordance with the Secretary's procedures for paying such fees.
``(C) No waivers, exemptions, reductions, or
refunds.--The Secretary may not grant a waiver, exemption, reduction, or refund of any fees due and payable under this section.
``(5) Offsetting collections.--Fees collected pursuant to this subsection for any fiscal year--
``(A) shall be deposited and credited as offsetting collections to the account providing appropriations to the Food and Drug Administration; and
``(B) shall not be collected for any fiscal year except to the extent provided in advance in appropriation Acts.''.
SEC. 1103. IMPROVING GENETIC TEST SAFETY AND QUALITY.
(a) Report.--If the <<NOTE: Contracts. Study.>> Secretary's Advisory Committee on Genetics, Health, and Society does not complete and submit the Regulatory Oversight of Genetic/Genomic Testing Report & Action Recommendations to the Secretary of Health and Human Services (referred to in this section as the ``Secretary'') by July of 2008, the Secretary shall enter into a contract with the Institute of
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Medicine to conduct a study to assess the overall safety and quality of genetic tests and prepare a report that includes recommendations to improve Federal oversight and regulation of genetic tests. Such study shall take into consideration relevant reports by the Secretary's Advisory Committee on Genetics, Health, and Society and other groups and shall be completed not later than 1 year after the date on which the Secretary entered into such contract.
(b) Rule of Construction.--Nothing in this section shall be construed as requiring Federal efforts with respect to regulatory oversight of genetic tests to cease or be limited or delayed pending completion of the report by the Secretary's Advisory Committee on Genetics, Health, and Society or the Institute of Medicine. SEC. 1104. NIH TECHNICAL AMENDMENTS.
The Public Health Service Act (42 U.S.C. 201 et seq.) is amended-- (1) <<NOTE: 42 USC 247d-3b.>> in section 319C-2(j)(3)(B),
by striking ``section 319C-1(h)'' and inserting ``section 319C- 1(i)'';
(2) <<NOTE: 42 USC 282.>> in section 402(b)(4), by inserting
``minority and other'' after ``reducing''; (3) <<NOTE: 42 USC 283.>> in section 403(a)(4)(C)(iv)(III),
by inserting ``and postdoctoral training funded through research
grants'' before the semicolon; (4) by designating the second section 403C (relating to the
drug diethylstilbestrol) <<NOTE: 42 USC 283a-3.>> as section 403D; and
(5) <<NOTE: 42 USC 283a-2.>> in section 403C(a)-- (A) in the matter preceding paragraph (1)--
(i) by inserting ``graduate students supported
by the National Institutes of Health'' after ``with respect to''; and
(ii) by deleting ``each degree-granting program'';
(B) in paragraph (1), by inserting ``such'' after ``percentage of''; and
(C) in paragraph (2), by inserting ``(not including any leaves of absence)'' after ``average time''.
SEC. 1105. <<NOTE: 21 USC 301 note.>> SEVERABILITY CLAUSE.
If any provision of this Act, an amendment made this Act, or the application of such provision or amendment to any person or circumstance is held to be unconstitutional, the remainder of this Act, the amendments made by this Act, and the application of the provisions of such to any person or circumstances shall not be affected thereby.
Subtitle B--Antibiotic Access and Innovation
SEC. 1111. <<NOTE: 42 USC 247d-5a.>> IDENTIFICATION OF CLINICALLY SUSCEPTIBLE CONCENTRATIONS OF ANTIMICROBIALS.
(a) Definition.--In this section, the term ``clinically susceptible concentrations'' means specific values which characterize bacteria as clinically susceptible, intermediate, or resistant to the drug (or drugs) tested.
(b) Identification.--The Secretary of Health and Human Services (referred to in this section as the ``Secretary''), through the Commissioner of Food and Drugs, shall identify (where such
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information is reasonably available) and periodically update clinically susceptible concentrations.
(c) Public <<NOTE: Deadline.>> Availability.--The Secretary, through the Commissioner of Food and Drugs, shall make such clinically susceptible concentrations publicly available, such as by posting on the Internet, not later than 30 days after the date of identification and any update under this section.
(d) Effect.--Nothing in this section shall be construed to restrict, in any manner, the prescribing of antibiotics by physicians, or to limit the practice of medicine, including for diseases such as Lyme and tick- borne diseases. SEC. 1112. ORPHAN ANTIBIOTIC DRUGS.
(a) Public Meeting.--The Commissioner of Food and Drugs shall convene a public meeting regarding which serious and life threatening infectious diseases, such as diseases due to gram-negative bacteria and
other diseases due to antibiotic-resistant bacteria, potentially qualify for available grants and contracts under section 5(a) of the Orphan Drug Act (21 U.S.C. 360ee(a)) or other incentives for development.
(b) Grants and Contracts for the Development of Orphan Drugs.-- Section 5(c) of the Orphan Drug Act (21 U.S.C. 360ee(c)) is amended to read as follows:
``(c) <<NOTE: Appropriation authorization.>> For grants and contracts under subsection (a), there is authorized to be appropriated $30,000,000 for each of fiscal years 2008 through 2012.''. SEC. 1113. EXCLUSIVITY OF CERTAIN DRUGS CONTAINING SINGLE
ENANTIOMERS.
Section 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355), as amended by section 920, is further amended by adding at the end the following:
``(u) Certain Drugs Containing Single Enantiomers.-- ``(1) In general.--For purposes of subsections
(c)(3)(E)(ii) and (j)(5)(F)(ii), if an application is submitted under subsection (b) for a non-racemic drug containing as an active ingredient (including any ester or salt of the active ingredient) a single enantiomer that is contained in a racemic drug approved in another application under subsection (b), the applicant may, in the application for such non-racemic drug, elect to have the single enantiomer not be considered the same active ingredient as that contained in the approved racemic drug, if--
``(A)(i) the single enantiomer has not been previously approved except in the approved racemic
drug; and
``(ii) the application submitted under subsection (b) for such non-racemic drug--
``(I) includes full reports of new clinical investigations (other than bioavailability studies)--
``(aa) necessary for the approval of
the application under subsections (c) and (d); and
``(bb) conducted or sponsored by the
applicant; and ``(II) does not rely on any investigations
that are part of an application submitted under subsection (b) for approval of the approved racemic drug; and
``(B) the application submitted under subsection (b)
for such non-racemic drug is not submitted for approval of a condition of use--
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``(i) in a therapeutic category in which the approved racemic drug has been approved; or
``(ii) for which any other enantiomer of the racemic drug has been approved.
``(2) Limitation.-- ``(A) No approval in certain therapeutic
categories.--Until the date that is 10 years after the date of approval of a non-racemic drug described in paragraph (1) and with respect to which the applicant has made the election provided for by such paragraph, the Secretary shall not approve such non-racemic drug for any condition of use in the therapeutic category in which the racemic drug has been approved.
``(B) Labeling.--If applicable, the labeling of a non-racemic drug described in paragraph (1) and with respect to which the applicant has made the election provided for by such paragraph shall include a
statement that the non-racemic drug is not approved, and has not been shown to be safe and effective, for any condition of use of the racemic drug.
``(3) Definition.-- ``(A) In general.--For purposes of this subsection,
the term `therapeutic category' means a therapeutic category identified in the list developed by the United States Pharmacopeia pursuant to section 1860D- 4(b)(3)(C)(ii) of the Social Security Act and as in effect on the date of the enactment of this subsection.
``(B) Publication by secretary.--The Secretary shall
publish the list described in subparagraph (A) and may amend such list by regulation.
``(4) Availability.--The <<NOTE: Deadline.>> election referred to in paragraph (1) may be made only in an application that is submitted to the Secretary after the date of the enactment of this subsection and before October 1, 2012.''.
SEC. 1114. REPORT.
Not later than January 1, 2012, the Comptroller General of the United States shall submit a report to the Committee on Health, Education, Labor, and Pensions of the Senate and the Committee on Energy and Commerce of the House of Representatives that examines whether and how this subtitle has--
(1) encouraged the development of new antibiotics and other drugs; and
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(2) prevented or delayed timely generic drug entry into the market.
Approved September 27, 2007.
LEGISLATIVE HISTORY--H.R. 3580: ----------------------------------------------------------------------- ----
CONGRESSIONAL RECORD, Vol. 153 (2007): Sept. 19, considered and passed House. Sept. 20, considered and passed Senate.
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