(a) Application requirements
(1)
(A) Except as provided in paragraph (3), any person may file with the Secretary an application for conditional approval of—
(ii) a new animal drug not intended for a minor use or minor species—
(I)
that is intended to treat a serious or life-threatening disease or condition or addresses an unmet animal or human health need; and
(II)
for which the
Secretary determines that a demonstration of effectiveness would require a complex or particularly difficult study or studies.
(B)
The
Secretary shall, not later than
September 30, 2019, issue guidance or regulations further clarifying the criteria specified in subparagraph (A)(ii).
(C)
An application under this paragraph shall comply in all respects with the provisions of
section 360b of this title except for subsections (a)(4), (b)(2), (c)(1), (c)(2), (c)(3), (d)(1), (e), (h), and (n) of such section unless otherwise stated in this section, and any additional provisions of this section.
(2) The applicant shall submit to the Secretary as part of an application for the conditional approval of a new animal drug—
(B)
full reports of investigations which have been made to show whether or not such
drug is safe under
section 360b(d) of this title (including, for an antimicrobial
new animal drug, with respect to antimicrobial resistance) and there is a reasonable expectation of effectiveness for use;
(C)
data for establishing a conditional dose;
(D)
projections of expected need and the justification for that expectation based on the best information available;
(E)
information regarding the quantity of
drug expected to be distributed on an annual basis to meet the expected need; and
(F)
a commitment that the applicant will conduct additional investigations to meet the requirements for the full demonstration of effectiveness under
section 360b(d)(1)(E) of this title within 5 years.
(3)
(A) A person may not file an application under paragraph (1) if—
(ii)
the
person has previously filed an application for conditional approval under paragraph (1) for the same
drug in the same dosage form for the same intended use whether or not subsequently conditionally approved by the
Secretary under subsection (b); or
(iii)
the
person obtained the application, or data or other information contained therein, directly or indirectly from the
person who filed for conditional approval under paragraph (1) for the same
drug in the same dosage form for the same intended use whether or not subsequently conditionally approved by the
Secretary under subsection (b).
(B)
A
person may not file an application under paragraph (1)(A)(ii) if the application seeks conditional approval of a
new animal drug that contains an antimicrobial active ingredient.
(4)
Beginning on
October 1, 2018, all applications or submissions pursuant to this subsection shall be submitted by electronic means in such format as the
Secretary may require.
(b) Order of approval or hearingWithin 180 days after the filing of an application pursuant to subsection (a), or such additional period as may be agreed upon by the Secretary and the applicant, the Secretary shall either—
(1)
issue an order, effective for one year, conditionally approving the application if the
Secretary finds that none of the grounds for denying conditional approval, specified in subsection (c) of this section applies and publish a Federal Register notice of the conditional approval, or
(2)
give the applicant notice of an opportunity for an
informal hearing on the question whether such application can be conditionally approved.
(c) Order of approval or refusal after hearingIf the Secretary finds, after giving the applicant notice and an opportunity for an informal hearing, that—
(1)
any of the provisions of
section 360b(d)(1)(A) through (D) or (F) through (I) of this title are applicable;
(2)
the information submitted to the
Secretary as part of the application and any other information before the
Secretary with respect to such
drug, is insufficient to show that there is a reasonable expectation that the
drug will have the effect it purports or is represented to have under the conditions of use prescribed, recommended, or suggested in the proposed
labeling thereof; or
(3)
another
person has received approval under
section 360b of this title for the same
drug in the same dosage form for the same intended use, and that
person is able to assure the availability of sufficient quantities of the
drug to meet the needs for which the
drug is intended;
the
Secretary shall issue an order refusing to conditionally approve the application. If, after such notice and opportunity for an
informal hearing, the
Secretary finds that paragraphs (1) through (3) do not apply, the
Secretary shall issue an order conditionally approving the application effective for one year and publish a Federal Register notice of the conditional approval. Any order issued under this subsection refusing to conditionally approve an application shall
state the findings upon which it is based.
(d) Effective period; renewal; refusal of renewalA conditional approval under this section is effective for a 1-year period and is thereafter renewable by the Secretary annually for up to 4 additional 1-year terms. A conditional approval shall be in effect for no more than 5 years from the date of approval under subsection (b)(1) or (c) of this section unless extended as provided for in subsection (h) of this section. The following shall also apply:
(1)
No later than 90 days from the end of the 1-year period for which the original or renewed conditional approval is effective, the applicant may submit a request to renew a conditional approval for an additional 1-year term.
(2) A conditional approval shall be deemed renewed at the end of the 1-year period, or at the end of a 90-day extension that the Secretary may, at the Secretary’s discretion, grant by letter in order to complete review of the renewal request, unless the Secretary determines before the expiration of the 1-year period or the 90-day extension that—
(A)
the applicant failed to submit a timely renewal request;
(B) the request fails to contain sufficient information to show that—
(i)
the applicant is making sufficient progress toward meeting approval requirements under
section 360b(d)(1)(E) of this title, and is likely to be able to fulfill those requirements and obtain an approval under
section 360b of this title before the expiration of the 5-year maximum term of the conditional approval;
(ii)
the quantity of the
drug that has been distributed is consistent with the conditionally approved intended use and conditions of use, unless there is adequate explanation that ensures that the
drug is only used for its intended purpose; or
(iii)
the same
drug in the same dosage form for the same intended use has not received approval under
section 360b of this title, or if such a
drug has been approved, that the holder of the approved application is unable to assure the availability of sufficient quantities of the
drug to meet the needs for which the
drug is intended; or
(C)
any of the provisions of
section 360b(e)(1)(A) through (B) or (D) through (F) of this title are applicable.
(3)
If the
Secretary determines before the end of the 1-year period or the 90-day extension, if granted, that a conditional approval should not be renewed, the
Secretary shall issue an order refusing to renew the conditional approval, and such conditional approval shall be deemed withdrawn and no longer in effect. The
Secretary shall thereafter provide an opportunity for an
informal hearing to the applicant on the issue whether the conditional approval shall be reinstated.
(4)
(B) For purposes of this section, with respect to an application described in subparagraph (A), the term “date of approval” shall mean the later of—
(i)
the date an application under subsection (a) is conditionally approved under subsection (b); or
(ii)
the date of issuance of the interim final rule controlling the
drug.
(e) Withdrawal of conditional approval
(1)
The
Secretary shall issue an order withdrawing conditional approval of an application filed pursuant to subsection (a) if the
Secretary finds that another
person has received approval under
section 360b of this title for the same
drug in the same dosage form for the same intended use and that
person is able to assure the availability of sufficient quantities of the
drug to meet the needs for which the
drug is intended.
(2) The Secretary shall, after due notice and opportunity for an informal hearing to the applicant, issue an order withdrawing conditional approval of an application filed pursuant to subsection (a) if the Secretary finds that—
(A)
any of the provisions of
section 360b(e)(1)(A) through (B) or (D) through (F) of this title are applicable; or
(B)
on the basis of new information before the
Secretary with respect to such
drug, evaluated together with the evidence available to the
Secretary when the application was conditionally approved, that there is not a reasonable expectation that such
drug will have the effect it purports or is represented to have under the conditions of use prescribed, recommended, or suggested in the
labeling thereof.
(f) Labeling
(1) The label and labeling of a new animal drug with a conditional approval under this section shall for the conditionally approved use—
(A)
bear the statement, “conditionally approved by FDA pending a full demonstration of effectiveness under application number”; and
(B)
contain such other information as prescribed by the
Secretary.
(2)
The
Secretary shall, through regulation or guidance, determine under what conditions an intended use that is the subject of a conditional approval under this section may be included in the same product
label with any intended use approved under
section 360b of this title.
(g) Amendment of application
A conditionally approved new animal drug application may not be amended or supplemented to add indications for use.
(h) Order of approval after conditional approval period termination180 days prior to the termination date established under subsection (d) of this section, an applicant shall have submitted all the information necessary to support a complete new animal drug application in accordance with section 360b(b)(1) of this title or the conditional approval issued under this section is no longer in effect. Following review of this information, the Secretary shall either—
Upon issuance of an order approving the application, product
labeling and administrative records of approval shall be modified accordingly. If the
Secretary has not issued an order under
section 360b(c) of this title approving such application prior to the termination date established under subsection (d) of this section, the conditional approval issued under this section is no longer in effect unless the
Secretary grants an extension of an additional 180-day period so that the
Secretary can complete review of the application. The decision to grant an extension is committed to the discretion of the
Secretary and not subject to judicial review.
(i) Judicial review
The decision of the Secretary under subsection (c), (d), or (e) of this section refusing or withdrawing conditional approval of an application shall constitute final agency action subject to judicial review.
(j) Definition
In this section and section 360ccc–1 of this title, the term “transgenic animal” means an animal whose genome contains a nucleotide sequence that has been intentionally modified in vitro, and the progeny of such an animal; Provided that the term “transgenic animal” does not include an animal of which the nucleotide sequence of the genome has been modified solely by selective breeding.
(k) Sunset
(2) The Secretary—
(A)
may not accept any new applications for such conditional approval pursuant to subsection (a)(1)(A)(ii) on or after such date; and
(B)
may continue all activities under this section with respect to
drugs that were conditionally approved pursuant to (a)(1)(A)(ii) prior to such date.
(3)
The
Secretary may, until
October 1, 2032, accept applications for approval under 360b of this title of
drugs conditionally approved pursuant to
2 (a)(1)(A)(ii).
(June 25, 1938, ch. 675, § 571, as added
Pub. L. 108–282, title I, § 102(b)(4),
Aug. 2, 2004,
118 Stat. 892; amended
Pub. L. 114–89, § 2(a)(3)(B),
Nov. 25, 2015,
129 Stat. 699;
Pub. L. 115–234, title III, §§ 301(b), 304(a),
Aug. 14, 2018,
132 Stat. 2436.)
Amendments
2018—Pub. L. 115–234, § 304(a)(1), substituted “species and certain new animal drugs” for “species” in section catchline.
Subsec. (a)(1). Pub. L. 115–234, § 304(a)(2)(A), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “Except as provided in paragraph (3) of this section, any person may file with the Secretary an application for conditional approval of a new animal drug intended for a minor use or a minor species. Such an application may not be a supplement to an application approved under section 360b of this title. Such application must comply in all respects with the provisions of section 360b of this title except sections 360b(a)(4), 360b(b)(2), 360b(c)(1), 360b(c)(2), 360b(c)(3), 360b(d)(1), 360b(e), 360b(h), and 360b(n) of this title unless otherwise stated in this section, and any additional provisions of this section. New animal drugs are subject to application of the same safety standards that would be applied to such drugs under section 360b(d) of this title (including, for antimicrobial new animal drugs, with respect to antimicrobial resistance).”
Subsec. (a)(3). Pub. L. 115–234, § 304(a)(2)(B), designated existing provisions as subpar. (A), redesignated former subpars. (A) to (C) as cls. (i) to (iii), respectively, of subpar. (A), and added subpar. (B).
Subsec. (a)(4). Pub. L. 115–234, § 301(b), added par. (4).
Subsec. (f)(1). Pub. L. 115–234, § 304(a)(3)(A), inserted “for the conditionally approved use” after “shall” in introductory provisions.
Subsec. (f)(2). Pub. L. 115–234, § 304(a)(3)(B), substituted “The Secretary shall, through regulation or guidance, determine under what conditions an intended use” for “An intended use” and “may be included” for “shall not be included”.
Subsec. (k). Pub. L. 115–234, § 304(a)(4), added subsec. (k).
2015—Subsec. (d)(4). Pub. L. 114–89 added par. (4).
Findings
Pub. L. 108–282, title I, § 102(a), Aug. 2, 2004, 118 Stat. 891, provided that:
“Congress makes the following findings:
“(2)
There is a severe shortage of approved
new animal drugs for treating animal diseases and conditions that occur infrequently or in limited geographic areas.
“(3)
Because of the small market shares, low-profit margins involved, and capital investment required, it is generally not economically feasible for
new animal drug applicants to pursue approvals for these species, diseases, and conditions.
“(4)
Because the populations for which such
new animal drugs are intended may be small and conditions of animal management may vary widely, it is often difficult to design and conduct studies to establish
drug safety and effectiveness under traditional
new animal drug approval processes.
“(5)
It is in the public interest and in the interest of animal welfare to provide for special procedures to allow the lawful use and marketing of certain
new animal drugs for
minor species and
minor uses that take into account these special circumstances and that ensure that such
drugs do not endanger animal or public health.
“(6)
Exclusive marketing rights for clinical testing expenses have helped encourage the development of ‘orphan’
drugs for human use, and comparable incentives should encourage the development of
new animal drugs for
minor species and
minor uses.”
Regulations
Pub. L. 108–282, title I, § 102(b)(6), Aug. 2, 2004, 118 Stat. 905, provided that:
“On the date of enactment of this Act [
Aug. 2, 2004], the
Secretary of Health and Human Services shall implement sections 571 and 573 of the
Federal Food, Drug, and Cosmetic Act [
21 U.S.C. 360ccc, 360ccc–2] and subsequently publish implementing regulations. Not later than 12 months after the date of enactment of this Act, the
Secretary shall issue proposed regulations to implement section 573 of the
Federal Food, Drug, and Cosmetic Act (as added by this Act), and not later than 24 months after the date of enactment of this Act, the
Secretary shall issue final regulations implementing section 573 of the
Federal Food, Drug, and Cosmetic Act. Not later than 18 months after the date of enactment of this Act, the
Secretary shall issue proposed regulations to implement section 572 of the
Federal Food, Drug, and Cosmetic Act (as added by this Act) [
21 U.S.C. 360ccc–1], and not later than 36 months after the date of enactment of this Act, the
Secretary shall issue final regulations implementing section 572 of the
Federal Food, Drug, and Cosmetic Act. Not later than 30 months after the date of enactment of this Act, the
Secretary shall issue proposed regulations to implement section 571 of the
Federal Food, Drug, and Cosmetic Act (as added by this Act), and not later than 42 months after the date of enactment of this Act, the
Secretary shall issue final regulations implementing section 571 of the
Federal Food, Drug, and Cosmetic Act. These timeframes shall be extended by 12 months for each fiscal year, in which the funds authorized to be appropriated under subsection (i) [no subsection (i) of section 102 has been enacted] are not in fact appropriated.”
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