FDA仿制药安全性标签变更法律先占性问题引发关注
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FDA仿制药安全性标签变更法律先占性问题引发关注
笔记 2014-02-03 识林 各位可能注意到了FDA于2013年11月发布了拟议规定,允许仿制药生产商变更产品商标以反映新的安全性信息【仿制药公司雪上加霜,需上报不良反应 识林资讯】。该拟议机制与以往NDA持有人使用的待批变更(CBE-0)补充申请提交相同。自Hatch-Waxman法案生效以来,NDA持有人就不断在做与安全性相关的标签变更,之后为所有仿制药所复制。这有助于保持药品的标签一致,确保某一给定产品的所有生产商都使用相同标签。 作为这一流程的结果,仿制药生产商并不(最终)为标签未列出或标签未充分标明的安全性问题负责。这被称为“先占(preemption)”,在患者就受到伤害索赔的产品责任诉讼中,仿制药生产商由于不能变更标签,可不为标签缺陷负责。最近的在美国最高法院审理的产品责任诉讼案之一,就是基于标签先占原则做出了有利于仿制药生产商的判决(PLIVA Inc.诉Mensing)。在判决中,法官论述了先占问题,并有力地阐明,如果不是对更改标签无能为力,那么生产商将要担责。然而,他们也指出FDA目前有权利在标签中注明安全性问题 “如果有意修改,国会和FDA保留修改法律法规的权利。” FDA提出了对这一先占问题的解决办法,就是仿制药生产商也可以对其标签做安全性的变更。这将会极大地改变现在的局面。这类产品责任诉讼中的很多会导致数以千万计甚至数亿美元计的损害评估。很多仿制药公司无法承担这样的责任,而且他们也不具备能做出与大型品牌药公司所做出的同样类型的安全性评估的地位。他们已经发现很难,某些情况下不可能得到产品责任保险,如果没有先占,可能会发现这是不可能的。对于FDA拟议的变更,仿制药行业感到忧心忡忡,并极力反对这项提议。 1月22日,28位国会议员致函FDA局长Margret Hamburg 1. 对于仿制药提交CBE-0补充申请后的时间段,请解释仿制药标签如何“在批准日期之后,与根据Hatch-Waxman法案第505(j)(2)(A)(i)-(v)节所包涵的要求批准的标签一致” FDA应在2014年2月5日前回复该函。 这对于美国仿制药行业来说是一个暗藏危机的经济问题。如果律师或律师事务所同意以部分最终赔偿金(通常为30%或更多)接下案子,诉讼可以酬金的形式开展,这样的事实,意味着任何人都可以就产品责任起诉。陪审团倾向于同情受到伤害的原告,屡次做出有利于原告的判决并判予巨额赔偿金。尽管生产药品公司并不开具处方,但因为他们比其它直接参与开具处方者更有钱,他们仍会因“产品缺陷”而吃官司。 我们只能期盼这一拟议变更不会生效,或者即使生效,也被法院以有悖于现行法律而取消。如果这些情况发生,国会将不得不介入,或者就如我们所知的,仿制药行业的生存将受到严重威胁。 北京大学药物信息与工程研究中心 - Garth Boehm 博士 2014-01-25 Many of you may be aware of FDA's proposed rule published in November 2013 to allow generic manufacturers to change labelling of their products to reflect new safety information. The proposed mechanism is the same as that used by the NDA holders, submission of a CBE-0 supplement. Ever since Hatch-Waxman came into being, safety related label changes have been made by the NDA holder and then copied by all generics. This served to keep drug labels consistent ensuring that all manufacturers of a given product had the same label. As a consequence of this procedure, generic manufacturers were not (ultimately) held liable for safety issues not being labeled or not being adequately labeled. This was called “preemption” and in product liability suits by patients claiming injury, generic manufacturers could not be found liable due to labeling deficiencies as they could not change the label. One of the most recent product liability cases that went to the US Supreme Court was decided in favor of the generic manufacturer on the basis of labeling preemption (PLIVA Inc v's Mensing). In this decision the Justices addressed the preemption issue and effectively stated that absent the inability to change the labeling, the manufacturer would have been liable. However they also pointed out that FDA currently has the power to address safety issues in labeling “Congress and the FDA retain the authority to change the law and regulations if they so desire”. FDA has proposed as it's solution to preemption that generic manufacturers can make safety changes to their label. This would be a huge change to the current situation. Many of these product liability suits result in damage assessments of tens of millions or even hundreds of millions of dollars. Many generic companies cannot afford this liability and are not in a position to make the same kinds of safety assessments that can be made by large brand companies. They already find it difficult, and in some cases impossible to get product liability insurance, and without preemption they would likely find it impossible. The generic industry is very concerned about FDA's proposed change and has objected vigorously to the proposal. On January 22nd, 28 Congressmen sent a Letter to the Commissioner of the FDA, Margret Hamburg expressing “grave concern” about the proposal. The letter goes on to say “We strongly believe that such a rule would conflict directly with the statute, thwart the law's purposes and objectives, and impose significant costs on the drug industry and healthcare consumers”. The Congressmen then make a number of demands for information from FDA concerning the proposed rule. The information sort is as follows. 1. For the period of time after a generic drug has submitted a CBE-0 supplement, please explain how the generic drug's label will be “the same as the labeling approved for the requirements included in sections 505(j)(2)(A)(i)-(v) of the Hatch-Waxman Act extend beyond the date of approval? FDA has until February 5, 2014 to respond to the letter. This is potentially a very serious economic issue for the US generic industry. The fact that litigation can be pursued on a contingency basis, where a lawyer or law firm agrees to take on the case for a portion of the eventual damages (often 30% or more) mean that anyone can bring such a product liability case. Juries tend to be sympathetic to the injured plaintiff and many times find in favor of the plaintiff and award huge damages. Although companies that manufacture drug products do not prescribe them, they are sued based on a “defective product” theory because they have more money than other people directly involved in the prescribing. We can only hope that this proposed change does not go into effect, or if it does that it is stuck down by the courts as against the current law. If neither of these things happens, then Congress will have to step in or the existence generic industry as we know it will be seriously threatened. |