On November 27, 2013, President Obama signed into law the Drug Quality and Security Act. Title I of this law—entitled the Compounding Quality Act (the "CQA")—allows the federal Food and Drug Administration (FDA) to oversee drug compounding in human health. The CQA does not apply to drugs compounded for animals.
The CQA allows the FDA to regulate compounding in human health in the following ways. First, the CQA creates a new FDA-regulated entity called an "outsourcing facility" that is permitted to engage in pharmacy compounding without a prescription. Second, the CQA amends and reinstates Section 503A of the Food, Drug, and Cosmetic Act (FDCA), which details certain requirements for compounding that does not take place in outsourcing facilities. Third, the CQA establishes new penalties for several categories of prohibited conduct. Fourth, the CQA requires enhanced communication between state boards of pharmacy and the FDA.
Key Components of the CQA
Licensure, Reporting and Inspection Requirements. Outsourcing facilities are required to register with the FDA, comply with Current Good Manufacturing Practices (cGMPs), report adverse events to the FDA and make semiannual reports to the FDA of the drugs the facility compounds. Outsourcing facilities are not required to be licensed pharmacies, and as such, they may or may not obtain prescriptions for an identified patient. Outsourcing facilities will also be subject to FDA inspections on a risk-based schedule and are required to pay an annual establishment fee, as well as fees for reinspection.
Labeling Requirements. Drugs compounded at an outsourcing facility must include on each label of a compounded drug the statement, "This is a compounded drug," or a reasonably comparable alternative statement. In addition, the label must contain the date the drug was compounded, the expiration date, the storage and handling instructions and a statement that the compounded drug is "not for resale" and/or is for "office use only" if the drug is not compounded pursuant to a patient-specific prescription.
2. Compounding Outside of an Outsourcing Facility. The CQA amends and reinstates Section 503A of the FDCA, which exempts compounds from the FDCA's new drug approval and adequate directions for use labeling requirements, and does not require the compounds to be prepared in a facility that complies with cGMPs if they meet the requirements detailed in this section.
As with the outsourcing facilities, compounding pharmacies may not prepare compounds that appear on an FDA list of drug products that have been withdrawn from the market because they have been found to be unsafe or ineffective. Section 503A also does not allow compounding regularly or in inordinate amounts (as defined by the FDA) of any drug products that are essentially copies of commercially available drug products. Under 503A, the term "essential copy" does not include a drug product in which a change is made between the commercially available drug and the commercially available alternative for an individual patient, and the change produces a significant difference for the individual patient (as determined by the prescribing practitioner).
3. New Penalties. The CQA imposes penalties on several new activities, including:
4. Enhanced Communication. The CQA provides for a mechanism for state boards of pharmacy and FDA to communicate regarding drug compounding. State boards of pharmacy are required to notify FDA if the state boards: (1) issue a warning letter or impose any sanctions for violations of pharmacy regulations pertaining to compounding; (2) suspend or revoke a state-issued pharmacy license or registration for violating state pharmacy regulations regarding compounding; or (3) learn of any recall of a compounded drug due to concerns regarding quality or purity. In turn, FDA is to immediately notify the state boards of pharmacy if it receives any notification from any state board of the above three situations, or if FDA determines that a pharmacy is acting contrary to Section 503A.
As the CQA is now law, pharmacies who compound may want to seek guidance on how their pharmacy practices may be impacted. FDA likely will issue regulations as to the CQA's implementation in the near future, as well as guidance on the FDA's current interpretation of the CQA.
For Further Information
If you have any questions about this Alert or would like more information, please contact Rachael G. Pontikes, Elinor L. Hart, any of the attorneys in our Pharmaceutical, Medical Device, Pharmacy & Food group or the attorney in the firm with whom you are regularly in contact.
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