(old) Formulation Of Opanas Hitting Shelves As A Generic?

I hav ben going to a pain clinic for quiet some time and have tried so many combinations of pain meds tht I'm about to give up. I've had 2 back surgeries and need another one but I refuse. I have heard tht the ( old) formulation of opanas are hitting the shells as a generic and I'm curious if anyone wood hav n e info. Thanks. Bigbird

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REPORT

No, they wouldn't be hitting as a generic. They can still be dispensed to fill prescriptions, until a pharmacy runs out of any supply they already had on hand, but once they are gone, that's it.

Learn more Opana details here.

What is relevant here, however, is that the generics have not been reformulated, yet. Thus, if you're having a problem with the name brand, then you should ask your doctor to prescribe the generic or specifically let your pharmacy know that you only want the generic version.

Have you also experienced problems with the formulation change?

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I don't know what Verwon is talking about. There is a generic Opana ER available now. I use it. It comes in strengths of 7.5 mg and 15 mg. It is manufactured by Actavis pharmaceuticals. Look it up. Hope this helps.

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They are fighting about it now.
Endo Sues FDA; Seeks Court Orders for FDA Determinations on the Discontinuation of “Old†Opana® ER and With Respect to Approved and Pending ANDAs

By Kurt R. Karst –

Last Friday afternoon, Endo Pharmaceuticals Inc. (“Endoâ€) filed a Complaint and a Motion for Preliminary Injunction in the U.S. District Court for the District of Columbia seeking declaratory and injunctive relief concerning the company’s non-crush-resistant formulation of Opana® ER approved under NDA No. 021610 (identified in Endo’s Complaint as “Original Formulation Opana® ERâ€). Endo alleges that FDA violated the FDC Act and the Administrative Procedure Act by failing to make a determination as to whether Original Formulation Opana® ER, which was discontinued from marketing earlier this year, was withdrawn for reasons of safety. Endo currently markets a crush-resistant version of Opana® ER approved under NDA No. 201655 (identified in Endo’s Complaint as Opana® ER CRF). Endo is also seeking a preliminary injunction ordering FDA to make a decision by December 31, 2012 on whether Original Formulation Opana® ER was discontinued for safety reasons. FDA has approved two ANDAs for generic versions of Original Formulation Opana® ER – ANDA No. 079087 (Impax) and ANDA No. 079046 (Actavis) – and the companies are expected to begin marketing their drug products on January 1, 2013. In the interim, Endo wants a court order directing FDA to withdraw or suspend those approvals.

The lawsuit follows a pair of citizen petitions Endo submitted to FDA in August. The first Citizen Petition (Docket No. FDA-2012-P-0895) requests that FDA determine that Original Formulation Opana® ER was discontinued for reasons of safety and can no longer serve as the basis of approval for an ANDA, that FDA refuse to approve any pending ANDA for a generic version of Original Formulation Opana® ER, and that FDA suspend and withdraw the approval of any ANDA referencing Original Formulation Opana® ER as its basis for approval. The second Citizen Petition (Docket No. FDA-2012-P-0951), which was recently supplemented, primarily concerns the requirements to obtain approval of an ANDA for a generic version of Opana® ER CRF, but also brings Original Formulation Opana® ER into the mix.

“FDA has not carried out its responsibility under 21 C.F.R. § 314.161(a) to make a determination sua sponte as to whether Endo discontinued Original Formulation Opana® ER for reasons of safety,†alleges Endo. That regulation requires FDA to determine, prior to approving a pending ANDA that refers to a drug product that is no longer marketed, and “[w]henever a listed drug is voluntarily withdrawn from sale and [ANDAs] that referred to the listed drug have been approved,†whether such discontinuation was for reasons of safety or effectiveness. In addition, the statute (FDC Act § 505(j)(4)(I)) and FDA’s implementing regulations ( 21 C.F.R. § 314.127) provide that FDA may refuse to approve an ANDA if the Agency determines that the RLD was withdrawn from sale for reasons of safety or effectiveness, and that FDA can suspend and withdraw approval of an ANDA if the Agency determines that the RLD was withdrawn from sale for reasons of safety (FDC Act § 505(j)(6)).

“FDA has not taken any action in response to either of Endo’s Citizen Petitions or its recent Supplement that sought to prod the agency into fulfilling its statutory and regulatory obligations, triggered by Endo’s May 31, 2012 Notice that it had withdrawn Original Formulation Opana® ER,†says Endo. Moreover, Endo alleges that FDA has failed to make the legally required discontinuation determination despite

mounting evidence of the public health crisis caused by abuse and misuse of prescription opioid pain relievers; FDA’s awareness that opioid pain relievers that are manufactured without safety features are more susceptible to abuse; FDA’s exhortations to pharmaceutical companies to invest in innovative crush-resistant formulations of opioid pain relievers; Endo’s data demonstrating the safety benefits of Opana® ER CRF over non-crush-resistant versions of the drug; the documented “squeezing-the-balloon effect,†whereby opioid abusers can be expected to quickly learn of and migrate to generic non-crush-resistant formulations, i.e., those pills that may be readily crushed and snorted; and FDA’s knowledge that a non-crush-resistant generic version of Opana® ER is poised to launch on or about January 1, 2013.

The issue of simultaneous marketing of abuse-deterrent brand-name drugs and non-abuse-deterrent generic drugs has been heating up over the past year – not only here in the United States, but, for example, in Canada as well.

In addition to Opana ER, FDA has received several citizen petitions (Docket Nos. FDA-2011-P-0473, FDA-2010-P-0540, and FDA-2010-P-0526) requesting that the Agency determine whether the abuse-deterrent version of OxyContin (oxycodone hydrochloride) Controlled-Release Tablets was discontiued for safety reasons. Congress has also expressed interest in the topic with the introduction of the Stop Tampering of Prescription Pills Act of 2012 (“STOPP Actâ€) in July. As we previously reported, the STOPP Act would amend the FDC Act to, among other things, establish new requirements for the approval of brand-name and generic drugs that are otherwise available in a tamper-resistant formulation, and deem the discontinuation of a non-abuse-deterrent drug after the approval of an abuse-deterrent to be a discontinuation for safety reasons.

Posted at 03:28 PM in Hatch-Waxman, Prescription Drugs and Biologics | Permalink | Comments (0) | TrackBack (0)
November 29, 2012
ASBM Says Distinct USAN Names for Biosimilars are Needed

By Kurt R. Karst –

The Alliance for Safe Biologic Medicines (“ASBMâ€), a self-described “organization composed of diverse healthcare groups and individuals from patients to physicians, innovative medical biotechnology companies, and others who are working together to ensure patient safety is at the forefront of the biosimilars policy discussion,†urges FDA in a new paper to adopt unique non-proprietary names for all biological products licensed under the Public Health Service Act (“PHS Actâ€), and in particular biosimilar versions of reference products (even those that are interchangeable). The paper, titled “It’s All About the Name: What is the Imperative of Adopting Unique Names For Biologic and Biosimilar Therapeutics?,†appeared in the latest edition of the Food and Drug Law Institute’s “Food and Drug Policy Forum,†and is the latest effort by ASBM and its members to advocate for unique biosimilar naming. Over the past few months, ASBM and several member organizations have sent letters to FDA (see here) saying that it is essential that each biosimilar licensed under PHS Act § 351(k) have a unique name in order for patients and physicians to easily distinguish between medicines and to track and trace adverse events for such products.

The “naming issue†has been around since well before the May 23, 2010 enactment of the Biologics Price Competition and Innovation Act of 2009 (“BPCIAâ€), which created the biosimilars pathway in the U.S. For example, in an October 2006 Policy Position on Naming of Biotechnology-Derived Therapeutic Proteins submitted to the World Health Organization (“WHOâ€), several organizations, including PhRMA and BIO, recommended the assignment of distinct International Nonproprietary Names (“INNsâ€) to each biotechnology-derived therapeutic protein produced by different manufacturers in order to “accommodate the acknowledged complexity of protein medicinal products and best meet the WHO Objectives for INNs to facilitate safe prescription and dispensing of medicines and preserve patient safety.†(An INN is the official generic name assigned to a pharmaceutical’s active ingredient by the WHO and applies to each product globally.) Just a month before, FDA had commented (see here, page 9) to the WHO that “INNs for biologicals should not be used to imply product interchangeability in the absence of credible scientific evidence. Likewise, however, INNs should not be used to differentiate biological products with the same active ingredient(s) when credible scientific data demonstrate that no pharmacologically relevant differences exist.â€

The BPCIA, as enacted, does not specifically address biosimilar product naming. Although previous biosimilar legislation did address the issue, such as Representative Henry Waxman’s (D-CA) Access to Life-Saving Medicine Act (H.R. 1038) and Senator Judd Gregg’s (R-NH) Affordable Biologics for Consumers Act (S. 1505) (both from 2007), it was ultimately decided that naming provisions should not be included in the final biosimilars bill. Given that “hole,†and an intensifying interest in a U.S. biosimilars market, the “naming issue†has taken on a life of its own. Indeed, it was a much discussed issue at FDA’s November 2010 public hearing on the Agency’s implementation of the BPCIA.

ASBM makes the point in its FDLI Policy Forum paper that:

The need for clear, defined naming considerations and a system to implement an effective tracking and tracing of all biologics – not just biosimilars – stems from the potential of these products to be unexpectedly altered by the manufacturing process, handling, etc., in a manner that could cause unintended harm to patients. Whether the products that FDA approves will have the same name or a different name than the originator biologic will determine how well products can be traced back to a patient who has an adverse reaction.

With this backdrop, ASBM outlines what it says are key components that FDA must address in the biologics naming space, and makes four recommendations:

1. All biologics should receive distinct non-proprietary names;

2. The United States Pharmacopeia should work with FDA to adapt the product monograph system to accommodate the unique attributes of structurally-related, but distinct, biologic medicines;

3. The non-proprietary name of a reference product and product/s biosimilar to it should have a common, shared root but have distinct and differentiating suffixes; and

4. Products designated interchangeable should have a distinct name from the reference product for which they are considered interchangeable to facilitate accurate attribution of adverse events.

On the other side of the fence, the Generic Pharmaceutical Association (“GPhAâ€) has taken the position that “[c]onsistency, patient safety and sound scientific principles necessitate biosimilars having the same INN as their specific reference product,†and that “[t]here is no evidence that a unique INN will improve the effectiveness of pharmacoviligance.†Moreover, says GPhA, the BPCIA does not require different names for biosimilars and their reference product counterparts, and requiring different names for interchangeable products effectively make such a determination meaningless.

Posted at 11:21 PM in Hatch-Waxman, Prescription Drugs and Biologics | Permalink | Comments (0) | TrackBack (0)
In a FSMA First, FDA Suspends a Food Facility’s Registration

By Ricardo Carvajal & John R. Fleder -

On November 26th, Commissioner Hamburg issued an order suspending the registration of the Sunland Inc. food manufacturing facility alleged to be at the heart of the ongoing recall of peanut products potentially contaminated with Salmonella. Until the order is vacated and the registration is reinstated, Sunland may not introduce food from the facility into interstate or intrastate commerce. This marks the first time that FDA has exercised this authority, which was conferred on the agency by the Food Safety Modernization Act ("FSMA"), enacted on January 4, 2011.

If FDA determines that food manufactured, processed, packed, received, or held by a registered facility has a reasonable probability of causing serious adverse health consequences or death to humans or animals, FDA can suspend the registration of the facility that (1) created, caused, or was otherwise responsible for such reasonable probability; or (2) knew of, or had reason to know of, such reasonable probability, and packed, received, or held such food. The authority to suspend a registration cannot be delegated by the Commissioner.

FDA determined that Sunland’s products have a reasonable probability of causing serious adverse health consequences or death to humans, and that the facility created, caused, or was otherwise responsible for the probability. FDA relied in part on multiple test results purportedly showing that the products manufactured, processed, packed, and held by the facility “are contaminated with Salmonella, or are at risk for contamination with Salmonella, based on the conditions in [the] facility.†FDA cited both its own product and environmental test results, and those provided to FDA by the facility. FDA also questioned the facility’s decision to release certain products into commerce:

Your facility distributed at least a portion of eight (8) lots of peanut and almond butter... after composite testing of those lots revealed the presence of Salmonella. Specifically, when composite testing of a lot was positive for Salmonella, individual containers of product from the positive tested lots were re-tested and portions, or all, of these lots were distributed based on the re-test (non-composite) testing. The initial Salmonella positive composite test results were disregarded. At least one of the batches from a lot with initial positive composite test results... that was ultimately distributed, contained a Pulsed Field Gel Electrophoresis (PFGE) pattern that was indistinguishable from the clinical isolates for the outbreak strain Salmonella Bredeney. When a PFGE pattern of an isolate is indistinguishable from the pattern of another isolate from a common source, it is highly likely that the two isolates are the same strain of Salmonella Bredeney.

Sunland has the opportunity to request an informal hearing on reinstatement of its registration. The request must be submitted within 3 business days after issuance of the order unless Sunland wants a hearing within 2 business days, in which case the request must be submitted within 1 business day. The request “must present specific facts showing that there is a genuine and substantial issue of fact that warrants a hearing.†The order states that “[a] hearing will not be granted on issues of policy or law.†If the request is granted, the hearing will be conducted under the procedures specified in 21 CFR Part 16.

On its website, Sunland issued a statement suggesting that FDA’s decision caught Sunland by surprise. In a previously issued statement, Sunland denied having released products “that it knew to be potentially contaminated with harmful microorganisms.â€

This suspension action specifically, and more generally the FDA’s FSMA suspension authority, raise an interesting question. If FDA believes that a food company is involved in a situation the agency believes presents “a reasonable probability of serious adverse health consequences†etc., when will the agency use the suspension authority provided in FSMA and when will it alternatively seek its more traditional remedy of pursuing judicial relief in the form of a seizure action or an injunction case? When will it impose an administrative detention? We are unaware of any FDA guidelines that answer these questions. Although the suspension authority presents the bureaucratic obstacle of requiring the explicit approval of the FDA Commissioner, it also provides FDA with a swift remedy that does not, in and of itself, require involvement from either the Justice Department or a court. With that said, a suspended company should have the legal right to challenge a suspension order in court, by seeking a temporary retraining order to block the order from remaining in effect. We expect many companies to request the expedited hearing provided by FSMA. Indeed, we expect many companies to pursue both remedies in cases where a company does not believe that the suspension order is legally or factually justified.

Seizure actions and injunction cases initiated by FDA and DOJ often proceed on a litigation calendar that does include expedited procedures. There is no doubt that suspension orders issued by FDA will lead to expedited litigation when a company challenges an order. Hopefully, this fact alone will dictate caution by FDA, as it will need to be prepared to defend its order in the administrative hearing provided in 21 CFR Part 16 and also in emergency court proceedings in a suit filed by the suspended entity.

Posted at 01:21 AM in Enforcement, Foods, Foods and Dietary Supplements | Permalink | Comments (0) | TrackBack (0)
November 27, 2012
Massachusetts Issues Final Rule on Drug and Device Manufacturer Marketing Conduct

By Bill Koustas & Alan Kirschenbaum –

In July, we reported that Massachusetts had amended its prescription drug and device marketing law to (among other things) allow pharmaceutical and medical device companies to provide “modest meals and refreshments†as part of an informational presentation to health care practitioners outside of the hospital or medical office setting. (Note that, in this regard, Massachusetts law is less restrictive than the PhRMA Code on Interactions with Healthcare Professionals, which provides that meals offered in connection with informational presentations made by sales representatives or their immediate managers should be limited to in-office or in-hospital settings.)

On September 19, 2012, the Massachusetts Department of Public Health ("DPH") issued a temporary emergency rule to implement the statutory amendments. The emergency rule amended DPH regulations in two significant ways. First, in accordance with the statutory amendment, it removed the prohibition against providing meals to health care practitioners outside of the office or hospital setting, while also requiring pharmaceutical and medical device companies to submit quarterly reports detailing any activities where such meals or refreshments are provided. Second, in light of the physician payment sunshine provisions of the Affordable Care Act, the emergency rule removed the requirement to annually report other permitted gifts to covered recipients after calendar year 2012.

On November 21, 2012, DPH issued a final rule to replace the earlier emergency rule. The final rule, which will take effect on December 7, 2012, is similar to the emergency rule, but with a few important modifications. First, the final rule restores the annual reporting requirement for 2013 and subsequent years to the extent that the required information does not duplicate information that is reported to the federal government under the federal sunshine provisions and that is then reported by the federal government to Massachusetts in annual reports. Since the federal sunshine provisions cover only remuneration provided to physicians and teaching hospitals, annual reports to Massachusetts will still be required for remuneration provided to other “Covered Recipients†under the Massachusetts law – i.e., hospitals, nursing homes, pharmacists, nurse practitioners, and other practitioners and providers who are authorized to prescribe, dispense, or purchase drugs.

The final rule retains the quarterly reporting requirement for out-of-office meals and refreshments, but does not specify a reporting deadline. Presumably, DPH will notify manufacturers about the quarterly report deadline in a future communication. Interestingly, DPH noted in an explanatory memorandum that much of the information reported in the quarterly reports will likely be covered by the federal sunshine provisions and therefore be preempted, but DPH decided to retain the quarterly reporting requirement regardless.

In issuing the final rule, DPH rejected commenters’ requests to place a monetary cap on what is considered a “modest†meal and to exclude alcoholic beverages. The definition of “modest meals and refreshments†continues to include both food and drinks without restrictions on alcohol, and the benchmark for “modest†remains what a practitioner “might purchase when dining at his or her own expense,†as judged by local standards.

Posted at 06:11 PM in Fraud and Abuse, Health Care | Permalink | Comments (0) | TrackBack (0)
November 26, 2012
Apotex Seeks Exclusivity-Triggering Court Decision in Declaratory Judgment Action Over Generic BENICAR Patent

By Kurt R. Karst –

In a recent Complaint for Declaratory Judgment filed in the U.S. District Court for the Northern District of Illinois (Eastern Division), Apotex Inc. (“Apotexâ€) is attempting to trigger 180-day exclusivity for generic versions of the hypertension drug BENICAR (olmesartan medoxomil) Tablets, 5 mg 20 mg, and 40 mg, under the failure-to-market 180-day exclusivity forfeiture provisions at FDC Act § 505(j)(5)(D)(i)(I). The complaint is the latest in a string of thus far unsuccessful attempts by Apotex to obtain an exclusivity-triggering court decision, including exclusivity for generic versions of LEXAPRO (escitalopram) Tablets and LIPITOR (atorvastatin calcium) Tablets (see here).

BENICAR Tablets, which is approved under NDA No. 021286, is listed in the Orange Book with information on two patents: (1) U.S. Patent No. 5,616,599 (“the ‘599 patentâ€), which is identified as a drug product, drug substance, and method-of-use patent and the pediatric exclusivity for which expires on October 25, 2016; and (2) U.S. Patent No. 6,878,703 (“the ‘703 patentâ€), which is identified as a method-of-use patent the pediatric exclusivity for which expires on May 19, 2022. On July 11, 2006, all claims of the ‘703 patent were disclaimed, and, according to Apotex, the patent expired on April 12, 2009 for failure to pay maintenance fees. In the February 2010 Orange Book Cumulative Supplement (page A-4), a “delist requested†flag was added to the ‘703 patent entry. FDA did not remove the ‘703 patent from the Orange Book given the existence of a Paragraph IV certification to the patent. According to FDA’s List of Paragraph IV Patent Certifications, the first ANDA submitted to FDA containing a Paragraph certification to as to either the ‘599 patent or ‘703 patent was April 25, 2006.

According to Apotex, Mylan Laboratories Ltd. (“Mylanâ€) (formerly Matrix) was the first company to submit an ANDA for generic BENICAR Tablets containing a Paragraph IV certification, and Mylan’s ANDA contained Paragraph IV certifications with respect to both the ‘599 and ‘703 patents. Patent infringement litigation was initiated against Mylan with respect to the ‘599 patent but not the ‘703 patent. Mylan failed in its challenge of the ‘599 patent, and in September 2010, the U.S. Court of Appeals for the Federal Circuit affirmed the validy of the patent. Mylan’s subsequent appeal to the U.S. Supreme Court also failed (see here). Thus, Mylan’s Paragraph IV certification to the ‘599 patent converted to a Paragraph III certification, preventing ANDA approval until October 25, 2016 when pediatric exclusivity applicable to the patent expires. FDA tentatively approved Mylan’s ANDA No. 078276 on March 5, 2008. On September 16, 2009, FDA tentatively approved a second ANDA – Sandoz’s ANDA No. 090237. FDA has not yet tentatively approved Apotex’s ANDA No. 204089, which was submitted years after the Mylan ANDA, and contains a Paragraph IV certification to the ‘703 patent. Patent infringement litigation was not initiated against Apotex with respect to the ‘703 patent.

Under the 180-day exclusivity failure-to-market forfeiture provisions at FDC Act § 505(j)(5)(D)(i)(I), there must be two events – or “bookends†– to calculate a “later of†event between items (aa) and (bb). The first bookend date under item (aa) is the earlier of the date that is:

(AA) 75 days after the date on which the approval of the application of the first applicant is made effective under subparagraph (B)(iii); or

(BB) 30 months after the date of submission of the application of the first applicant

That event has already happened here given the April 25, 2006 date on the List of Paragraph IV Patent Certifications. The other bookend – the (bb) part of the equation – provides that the (bb) date is “the date that is 75 days after the date as of which, as to each of the patents with respect to which the first applicant submitted and lawfully maintained a [Paragraph IV] certification qualifying the first applicant for the 180-day exclusivity period,†one of three events occurs:

(AA) In an infringement action brought against that applicant with respect to the patent or in a declaratory judgment action brought by that applicant with respect to the patent, a court enters a final decision from which no appeal (other than a petition to the Supreme Court for a writ of certiorari) has been or can be taken that the patent is invalid or not infringed.

(BB) In an infringement action or a declaratory judgment action described in [FDC Act § 505(j)(5)(D)(i)(I)(bb)(AA)], a court signs a settlement order or consent decree that enters a final judgment that includes a finding that the patent is invalid or not infringed.

(CC) The patent information submitted under [FDC Act § 505(b) or (c)] is withdrawn by the holder of the application approved under subsection (b).

The (AA) and (BB) court decision events under item (bb) can be triggered in patent infringement litigation by “the first applicant or any other applicant (which other applicant has received tentative approval).†Based on the D.C. Circuit’s March 2, 2010 decision in Teva Pharms USA, Inc. v. Sebelius, a mere patent delisting request is not enough to trigger a forfeiture event under the failure-to-market forfeiture, and in particular under subitem (CC). Moreover, FDA, in the context of the Teva decision, ruled in a Letter Decision that the Court’s reasoning “appears to preclude a forfeiture of exclusivity on the basis of a patent expiration where the expiration is in the control of the NDA holder,†such as patent expiration for failure topay maintenance fees.

Given these decisions, a subsequent ANDA sponsor, like Apotex, has limited options to trigger the forfeiture of a first applicant’s 180-day exclusivity eligibility. Apotex’s Complaint seeks a declaration of non-infringement and a declaration that FDA may approve Apotex’s ANDA No. 204089:

whenever that application is otherwise in condition for approval, without awaiting any further order, judgment, or decree of this Court; that the judgment entered in this case is a judgment reflecting a decision that the patent in suit is not infringed pursuant to 21 U.S.C. § 355 (j)(5)(B)(iii)(I)(aa); and that the thirty-month period referred to in 21 U.S.C. § 355(j)(5)(B)(iii) and any other marketing exclusivity periods to which Plaintiffs might otherwise be entitled (including any pediatric exclusivity) with respect to the ’703 patent are shortened to expire upon the date of entry of judgment in this case . . . .

Given that FDA has not yet tentatively approved Apotex’s ANDA No. 204089, this case, like other declaratory judgment actions before it, raises several questions . . . . and not just about the “case or controversy†requirement under Article III of the U.S. Constitution for a court to have jurisdiction in an ANDA Hatch-Waxman declaratory judgment action. This case once again raises the question of how FDA might interpret the “which other applicant has received tentative approval†parenthetical at FDC Act § 505(j)(5)(D)(i)(I)(bb). If a subsequent applicant first obtains a final court decision in its favor and then tentative approval, when does the 75-day period begin? Is the tentative approval retroactive to the date of the final court decision, or would FDA interpret the statute such that the 75-day period begins on the date on which the subsequent applicant completed the statutory criteria? Or, might FDA interpret the statute such that the 75-day period does not even begin under such a scenario because a subsequent applicant must have tentative approval at the time there is a final court decision?

Posted at 10:19 PM in Hatch-Waxman, Prescription Drugs and Biologics | Permalink | Comments (0) | TrackBack (0)
November 25, 2012
“Product Hopping†Antitrust Lawsuit Takes on a Heightened Profile with Proposed FTC Amicus Brief

By Kurt R. Karst –

A Complaint filed earlier this year by Mylan Pharmaceuticals Inc. (“Mylanâ€) in the U.S. District Court for the Eastern District of Pennsylvania alleging that Warner Chilcott and Mayne violated Sections 1 and 2 of the Sherman Act by engaged in so-called “product hopping†with respect to DORYX (doxycycline hyclate) caught our attention. After all, the Complaint opens with the following salvo:

This action is brought as a result of Defendants’ relentless efforts to obstruct and constrain competition through an admittedly “anti-generic strategy.†Through multiple, concerted, and deliberate anticompetitive tactics commenced as early as 2005, Defendants have harmed [Mylan] and the public by preventing and/or delaying generic competition to Doryx – a delayed-release doxycycline hyclate product prescribed for the treatment of severe acne and other bacterial infections – years earlier. Defendants have accomplished their anticompetitive goals through the use of various strategies that were intentionally designed to unlawfully interfere with the regulatory process, cause delays in the approval of generic versions of Doryx, and disrupt the market for generic Doryx. This conduct violates Sections 1 and 2 of the Sherman Act, as Defendants have monopolized and restrained trade in the market for delayed-release doxycycline hyclate products.

We watched as other Plaintiffs – Direct and Indirect Purchasers – joined the case through a consolidation of related cases (see here), and filed the case in our memory bank until such time that something noteworthy (or, in our speak, “blogworthyâ€) happened. That day has come.

Last week, the Federal Trade Commission (“FTCâ€) filed a Motion seeking leave to file an amicus brief in the case to assist the court in its assessment of whether the Plaintiffs have plausibly alleged exclusionary conduct sufficient to state a claim under Section 2 of the Sherman Act. In doing so, the FTC also addresses what it says is the “appropriate antitrust framework to apply when assessing allegations that a brand drug reformulation unlawfully delayed or inhibited generic competition.†But before we get into the case, some background on “product hopping†is necessary.

Back in 2010, FTC Commissioner Rosch defined “product hopping†in a speech (pages 14-17) as the practice of “introducing new patented products with minor or no substantive improvements in the hopes of preventing substitution to lower-priced generics.†As the FTC explains in its proposed amicus brief, product hopping can work in the following way:

[F]irst, the brand manufacturer makes minor non-therapeutic changes to the brand product, such as a dosage or form change. Next, prior to generic entry, it removes the original product from the marketplace, or accomplishes this indirectly, such as by recalling supply of the original product or raising the price of the original product by a meaningful amount above the reformulated one. Such conduct can push patients and physicians to abandon the original product. In this way, a brand manufacturer can convert existing market demand for the original product to its reformulated product – not because physicians and patients prefer it, but simply because the original product is no longer as available or is more costly. Once the original version of the brand product is less available or more expensive, physicians will stop writing prescriptions for it. Because the prescription must contain, among other things, the same dosage and form as the generic for a pharmacist to substitute it for the brand, a product switch will effectively eliminate substitution at the pharmacy counter and thus meaningful generic competition.

(For a discussion of the intersection of patent settlement agreements and product hopping, see Michael A. Carrier’s “A Real-World Analysis of Pharmaceutical Settlements: The Missing Dimension of Product Hopping.â€)

In the case of DORYX, Mylan alleges that Defendants effectuated three successive drug product reformulations to impeded generic competition: first, a conversion from DORYX Capsules to DORYX Tablets; second, from DORYX Tablets in 75 mg and 100 mg strengths to a DORYX Tablets 150 mg strength; and third, from a single-scored version of DORYX Tablets 150 mg to a dual-scored version of DORYX Tablets 150 mg. (A Warner Chilcott citizen petition related to this third conversion – Docket No. FDA-2011-P-0702 – was denied in February 2012.) Mylan also alleges that a fourth conversion was in the works – a formulation change of DORYX Tablets 150 mg. It is these conversions, argues Mylan, that foreclosed the company from competing in the various relevant markets identified in the Complaint and that are anticompetitive.

Warner Chilcott filed a Motion to Dismiss Mylan’s Complaint (and that of the Direct Purchasers) saying that it alleges “nothing more than innovation by Defendants, and the marketing of those innovations once government approvals were obtained,†which is not illegal under the Sherman Act. (Warner Chilcott also filed a Motion to Dismiss the Indirect Purchasers’ Complaint, which has been opposed, and Mayne filed a Motion to Dismiss the Mylan and Direct Purchasers’ Complaints.) According to Warner Chilcott, the DORYX conversions are per se lawful and that product changes (or redesigns or reformulations) can never constitute exclusionary conduct: “such conduct is either competition-enhancing (if the new version represented an improvement), or at worst competition-neutral because one version was replaced by another.†(Italics in original) As such, argues Warner Chilcott, Plaintiffs’ claims should be dismissed.

Not so, say Mylan and the Direct Purchasers in their Oppositions briefs (here and here). They cite Abbott Labs. v. Teva Pharms. USA, Inc., 432 F. Supp. 2d 408 (D. Del. 2006), which is referred to as “TriCor,†as articulating the appropriate standard for assessing whether there is a plausible allegation of exclusionary conduct sufficient to state a claim under Section 2 of the Sherman Act. In TriCor, the Delaware District Court denied a Motion to Dismiss where the brand-name company argued that its product changes were per se lawful. The court also rejected the suggestion that plaintiffs in that case were required to prove that the “new formulations [of the drug] were absolutely no better than the prior version or that the only purpose of the innovation was to eliminate the complementary product of a rival.†Instead, the district court, citing United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir 2001) (en banc), said that “if plaintiffs show anticompetitive harm from the formulation changes, that harm will be weighed against any benefits presented by defendants.â€

The FTC, in its proposed amicus brief, says that drug product redesigns can constitute exclusionary conduct, and that, like the plaintiffs in Tricor, Plaintiffs in the DORYX case have articulated a plausible claim that the DORYX conversions are unlawful under Section 2 of the Sherman Act. “The allegations that defendants used product reformulations to manipulate the pharmaceutical regulatory system and thereby suppress generic competition are sufficient to state a claim of exclusionary conduct. Applying a per se legal standard, as Warner Chilcott effectively advances here, would entitle brand pharmaceutical companies, as a matter of law, to manipulate the FDA regulatory process and undermine state and federal laws that encourage generic competition,†writes the FTC.

Posted at 05:42 PM in Hatch-Waxman, Prescription Drugs and Biologics | Permalink | Comments (0) | TrackBack (0)
November 22, 2012
No Preemption of California Class Action Targeting Nutrient Content Claims

By Riëtte van Laack –

In April 2012, a California consumer filed a class action lawsuit against The Hershey Company alleging that Defendant’s Special Dark Chocolate Bars, Special Dark Kisses, Special Dark Cocoa and Cocoa were misbranded because they carried impermissible nutrient content claims, including nutrient content claims about antioxidants and “healthy†claims, and unapproved health claims. Plaintiff’s action under several California laws includes claims for disgorgement, restitution and punitive damages.

Defendant filed a motion to dismiss arguing that the action was precluded by § 310 of the Federal Food, Drug, and Cosmetic Act (“FDC Actâ€) (21 U.S.C. § 337(a)), which states that “proceedings for the enforcement, or to restrain violations, of the [FDC Act] shall be in the name of the United States,†thus excluding private enforcement. However, in an opinion handed down on November 9, the District Court for the Northern District of California rejected this argument because Plaintiff’s action was based on state law provisions that “mirror the relevant sections of the [FDC Act].â€

The Court further concluded that Plaintiff’s claims were not preempted because § 403A of the FDC Act expressly allows states to establish requirements for nutritional labeling identical to the FDC Act. Plaintiff’s action was based on state law provisions that would not require that Defendant undertake food labeling or representations different from the requirements of the FDC Act or FDA regulations.

This decision is yet another reminder that, at least in California, violations of the nutrition labeling requirements of the FDC Act and FDA regulations may result in private actions under state law with far different consequences (including monetary damages) than actions by FDA.

Posted at 06:32 PM in Foods, Foods and Dietary Supplements | Permalink | Comments (0) | TrackBack (0)
November 20, 2012
FDA Seeks Comments on Custom Devices

By Jennifer D. Newberger –

Section 520(b) of the Federal Food, Drug, and Cosmetic Act ("FDC Act") exempts “custom devices†from the performance standards or premarket approval ("PMA") requirements of sections 514 or 515 if certain criteria are met. The Food and Drug Administration Safety and Innovation Act ("FDASIA"), signed into law in July 2012 (see here), amended section 520(b). Though Congress may have been trying to make it easier for a manufacturer to qualify for the custom device exemption, the FDASIA amendment appears to have enumerated additional requirements, making it more difficult to meet the exemption.

As amended, section 520(b) will exempt devices from the requirements of section 514 or 515 if the device:

Is “created or modified in order to comply with the order of an individual physician or dentist†or other specified healthcare practitioner;
Must deviate from a requirement of section 514 or 515 in order to comply with the order of the practitioner;
“[I]s not generally available in the United States in finished form through labeling or advertising by the manufacturer, importer, or distributor for commercial distributionâ€;
“[I]s designed to treat a unique pathology or physiological condition that no other device is domestically available to treatâ€;
Is intended to meet the special needs of a practitioner “in the course of the professional practice†of the practitioner or is “intended for use by an individual patient named in such order†of the practitioner;
Is made on a case-by-case basis “to accommodate the unique needs of individuals†described above.

Additionally, to qualify as a custom device, the device must be “for the purpose of treating a sufficiently rare condition, such that conducting clinical investigations on such device would be impractical,†production of the device must be limited to no more than five per year of a particular device type, and the manufacturer of the custom device must notify FDA annually about the production of such devices.

Earlier this week, FDA issued a notice stating that the Agency is now seeking “information on and examples of appropriate uses of the custom device exemption.†77 Fed. Reg. 69,488, 69,488 (Nov. 19, 2012). In particular, FDA is seeking information related to instances where the manufacturers or healthcare practitioners have used, would like to have used, or plan to use, the exemption; product areas other than orthopedic and dental devices in which the exemption may be useful; and how often custom devices are ordered to due a unique need of the practitioner (as opposed to the patient).

Historically, FDA has taken a very restrictive view of custom devices. The amended criteria required will result in fewer devices qualifying for the custom device exemption. Hopefully the comments will provide FDA with a better understanding of the types of patients, practitioners, and circumstances that would result in appropriate use of the exemption.

Posted at 05:25 PM in Medical Devices | Permalink | Comments (0) | TrackBack (0)
Robert Dormer to Speak at ACI Orphan Drugs and Rare Diseases Conference

Hyman, Phelps & McNamara’s Robert A. Dormer will be speaking at the American Conference Institute’s upcoming conference, “Orphan Drugs and Rare Diseases – Maximizing Opportunities and Overcoming Stumbling Blocks in the Designation and Development Process.†The conference will take place on November 28th and 29th at the Hyatt Regency in Boston, Massachusetts. The conference is designed to give practitioners the complete picture of the orphan drugs and rare diseases landscape, including evolving laws and regulations, commercial implications, patent considerations, and the international framework. Among other things, speakers, including Mr. Dormer, will discuss strategies to offset potential risks inherent to orphan drug development including:

Understanding and factoring in the unique incentives, including favorable exclusivity, pricing, and tax benefits, for companies who decide to pursue designation;
Replenishing product pipelines in the face of the patent cliff through novel therapies;
Preparing for eventual pharmacovigilance and labeling issues downstream as designation takes off;
Designing clinical trials endpoints and proving safety and efficacy in a smaller population; and
Protecting orphan drug status and keeping competitors at bay.

To view the conference brochure and register for the conference see here. FDA Law Blog readers may obtain a $200 registration discount by using code FDALB 200.

Posted at 10:37 AM in Miscellaneous, Orphan Drugs | Permalink | Comments (0) | TrackBack (0)
November 19, 2012
CSPI Jacks Up Scrutiny of Caffeination and Fortification

By Ricardo Carvajal –

The Center for Science in the Public Interest (“CSPIâ€) is taking on caffeination and fortification of foods with renewed vigor. In a letter to FDA/CFSAN’s Office of Compliance, CSPI alleges that certain foods to which caffeine is added “appear to violate [FDA’s] determination (21 CFR 182.1180) that caffeine is generally recognized as safe only in cola-type beverages at concentrations of 0.02 percent or less.†CSPI further contends that “the proliferation of caffeinated foods and beverages could lead to troublesome or serious health problems for children and adults who consume those products – especially when they consume multiple products over the day.â€

CSPI also filed a class action against Dr. Pepper Snapple Group, Inc. alleging that the company’s addition of vitamin E to its carbonated beverages violates FDA’s Fortification Policy at 21 C.F.R. § 104.20. CSPI contends that both FDA and federal courts have recognized that the Fortification Policy is legally binding. CSPI further alleges that the products’ labeling is misleading because it implies that the products’ antioxidant content is derived from real fruit (as opposed to vitamin E), and because the products contain insufficient vitamin E to “provide the health benefits that reasonable consumers associate with antioxidants.â€

Posted at 05:50 PM in Foods, Foods and Dietary Supplements | Permalink | Comments (0) | TrackBack (0)
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Endo Health Solutions Inc. (Formerly Known as Endo Pharmaceuticals Holdings Inc.) (ENDP) Loses Suit to Stop Sales of Generic Painkiller

12/20/2012 7:10:35 AM

CHADDS FORD, Pa., Dec. 19, 2012 /PRNewswire/ -- Endo Health Solutions Inc. (Nasdaq: ENDP) announced today that U.S. District Judge Reggie B. Walton, of the U.S. District Court for the District of Columbia, dismissed the case of Endo's subsidiary, Endo Pharmaceuticals Inc., against the U.S. Food and Drug Administration (FDA). Endo Pharmaceuticals argued that FDA failed to meet its legal obligation to determine in a timely manner whether the original formulation of OPANA ER was withdrawn from the market for reasons of safety. The judge ruled against Endo, noting that he believes the FDA has not unduly delayed making a determination on the matter. The FDA stated that it intends to make its determination by May 2013.

Endo reformulated OPANA ER to a version designed to be crush-resistant and launched this reformulated version in March 2012. The ruling by the court now allows for a generic non-tamper resistant version to enter the market on Jan. 2, 2013.

"We are extremely disappointed by today's decision," said Dave Holveck, president and chief executive officer of Endo Health Solutions. "Despite the fact that the generic product will not be therapeutically equivalent to the crush resistant formulation, the launch of a generic non-crush-resistant version of OPANA ER in January will irreparably undermine the significant progress made in the reduction of abuse and misuse of oxymorphone. We are hopeful that FDA will ultimately make the right decision before May in light of the surveillance data supporting that the original formulation of OPANA ER was discontinued for reasons of safety."

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This is true. I called Impax to confirm.
January 04, 2013
Impax Launches Generic Opana ER Tablets

Impax announced the launch of Oxymorphone HCl Extended-Release Tablets, the generic version of Endo's Opana ER. Opana ER is indicated for moderate to severe pain when the use of a continuous, around-the-clock opioid is required for an extended period of time; not for "as-needed" use.

Oxymorphone, an opioid agonist, is relatively selective for the mu receptor, although it can interact with other opioid receptors at higher doses. Specific central nervous system (CNS) opiate receptors and endogenous compounds with morphine-like activity have been identified throughout the brain and spinal cord and are likely to play a role in the expression and perception of analgesic effects.

Impax is commencing shipment of Oxymorphone HCl Extended-Release Tablets through Global Pharmaceuticals in 5mg, 7.5mg, 10mg, 15mg, 20mg, 30mg, and 40mg in 30-, 100-, and 1000-count bottles.

For more information call or visit impaxlabs.com.

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Global/Impax Pharmaceuticals is now selling the generic version of the original formulation of Opana in all strengths. They started shipping in January of this year,(2013). Check with your pharmacy to see if they carry it. Most pharmacists are still unaware of Opana being available as a generic. It is called oxymorphone. I hope this helps you out!

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