FDA Promises to Fight Pedigree Injunction
Today, FDA issued a statement in which it vowed to fight the injunction now barring it from requiring extensive pedigree information from small pharma distributors. The injunction, which stems from a lawsuit brought against the Agency by a group of small wholesale drug distributors in New York State, would effectively prevent FDA from strengthening the weakest link in the pharma supply chain. It could also have an impact on the industry’s adoption of RFID and “track and trace” technologies (which have seen less-than-enthusiastic uptake, given costs, ROI concerns and debates about optimum frequencies, etc.) . It would also seem to make doing business with smaller distributors even less attractive than it already is for drug manufacturers. For well-informed discussion of this subject, read Jayne Juvan and Adam Fein.
Here’s FDA’s “official” position statement, as set out in a Q&A on its web site.
A. What is affected by the preliminary injunction?
- • 21 CFR § 203.50(a). The court order enjoins FDA from implementing 21 CFR § 203.50(a). 21 CFR § 203.50(a)(6), states that information regarding “each prior transaction involving the drug, starting with the manufacture” be included in the pedigree. However, while the preliminary injunction is in effect, pedigrees shall include information regarding prior transactions going back to the manufacturer or the last ADR that sold, purchased, or traded the prescription drugs. FDA encourages wholesalers to include information regarding each prior transaction going back to the manufacturer when that information is available.
- • 21 CFR § 203.50(a)(1)-(5). The court order also enjoins FDA from implementing the language in 21 CFR § 203.50 that requires pedigrees to include lot and control numbers, dosage, container size, and number of containers. As described in more detail below, however, the preliminary injunction does not affect the statutory requirement that pedigrees contain the dates of all listed transactions and the names and addresses of all parties involved in those transactions. In addition, since the court did not enjoin implementation of 21 CFR § 203.3(u), a written agreement between a manufacturer and a wholesaler may limit ADR status to a particular lot number(s), dosage, or the number or size of the containers of prescription drugs. We also note that, without the lot number on the pedigree, it would be extremely difficult to track the inventory that matches the pedigree if the inventory is further sold, purchased or traded. Therefore, FDA recommends that the lot or control number, dosage, and the number and size of the prescription drug containers be included on the pedigree even though it is not required while the preliminary injunction is in effect.
- • Pedigrees for all current and future inventory are affected by the preliminary injunction as long is it remains in effect.