§ 355a. Pediatric studies of drugs
(a)
Definitions
As used in this section, the term “pediatric studies” or “studies” means at least one clinical investigation (that, at the Secretary’s discretion, may include pharmacokinetic studies) in pediatric age groups (including neonates in appropriate cases) in which a drug is anticipated to be used, and, at the discretion of the Secretary, may include preclinical studies.
(b)
Market exclusivity for new drugs
(1)
In general
Except as provided in paragraph (2), if, prior to approval of an application that is submitted under section
355
(b)(1) of this title, the Secretary determines that information relating to the use of a new drug in the pediatric population may produce health benefits in that population, the Secretary makes a written request for pediatric studies (which shall include a timeframe for completing such studies), the applicant agrees to the request, such studies are completed using appropriate formulations for each age group for which the study is requested within any such timeframe, and the reports thereof are submitted and accepted in accordance with subsection (d)(3)—
(A)
(i)
(I)
the period referred to in subsection (c)(3)(E)(ii) of section
355 of this title, and in subsection (j)(5)(F)(ii) of such section, is deemed to be five years and six months rather than five years, and the references in subsections (c)(3)(E)(ii) and (j)(5)(F)(ii) of such section to four years, to forty-eight months, and to seven and one-half years are deemed to be four and one-half years, fifty-four months, and eight years, respectively; or
(B)
(i)
if the drug is the subject of—
(I)
a listed patent for which a certification has been submitted under subsection (b)(2)(A)(ii) or (j)(2)(A)(vii)(II) of section
355 of this title and for which pediatric studies were submitted prior to the expiration of the patent (including any patent extensions); or
(II)
a listed patent for which a certification has been submitted under subsections (b)(2)(A)(iii) or (j)(2)(A)(vii)(III) of section
355 of this title,
(ii)
if the drug is the subject of a listed patent for which a certification has been submitted under subsection (b)(2)(A)(iv) or (j)(2)(A)(vii)(IV) of section
355 of this title, and in the patent infringement litigation resulting from the certification the court determines that the patent is valid and would be infringed, the period during which an application may not be approved under section
355
(c)(3) of this title or section
355
(j)(5)(B) of this title shall be extended by a period of six months after the date the patent expires (including any patent extensions).
(c)
Market exclusivity for already-marketed drugs
(1)
In general
Except as provided in paragraph (2), if the Secretary determines that information relating to the use of an approved drug in the pediatric population may produce health benefits in that population and makes a written request to the holder of an approved application under section
355
(b)(1) of this title for pediatric studies (which shall include a timeframe for completing such studies), the holder agrees to the request, such studies are completed using appropriate formulations for each age group for which the study is requested within any such timeframe, and the reports thereof are submitted and accepted in accordance with subsection (d)(3)—
(A)
(i)
(I)
the period referred to in subsection (c)(3)(E)(ii) of section
355 of this title, and in subsection (j)(5)(F)(ii) of such section, is deemed to be five years and six months rather than five years, and the references in subsections (c)(3)(E)(ii) and (j)(5)(F)(ii) of such section to four years, to forty-eight months, and to seven and one-half years are deemed to be four and one-half years, fifty-four months, and eight years, respectively; or
(B)
(i)
if the drug is the subject of—
(I)
a listed patent for which a certification has been submitted under subsection (b)(2)(A)(ii) or (j)(2)(A)(vii)(II) of section
355 of this title and for which pediatric studies were submitted prior to the expiration of the patent (including any patent extensions); or
(II)
a listed patent for which a certification has been submitted under subsection (b)(2)(A)(iii) or (j)(2)(A)(vii)(III) of section
355 of this title,
the period during which an application may not be approved under section
355
(c)(3) of this title or section
355
(j)(5)(B)(ii) of this title shall be extended by a period of six months after the date the patent expires (including any patent extensions); or
(ii)
if the drug is the subject of a listed patent for which a certification has been submitted under subsection (b)(2)(A)(iv) or (j)(2)(A)(vii)(IV) of section
355 of this title, and in the patent infringement litigation resulting from the certification the court determines that the patent is valid and would be infringed, the period during which an application may not be approved under section
355
(c)(3) of this title or section
355
(j)(5)(B) of this title shall be extended by a period of six months after the date the patent expires (including any patent extensions).
(d)
Conduct of pediatric studies
(1)
Request for studies
(A)
In general
The Secretary may, after consultation with the sponsor of an application for an investigational new drug under section
355
(i) of this title, the sponsor of an application for a new drug under section
355
(b)(1) of this title, or the holder of an approved application for a drug under section
355
(b)(1) of this title, issue to the sponsor or holder a written request for the conduct of pediatric studies for such drug. In issuing such request, the Secretary shall take into account adequate representation of children of ethnic and racial minorities. Such request to conduct pediatric studies shall be in writing and shall include a timeframe for such studies and a request to the sponsor or holder to propose pediatric labeling resulting from such studies.
(2)
Written request for pediatric studies
(A)
Request and response
(i)
In general
If the Secretary makes a written request for pediatric studies (including neonates, as appropriate) under subsection (b) or (c), the applicant or holder, not later than 180 days after receiving the written request, shall respond to the Secretary as to the intention of the applicant or holder to act on the request by—
(ii)
Disagree with request
If, on or after September 27, 2007, the applicant or holder does not agree to the request on the grounds that it is not possible to develop the appropriate pediatric formulation, the applicant or holder shall submit to the Secretary the reasons such pediatric formulation cannot be developed.
(B)
Adverse event reports
An applicant or holder that, on or after September 27, 2007, agrees to the request for such studies shall provide the Secretary, at the same time as the submission of the reports of such studies, with all postmarket adverse event reports regarding the drug that is the subject of such studies and are available prior to submission of such reports.
(3)
Meeting the studies requirement
Not later than 180 days after the submission of the reports of the studies, the Secretary shall accept or reject such reports and so notify the sponsor or holder. The Secretary’s only responsibility in accepting or rejecting the reports shall be to determine, within the 180-day period, whether the studies fairly respond to the written request, have been conducted in accordance with commonly accepted scientific principles and protocols, and have been reported in accordance with the requirements of the Secretary for filing.
(e)
Notice of determinations on studies requirement
(1)
In general
The Secretary shall publish a notice of any determination, made on or after September 27, 2007, that the requirements of subsection (d) have been met and that submissions and approvals under subsection (b)(2) or (j) of section
355 of this title for a drug will be subject to the provisions of this section. Such notice shall be published not later than 30 days after the date of the Secretary’s determination regarding market exclusivity and shall include a copy of the written request made under subsection (b) or (c).
(2)
Identification of certain drugs
The Secretary shall publish a notice identifying any drug for which, on or after September 27, 2007, a pediatric formulation was developed, studied, and found to be safe and effective in the pediatric population (or specified subpopulation) if the pediatric formulation for such drug is not introduced onto the market within one year after the date that the Secretary publishes the notice described in paragraph (1). Such notice identifying such drug shall be published not later than 30 days after the date of the expiration of such one year period.
(f)
Internal review of written requests and pediatric studies
(1)
Internal review
The Secretary shall utilize the internal review committee established under section
355d of this title to review all written requests issued on or after September 27, 2007, in accordance with paragraph (2).
(2)
Review of written requests
The committee referred to in paragraph (1) shall review all written requests issued pursuant to this section prior to being issued.
(3)
Review of pediatric studies
The committee referred to in paragraph (1) may review studies conducted pursuant to this section to make a recommendation to the Secretary whether to accept or reject such reports under subsection (d)(3).
(4)
Activity by committee
The committee referred to in paragraph (1) may operate using appropriate members of such committee and need not convene all members of the committee.
(5)
Documentation of committee action
For each drug, the committee referred to in paragraph (1) shall document, for each activity described in paragraph (2) or (3), which members of the committee participated in such activity.
(6)
Tracking pediatric studies and labeling changes
The Secretary, in consultation with the committee referred to in paragraph (1), shall track and make available to the public, in an easily accessible manner, including through posting on the Web site of the Food and Drug Administration—
(B)
the specific drugs and drug uses, including labeled and off-labeled indications, studied under such sections;
(C)
the types of studies conducted under such sections, including trial design, the number of pediatric patients studied, and the number of centers and countries involved;
(D)
the number of pediatric formulations developed and the number of pediatric formulations not developed and the reasons such formulations were not developed;
(g)
Limitations
Notwithstanding subsection (c)(2), a drug to which the six-month period under subsection (b) or (c) has already been applied—
(h)
Relationship to pediatric research requirements
Notwithstanding any other provision of law, if any pediatric study is required by a provision of law (including a regulation) other than this section and such study meets the completeness, timeliness, and other requirements of this section, such study shall be deemed to satisfy the requirement for market exclusivity pursuant to this section.
(i)
Labeling changes
(1)
Priority status for pediatric applications and supplements
Any application or supplement to an application under section
355 of this title proposing a labeling change as a result of any pediatric study conducted pursuant to this section—
(2)
Dispute resolution
(A)
Request for labeling change and failure to agree
If, on or after September 27, 2007, the Commissioner determines that the sponsor and the Commissioner have been unable to reach agreement on appropriate changes to the labeling for the drug that is the subject of the application, not later than 180 days after the date of submission of the application—
(B)
Action by the Pediatric Advisory Committee
Not later than 90 days after receiving a referral under subparagraph (A)(ii), the Pediatric Advisory Committee shall—
(C)
Consideration of recommendations
The Commissioner shall consider the recommendations of the Pediatric Advisory Committee and, if appropriate, not later than 30 days after receiving the recommendation, make a request to the sponsor of the application to make any labeling change that the Commissioner determines to be appropriate.
(D)
Misbranding
If the sponsor of the application, within 30 days after receiving a request under subparagraph (C), does not agree to make a labeling change requested by the Commissioner, the Commissioner may deem the drug that is the subject of the application to be misbranded.
(E)
No effect on authority
Nothing in this subsection limits the authority of the United States to bring an enforcement action under this chapter when a drug lacks appropriate pediatric labeling. Neither course of action (the Pediatric Advisory Committee process or an enforcement action referred to in the preceding sentence) shall preclude, delay, or serve as the basis to stay the other course of action.
(j)
Other labeling changes
If, on or after September 27, 2007, the Secretary determines that a pediatric study conducted under this section does or does not demonstrate that the drug that is the subject of the study is safe and effective, including whether such study results are inconclusive, in pediatric populations or subpopulations, the Secretary shall order the labeling of such product to include information about the results of the study and a statement of the Secretary’s determination.
(k)
Dissemination of pediatric information
(1)
In general
Not later than 210 days after the date of submission of a report on a pediatric study under this section, the Secretary shall make available to the public the medical, statistical, and clinical pharmacology reviews of pediatric studies conducted under subsection (b) or (c).
(2)
Dissemination of information regarding labeling changes
Beginning on September 27, 2007, the Secretary shall include as a requirement of a written request that the sponsors of the studies that result in labeling changes that are reflected in the annual summary developed pursuant to subsection (f)(3)(F) distribute, at least annually (or more frequently if the Secretary determines that it would be beneficial to the public health), such information to physicians and other health care providers.
(l)
Adverse event reporting
(1)
Reporting in year one
Beginning on September 27, 2007, during the one-year period beginning on the date a labeling change is approved pursuant to subsection (i), the Secretary shall ensure that all adverse event reports that have been received for such drug (regardless of when such report was received) are referred to the Office of Pediatric Therapeutics established under section
393a of this title. In considering the reports, the Director of such Office shall provide for the review of the reports by the Pediatric Advisory Committee, including obtaining any recommendations of such Committee regarding whether the Secretary should take action under this chapter in response to such reports.
(2)
Reporting in subsequent years
Following the one-year period described in paragraph (1), the Secretary shall, as appropriate, refer to the Office of Pediatric Therapeutics all pediatric adverse event reports for a drug for which a pediatric study was conducted under this section. In considering such reports, the Director of such Office may provide for the review of such reports by the Pediatric Advisory Committee, including obtaining any recommendation of such Committee regarding whether the Secretary should take action in response to such reports.
(m)
Clarification of interaction of market exclusivity under this section and market exclusivity awarded to an applicant for approval of a drug under section
355
(j) of this title
If a 180-day period under section
355
(j)(5)(B)(iv) of this title overlaps with a 6-month exclusivity period under this section, so that the applicant for approval of a drug under section
355
(j) of this title entitled to the 180-day period under that section loses a portion of the 180-day period to which the applicant is entitled for the drug, the 180-day period shall be extended from—
(n)
Referral if pediatric studies not completed
(1)
In general
Beginning on September 27, 2007, if pediatric studies of a drug have not been completed under subsection (d) and if the Secretary, through the committee established under section
355d of this title, determines that there is a continuing need for information relating to the use of the drug in the pediatric population (including neonates, as appropriate), the Secretary shall carry out the following:
(A)
For a drug for which a listed patent has not expired, make a determination regarding whether an assessment shall be required to be submitted under section
355c
(b) of this title. Prior to making such a determination, the Secretary may not take more than 30 days to certify whether the Foundation for the National Institutes of Health has sufficient funding at the time of such certification to initiate and fund all of the studies in the written request in their entirety within the timeframes specified within the written request. Only if the Secretary makes such certification in the affirmative, the Secretary shall refer all pediatric studies in the written request to the Foundation for the National Institutes of Health for the conduct of such studies, and such Foundation shall fund such studies. If no certification has been made at the end of the 30-day period, or if the Secretary certifies that funds are not sufficient to initiate and fund all the studies in their entirety, the Secretary shall consider whether assessments shall be required under section
355c
(b) of this title for such drug.
(2)
Public notice
The Secretary shall give the public notice of a decision under paragraph (1)(A) not to require an assessment under section
355c of this title and the basis for such decision.
(o)
Prompt approval of drugs under section
355
(j) when pediatric information is added to labeling
(1)
General rule
A drug for which an application has been submitted or approved under section
355
(j) of this title shall not be considered ineligible for approval under that section or misbranded under section
352 of this title on the basis that the labeling of the drug omits a pediatric indication or any other aspect of labeling pertaining to pediatric use when the omitted indication or other aspect is protected by patent or by exclusivity under clause (iii) or (iv) of section
355
(j)(5)(F) of this title.
(2)
Labeling
Notwithstanding clauses (iii) and (iv) of section
355
(j)(5)(F) of this title, the Secretary may require that the labeling of a drug approved under section
355
(j) of this title that omits a pediatric indication or other aspect of labeling as described in paragraph (1) include—
(3)
Preservation of pediatric exclusivity and other provisions
This subsection does not affect—
(B)
the availability or scope of exclusivity under section
355 of this title for pediatric formulations;
(C)
the question of the eligibility for approval of any application under section
355
(j) of this title that omits any other conditions of approval entitled to exclusivity under clause (iii) or (iv) of section
355
(j)(5)(F) of this title; or
(D)
except as expressly provided in paragraphs (1) and (2), the operation of section
355 of this title.
(p)
Institute of Medicine study
Not later than 3 years after September 27, 2007, the Secretary shall enter into a contract with the Institute of Medicine to conduct a study and report to Congress regarding the written requests made and the studies conducted pursuant to this section. The Institute of Medicine may devise an appropriate mechanism to review a representative sample of requests made and studies conducted pursuant to this section in order to conduct such study. Such study shall—
(1)
review such representative written requests issued by the Secretary since 1997 under subsections (b) and (c);
(2)
review and assess such representative pediatric studies conducted under subsections (b) and (c) since 1997 and labeling changes made as a result of such studies;
(3)
review the use of extrapolation for pediatric subpopulations, the use of alternative endpoints for pediatric populations, neonatal assessment tools, and ethical issues in pediatric clinical trials;
(4)
review and assess the pediatric studies of biological products as required under subsections (a) and (b) of section
355c of this title; and
(q)
Sunset
A drug may not receive any 6-month period under subsection (b) or (c) unless—
(1)
on or before October 1, 2012, the Secretary makes a written request for pediatric studies of the drug;