§ 382. Exports of certain unapproved products
(a)
Drugs or devices intended for human or animal use which require approval or licensing
A drug or device—
(1)
which, in the case of a drug—
(A)
(i)
requires approval by the Secretary under section
355 of this title before such drug may be introduced or delivered for introduction into interstate commerce; or
(2)
which, in the case of a device—
(C)
is a banned device under section
360f of this title, is adulterated, misbranded, and in violation of such sections or Act unless the export of the drug or device is, except as provided in subsection (f) of this section, authorized under subsection (b), (c), (d), or (e) of this section or section
381
(e)(2) of this title. If a drug or device described in paragraphs (1) and (2) may be exported under subsection (b) of this section and if an application for such drug or device under section
355 or
360e of this title or section
262 of title
42 was disapproved, the Secretary shall notify the appropriate public health official of the country to which such drug will be exported of such disapproval.
(b)
List of eligible countries for export; criteria for addition to list; direct export; petition for exemption
(1)
(A)
A drug or device described in subsection (a) of this section may be exported to any country, if the drug or device complies with the laws of that country and has valid marketing authorization by the appropriate authority—
(B)
The Secretary may designate an additional country to be included in the list of countries described in clauses (i) and (ii) of subparagraph (A) if all of the following requirements are met in such country:
(i)
Statutory or regulatory requirements which require the review of drugs and devices for safety and effectiveness by an entity of the government of such country and which authorize the approval of only those drugs and devices which have been determined to be safe and effective by experts employed by or acting on behalf of such entity and qualified by scientific training and experience to evaluate the safety and effectiveness of drugs and devices on the basis of adequate and well-controlled investigations, including clinical investigations, conducted by experts qualified by scientific training and experience to evaluate the safety and effectiveness of drugs and devices.
(ii)
Statutory or regulatory requirements that the methods used in, and the facilities and controls used for—
(iii)
Statutory or regulatory requirements for the reporting of adverse reactions to drugs and devices and procedures to withdraw approval and remove drugs and devices found not to be safe or effective.
(iv)
Statutory or regulatory requirements that the labeling and promotion of drugs and devices must be in accordance with the approval of the drug or device.
(v)
The valid marketing authorization system in such country or countries is equivalent to the systems in the countries described in clauses (i) and (ii) of subparagraph (A).
The Secretary shall not delegate the authority granted under this subparagraph.
(C)
An appropriate country official, manufacturer, or exporter may request the Secretary to take action under subparagraph (B) to designate an additional country or countries to be added to the list of countries described in clauses (i) and (ii) of subparagraph (A) by submitting documentation to the Secretary in support of such designation. Any person other than a country requesting such designation shall include, along with the request, a letter from the country indicating the desire of such country to be designated.
(2)
A drug described in subsection (a) of this section may be directly exported to a country which is not listed in clause (i) or (ii) of paragraph (1)(A) if—
(A)
the drug complies with the laws of that country and has valid marketing authorization by the responsible authority in that country; and
(B)
the Secretary determines that all of the following requirements are met in that country:
(i)
Statutory or regulatory requirements which require the review of drugs for safety and effectiveness by an entity of the government of such country and which authorize the approval of only those drugs which have been determined to be safe and effective by experts employed by or acting on behalf of such entity and qualified by scientific training and experience to evaluate the safety and effectiveness of drugs on the basis of adequate and well-controlled investigations, including clinical investigations, conducted by experts qualified by scientific training and experience to evaluate the safety and effectiveness of drugs.
(ii)
Statutory or regulatory requirements that the methods used in, and the facilities and controls used for the manufacture, processing, and packing of drugs in the country are adequate to preserve their identity, quality, purity, and strength.
(3)
The exporter of a drug described in subsection (a) of this section which would not meet the conditions for approval under this chapter or conditions for approval of a country described in clause (i) or (ii) of paragraph (1)(A) may petition the Secretary for authorization to export such drug to a country which is not described in clause (i) or (ii) of paragraph (1)(A) or which is not described in paragraph (2). The Secretary shall permit such export if—
(A)
the person exporting the drug—
(B)
the appropriate health authority in the country to which the drug is being exported—
(ii)
certifies that the health authority understands that the drug is not approved under this chapter or in a country described in clause (i) or (ii) of paragraph (1)(A); and
(iii)
concurs that the scientific evidence provided pursuant to subparagraph (A) is credible scientific evidence that the drug would be reasonably safe and effective in such country.
The Secretary shall take action on a request for export of a drug under this paragraph within 60 days of receiving such request.
(d)
Anticipation of market authorization
A drug or device intended for formulation, filling, packaging, labeling, or further processing in anticipation of market authorization in any country described in clause (i) or (ii) of subsection (b)(1)(A) of this section may be exported for use in accordance with the laws of that country.
(e)
Diagnosis, prevention, or treatment of tropical disease
(1)
A drug or device which is used in the diagnosis, prevention, or treatment of a tropical disease or another disease not of significant prevalence in the United States and which does not otherwise qualify for export under this section shall, upon approval of an application, be permitted to be exported if the Secretary finds that the drug or device will not expose patients in such country to an unreasonable risk of illness or injury and the probable benefit to health from the use of the drug or device (under conditions of use prescribed, recommended, or suggested in the labeling or proposed labeling of the drug or device) outweighs the risk of injury or illness from its use, taking into account the probable risks and benefits of currently available drug or device treatment.
(2)
The holder of an approved application for the export of a drug or device under this subsection shall report to the Secretary—
(3)
(A)
If the Secretary determines that—
(i)
a drug or device for which an application is approved under paragraph (1) does not continue to meet the requirements of such paragraph; or
(ii)
the holder of an approved application under paragraph (1) has not made the report required by paragraph (2),
the Secretary may, after providing the holder of the application an opportunity for an informal hearing, withdraw the approved application.
(B)
If the Secretary determines that the holder of an approved application under paragraph (1) or an importer is exporting a drug or device from the United States to an importer and such importer is exporting the drug or device to a country for which the Secretary cannot make a finding under paragraph (1) and such export presents an imminent hazard, the Secretary shall immediately prohibit the export of the drug or device to such importer, provide the person exporting the drug or device from the United States prompt notice of the prohibition, and afford such person an opportunity for an expedited hearing.
(f)
Prohibition of export of drug or device
A drug or device may not be exported under this section—
(1)
if the drug or device is not manufactured, processed, packaged, and held in substantial conformity with current good manufacturing practice requirements or does not meet international standards as certified by an international standards organization recognized by the Secretary;
(2)
if the drug or device is adulterated under clause (1), (2)(A), or (3) of section
351
(a) or subsection (c) or (d) of section
351 of this title;
(3)
if the requirements of subparagraphs (A) through (D) of section
381
(e)(1) of this title have not been met;
(4)
(A)
if the drug or device is the subject of a notice by the Secretary or the Secretary of Agriculture of a determination that the probability of reimportation of the exported drug or device would present an imminent hazard to the public health and safety of the United States and the only means of limiting the hazard is to prohibit the export of the drug or device; or
(5)
if the labeling of the drug or device is not—
(6)
if the drug or device is not promoted in accordance with the labeling requirements set forth in paragraph (5).
In making a finding under paragraph (4)(B), (5), or (6) the Secretary shall consult with the appropriate public health official in the affected country.
(g)
Notification of Secretary
The exporter of a drug or device exported under subsection (b)(1) of this section shall provide a simple notification to the Secretary identifying the drug or device when the exporter first begins to export such drug or device to any country listed in clause (i) or (ii) of subsection (b)(1)(A) of this section. When an exporter of a drug or device first begins to export a drug or device to a country which is not listed in clause (i) or (ii) of subsection (b)(1)A) [1] of this section, the exporter shall provide a simple notification to the Secretary identifying the drug or device and the country to which such drug or device is being exported. Any exporter of a drug or device shall maintain records of all drugs or devices exported and the countries to which they were exported.
(h)
References to Secretary and term “drug”
For purposes of this section—
(1)
a reference to the Secretary shall in the case of a biological product which is required to be licensed under the Act of March 4, 1913 [21 U.S.C. 151 et seq.] (37 Stat. 832–833) (commonly known as the Virus-Serum Toxin Act) be considered to be a reference to the Secretary of Agriculture, and
(2)
the term “drug” includes drugs for human use as well as biologicals under section
262 of title
42 or the Act of March 4, 1913 (37 Stat. 832–833) (commonly known as the Virus-Serum Toxin Act).
[1] So in original. Probably should be subsection “(b)(1)(A)”.