By Alan M. Kirschenbaum –
Two days ago, during argument before the Supreme Court on the Affordable Care Act ("ACA"), Justice Breyer referred to “loads” of miscellaneous provisions of the Act outside the core insurance provisions. One of these is section 6004, which requires manufacturers and authorized distributors of record to submit information on drug samples to FDA annually beginning April 1, 2012 (this Sunday). Today, FDA issued a brief draft guidance announcing that FDA will exercise its enforcement discretion to extend the deadline for reporting until at least October 1, 2012. The guidance states that FDA will provide notice before revising this policy, indicating the possibly of a further extension. By then, we will know whether this and “loads” of other ACA provisions will survive the Supreme Court’s decision, expected in June. If and when required, the sample information will be submitted electronically through FDA’s Electronic Submissions Gateway.