Stop, Collaborate, and Listen – Or Get a WaiverJune 15, 2018
In an attempt to ensure that implementation of the FDCA requirement for shared REMS does not cause undue burden, FDA released two new guidance documents targeting shared REMS systems.
We have seen the negotiation of shared REMS systems succeed – and fail spectacularly resulting in waivers. The REMS system has also been the subject of multiple (denied) citizen petitions. Now, two new guidance documents aim to help innovator and generic companies navigate negotiations when REMS are involved, the Development of a Shared System REMS and Waivers of the Single, Shared System REMS Requirement.
Under Section 505-1 of the FDC Act, FDA can require a REMS if one is necessary to ensure that the benefits of the drug outweigh the risks. When a generic applicant seeks to market a version of an RLD that has an associated REMS with Elements to Assure Safe Use (ETASU), the brand and generic drug sponsors are required to develop a single shared system unless FDA waives the requirement. A lack of shared goals and some level of inherent mistrust can make these negotiations difficult. With the publication of these guidance documents, FDA is attempting to navigate around potential negotiation roadblocks.
The Development of a Shared System REMS guidance details the typical process of developing a shared REMS, including FDA’s role as facilitator. It walks through the benefits of a shared system, the initiation of discussions, the formation of an industry working group, and the submission and assessment procedure. While informative, it provides little in the way of strategy to ensure a successful collaboration.
If and when talks fail, the second guidance becomes relevant. In Waivers of the Single, Shared System REMS Requirement, FDA explains when the agency will consider granting a waiver of the shared system requirement. Waivers will be considered on a case-by-case basis if the burden of forming a shared system outweighs the benefit of a single system or if the REMS is protected intellectual property. FDA will consider a waiver request at any time if the ANDA applicant submits a proposed separate REMS with a request for a waiver of the shared system requirement. FDA will review either a shared system or a proposed separate system with waiver request as part of the application for approval. The wavier request should analyze the benefits and burdens of a shared system, detail any attempts at negotiation, describe plans for the addition of other generic applicants to the REMS program, analyze the differences between proposed separate program and the RLD REMS, and relate any attempts by the ANDA applicant to obtain a license to a protected REMS.
In these guidance documents, FDA suggests starting talks very early in the review cycle for the ANDA. FDA recommends the submission of the proposed REMS, shared or separate, by the midpoint of the pending ANDA application review cycle. This may raise some complications, as FDA does not direct ANDA applicants to contact the RLD holders to start negotiations of a shared system until the ANDA has been received for review, which can take up to two months. This leaves three months for potential market competitors to come to an agreement – a very optimistic timeline to say the least.
FDA’s intent with these guidance documents is to make the process for developing a shared system more efficient. It will be interesting to see if these guidance documents enhance shared system negotiations.