In the midst of a global pandemic, a Presidential election and a Supreme Court vacancy the FDA has issues its “Safe Importation Action Plan.”
Per the FDA press release:
The final rule implements a provision of federal law that allows FDA-authorized programs to import certain prescription drugs from Canada under specific conditions that ensure the importation poses no additional risk to the public’s health and safety while achieving a significant reduction in the cost of covered products to the American consumer.
The FDA spells out two pathways.
Under Pathway 1, a Notice of Proposed Rulemaking (“NPRM”) would rely on the authority in the Federal Food, Drug, and Cosmetic Act (“FD&C Act”) section 804 to authorize demonstration projects to allow importation of drugs from Canada. The NPRM would include conditions to ensure the importation poses no additional risk to the public’s health and safety and that it will achieve significant cost savings to the American consumer.
Under Pathway 2, manufacturers could import versions of FDA-approved drug products that they sell in foreign countries that are the same as the U.S. versions. Under this pathway, manufacturers would use a new National Drug Code (NDC) for those products, potentially allowing them to offer a lower price than what their current distribution contracts require.
Assuming that Pathway 2 is a non-starter, let’s have a look at some key codicils of Pathway 1:
Non-Eligible Drugs: The NPRM would restate the exclusions listed in section 804(a)(3); namely, controlled substances, biological products, infused drugs, intravenously injected drugs, drugs inhaled during surgery, and certain parenteral drugs would be excluded from this pathway. The NPRM would additionally exclude any drug with a REMS.
The NPRM will help address this issue by requiring applicants to demonstrate how they will. comply with: track and trace requirements to allow drug tracing from manufacture to pharmacy; certain labeling requirements to ensure the imported drugs meet all labeling requirements of the FD&C Act; requirements to ensure foreign sellers engaged in the distribution of the imported drugs are registered; importation entry requirements (e.g., providing certain electronic information demonstrating that each shipment should be allowed into the U.S.); and post-importation requirements such as adverse event reporting, procedures to facilitate recalls, and cGMP for certain manufacturing activities such as relabeling.
Cost Requirements: The NPRM would explain the requirement for demonstrating that drugs imported under this pathway must result in a significant reduction in the cost of covered drug products to the American consumer. As such, the NPRM would seek feedback on the best way to identify the expected acquisition cost of the imported drug, the cost of assuring the drug is safely imported, and the mechanism for delivering those savings to the consumer (as opposed to the savings being absorbed by the supply chain).
Transparency: The NPRM would require some indication in the labeling that drugs imported under this program were originally intended for distribution in Canada. In particular, the NPRM would seek comment on requiring that the label include the NDC, part of which would be unique to drugs imported under this program.
One item of importance not addressed in the agency’s plan is whether or not the Canadian government will change its position and allow American importation programs. That’s more than a minor detail. Canadian officials have already stated that “Canada does not support actions that could adversely affect the supply of prescription drugs in Canada and potentially raise costs of prescription drugs for Canadians.”
If Ottawa maintains its no-go policy, it’s an importation poison pill.