Appeals Court Rules for FDA in Generic Fusilev Approval
The DC Circuit Court of Appeals has upheld a lower court ruling that found FDA was correct in approving a Sandoz ANDA for a generic copy of Spectrum Pharmaceuticals’ Fusilev (levoleucovorin) despite orphan drug exclusivity on a use for which Sandoz had not sought approval. Pursuant to FDA regulations, Sandoz’s label contains only methotrexate indications and makes no mention of the orphan-protected colorectal cancer indication. Spectrum had argued that because Sandoz markets its generic in vials that best suit dosing used for the colorectal cancer indication, FDA should not have approved the product because it will clearly be used for the protected indication.
FDA dismissed the claims about how the dosing vials were being marketed and argued that it only needed to examine the use indicated in Sandoz’s ANDA to make certain the generic drug “will not trench on the prior grant of exclusivity to Spectrum.” The appeals court agreed with the agency and found its interpretation of the Orphan Drug Act reasonable. “We ... conclude that during the approval process, the agency can look solely to Sandoz’s labeling claims to determine the intended use of its drug,” the judges wrote. “FDA’s approach here is consistent with how the agency has interpreted ‘intended use’ outside of the ANDA approval context to mean ‘the objective intent of the persons legally responsible for the labeling of drugs.’”