Assess Full Cost of Software Pre-certification: Attorney
Attorney Bradley Thompson (Epstein, Becker & Green) says he is hearing industry enthusiasm for FDA’s new software precertification program but not enough discussion about the program’s heavy cost to industry. “FDA wants more power. A lot more,” he writes. “And I for one am worried.”
Thompson says the agency is proposing an expedited path to market and even for some low-risk software products an exemption from premarket review in exchange for expanding FDA authority in five ways:
- enlarging the scope of software subject to FDA regulation;
- deeper and more clinically demanding premarket reviews;
- more intrusive access to company records;
- access to real-world evidence; and
- greater power to order postmarket corrective actions.
“In the vast majority of daily interactions with FDA, the agency treats industry fairly,” Thompson says. “But not always.” He notes that in a couple of places in its precertification proposal, FDA says that its plan is to develop the program without worrying about legal authority, whether regulatory or statutory. “Presumably FDA wants to come up with the best possible program and then present it to Congress and ask for authorizing legislation,” he says. “I’m not at this juncture saying that any of FDA’s requested authority to increase its power is necessarily wrong…. But I am saying that industry has to review the proposal with eyes wide open with regard to the downstream consequences. And frankly the time to start thinking about and talking about these issues is now.”