Bayer Reiterates Position on Apotex ANDA

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A Bayer citizen petition reiterates the company’s request that FDA confirm that it will stay final approval of an Apotex ANDA for over-the-counter azelastine HCl nasal spray 205.5mcg/spray that cites Bayer’s Astepro Allergy as the reference-listed drug. The 9/29 petition says it is substantively the same as a 4/5 petition that FDA denied 9/2 on non-substantive grounds and without comment on whether it would take the action requested.

Bayer says it is submitting the second petition “to ensure that FDA carefully considers these important issues” before approving the Apotex ANDA.

The petition says the agency should apply a 30-month stay of approval of the ANDA because all three of the statutory prerequisites for a stay have been met. The three prerequisites are, it says:

  • Apotex made a Paragraph 4 certification to each of three Bayer patents listed in the Orange Book in connection with the Bayer NDA;
  • Bayer and a co-plaintiff initiated timely litigation alleging Apotex’s infringement of the three patents; and
  • Bayer submitted to FDA the required information for the patents before Apotex submitted its original ANDA.

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