Do More to Promote Generic Competition: White Paper
A Brookings Institution white paper says there are steps FDA could take to better promote generic competition. The paper focuses on three areas of FDA authority that Brookings says “could be refined to better promote generic competition: the Citizen Petition mechanism, the approval of so-called complex generic drugs, and the phenomenon known as ‘parking’ under the Waxman-Hatch Act.” Policy recommendations are:
- strengthen FDA authority to dismiss citizen petitions and penalize non-meritorious filers by instituting time limits and associated penalties;
- improve the transparency of FDA’s review of citizen petitions by requiring the agency to report more details about delays and the review process;
- for drug/device combinations, relax the sameness standard from substantial equivalence to functional equivalence, even if that necessitates some modest training by healthcare providers;
- streamline the review of ingredient sameness for injectable complex generics;
- establish a defined period for review of citizen petitions requesting therapeutic equivalence under the 505(b)(2) pathway;
- amend 180-day exclusivity provisions to specify a presumption that any patent litigation between generic and innovator firms that does not allow for immediate generic entry be viewed as grounds for forfeiture of the 180-day exclusivity period; and
- create additional financial incentives to encourage at-risk launching by the first generic filer.
The paper says the policy recommendations “are by and large modest and are grounded in the assessment of existing practices and the barriers to competition they create. The types of policy changes proposed here would be expected to yield significant cost savings from enhanced competition