FDA Appeals Court Prepopik Ruling
FDA has appealed to the DC Circuit Court of Appeals a district court ruling remanding to the agency for further consideration a case brought by Ferring seeking five years of exclusivity for its Prepopik (magnesium oxide, anhydrous citric acid, and sodium picosulfate) fixed-dose combination drug, based on the fact that one of the drug’s three ingredients (sodium picosulfate) is a new chemical entity (NCE). Prepopik is a colon cleanse used before a colonoscopy.
FDA approved the drug 7/16/12 and awarded it a three-year period of exclusivity. The company filed a citizen petition asking for a five-year exclusivity based on the inclusion of a new chemical entity in the fixed-dose combination. FDA indicated that it was changing its approach to NCE exclusivity in combination drugs, but would only do so prospectively. Ferring filed suit, alleging that the agency’s decision violated the Administrative Procedures Act by being arbitrary and capricious.
The district court determined that it should have granted Ferring summary judgment in its case after the company presented information that led the court to agree that FDA’s actions were arbitrary and capricious. Although the court remanded the case to FDA for further action consistent with its opinion, the agency chose to ask the appeals court to weigh in.