FDA to Again Try to Regulate LDTs: Attorneys

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Four Sidley Austin attorneys say FDA expects to issue in August a notice of proposed rulemaking to amend agency regulations to make explicit that laboratory-developed tests (LDTs) are medical devices under the Federal Food, Drug, and Cosmetic Act. In an online post, the attorneys say the agency decided to act after Congress was unable to approve the VALID (Verifying Leading-Edge IVCT Development) Act to clarify FDA authority.

The post says that in the past the agency has faced challenges to its attempts to regulate LDTs through guidance. “Enduring questions remain about how FDA intends to regulate LDTs under the existing device statutory framework,” they say.

The attorneys also describe a voluntary FDA pilot program for certain oncology drugs that are used with in vitro diagnostic tests to assist clinicians in selecting appropriate cancer treatments for patients. They say that companies choosing to participate in the pilot may have an opportunity to more directly shape the agency’s oversight of these types of diagnostic tests and to help set the relevant performance characteristics for similar tests.

“Laboratories and companies that develop and market LDTs should take note that FDA is prioritizing oversight over LDTs, especially LDTs that it considers to be higher risk,” the authors conclude. “Companies should track these developments closely and consider their existing and developing validation and verification data. The status of FDA’s regulation of LDTs has been opaque in recent years, and FDA’s new approach is likely to be met with pushback in light of enduring questions about whether FDA’s authorities extend to LDTs.”

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