How FDA Calls Some Old Drugs ‘New’
Three Pepper Hamilton attorneys say that an FDA 5/31 decision awarding Amarin Pharma five years of new chemical entity (NCE) exclusivity for its Vascepa overturned the agency’s previous rejection of NCE exclusivity due to a DC federal court ruling that vacated and remanded the FDA administrative decision. “The Amarin case highlights the complexity of determining whether certain drugs that contain a previously FDA-approved active ingredient will be considered a new chemical entity,” the attorneys write.
They cite three relatively recent examples of the agency being asked to modify its NCE policy (1) where the previously approved active moiety is combined with a new chemical entity in a fixed-dose combination; (2) where the subject active moiety is part of a previously-approved multi-component drug mixture; and (3) when the same active moieties have been previously approved, but in a different ratio.
“On the flip side,” the attorneys say, “FDA appears to be taking a stricter view of the core pharmacophore of an active ingredient by stating that esters (whether stable or labile) of a previously approved active moiety are not eligible for NCE status.”
They conclude that given the recent evolution in agency thinking, companies should review court and FDA decisions to devise a strategy to try to obtain NCE exclusivity.