Indefinite Delay for ‘Intended Use’ Rule

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FDA says it is delaying indefinitely the effective date of amendments to the existing medical product “intended use” regulations to give the agency more time to consider comments on the proposal. A Federal Register notice scheduled to be published 3/16 says the action does not delay the effective date of the portions of the 1/9/17 final rule that describe the circumstances in which a product made or derived from tobacco that is intended for human consumption will be subject to regulation as a drug, medical device, or combination product.

The portion of the final rule that is being delayed enunciated revised criteria using “totality of the evidence” to determine a product’s use. That change drew significant stakeholder comment. The notice says that many of the comments opposed what they described as a broadening from the 9/25/15 proposed rule of the types of evidence that could be considered in determining intended use, and specifically raised concerns with the “totality of the evidence” language included in the final rule.

“The wide-ranging proposals and recommendations for how FDA should address issues related to intended use … underscore the complexities of the issues involved,” FDA says in the notice. “We believe these comments provide additional support for the delay of the effective date of amendments to the existing medical product ‘intended use’ regulations. The agency needs more time to consider the feedback we received, make sure that our approach is guided by our public health mandate, and ensure the clarity of our rules on the subject.”

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