Is FDA Lengthening Warning Letter Response Time?

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Warning Letters sent recently by FDA to two medical device companies instructed the firms to respond within 30 days, rather than the typical 15 days. Three Hyman, Phelps & McNamara attorneys write in their firm’s FDA Law Blog that their review of some 200 Warning Letters issued by CDRH over the past five years indicated that only these two were given more than 15 days in which to respond.

They note that the 15-day response period is not a strict regulatory requirement and thus the agency is not acting contrary to its own procedures, although it is deviating from its standard practice.

What’s not known, they say, is whether these two instances were a mistake or signal a change in practice. “On the one hand,” they write, “the Regulatory Procedures Manual details a rigorous and structured process for Warning Letter submission and review. On the other hand, like many government agencies, FDA has faced significant operational upheaval since January, including reductions in force (RIF) and shifting internal expectations. Many senior leaders and support staff in FDA’s inspection programs have departed over the past year, either by choice or as part of a RIF, with whispers (or shouts) of a draining morale.”

The attorneys also point out that FDA recently announced plans to merge all of its medical product and clinical research inspectorates, transitioning inspectors from specialized roles to generalized “medical product” inspections, and reversing a 2017 “program alignment” initiative that had ensured inspectors were experts in specific commodities.

The post concludes that the writers will continue to track response time variations and for now, do not expect to see widespread use of the 30-day Warning Letter response time.

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