New Guide on Drug 3-Year Exclusivity

FDA has posted a new draft guidance entitled “New Clinical Investigation Exclusivity (3-Year Exclusivity) for Drug Products: Questions and Answers.” The document is intended to assist applicants requesting new clinical investigation exclusivity (“3-year exclusivity”) for a new drug application (NDA) or NDA supplement and provides other information about 3-year exclusivity. The guidance:

  • discusses the statutory and regulatory criteria for eligibility for 3-year exclusivity and
  • clarifies the processes for:
    • applicants to request 3-year exclusivity,
    • FDA to make 3-year exclusivity eligibility determinations, and
    • FDA providing notice of those determinations in Approved Drug Products with Therapeutic Equivalence Evaluations (the “Orange Book”).

FDA intends to update the document to include additional answers to commonly asked questions, as appropriate.

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