Senate Approves FDA ‘Active Moiety’ Definition

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Attorney Andrew Goldfarb (Zuckerman Spaeder) says the Senate approved 3/11 S. 415, a bill that would amend the Federal Food, Drug, and Cosmetic Act to replace the phrase “active ingredient (including any ester or salt of the active ingredient)” with FDA’s regulatory definition of “active moiety.” Goldfarb writes in an online post that the bill is intended to reduce drug costs by ensuring that exclusivity is awarded only for innovation that represents a true therapeutic advance for patients. “The unanimous passage by the Senate suggests the bill has a strong chance to become law,” he writes.

The bill would clarify a long-running, hotly-litigated Waxman-Hatch question about when a new drug qualifies for exclusive marketing rights intended to reward innovation, Goldfarb says. FDA has said that Congress did not intend to award new active ingredient exclusivity for a very slight change to the chemical structure of an active ingredient that has no therapeutic significance and thus issued regulations saying that five-year exclusivity is available only when a drug contains a new chemical entity, defined as a drug that contains no active moiety that has been approved by FDA in another application.

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