Virtus Pharma Sues FDA Over Unapproved Drugs Guidance

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Virtus Pharmaceuticals has filed suit against FDA in middle Florida federal court seeking an order barring enforcement action against the company’s unapproved and allegedly grandfathered potassium chloride drug products. According to the company, after being marketed without an approved NDA for decades, two of Virtus’s competitors gained approval for their potassium chloride products. In June, FDA told Virtus to stop distributing the unapproved products.

In its complaint, Virtus claims that FDA’s guidance on Unapproved Drug Products is arbitrary and capricious. It is “particularly arbitrary in its grant of effective market exclusivity for a company that obtains NDA approval for a product like (potassium chloride) that other companies have been marketing without approval for many decades.” The company also argues that the guidance has the force of law by seeking to “impose substantive rights and limitations on the regulated public without subjecting its attempt to make law to the notice-and-comment limitation inherent” under the Administrative Procedures Act.

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