You Down With CGT?

Yeah, you know me. Given Commissioner Gottlieb’s clear proclivity for blog posts with song titles rather than Orange Book puns, we’ll stick with those for a while. We just hope the Commissioner likes early 1990s rap as much as he likes rock from the 1970s and 1980s.

But now, on to our regularly scheduled blog post. In another one of the many steps FDA has taken in the recent past to address drug pricing and enhance generic competition, FDA published a new guidance on Competitive Generic Therapy (CGT) last week. Once again, today’s guidance is part of the Commissioner’s Drug Competition Action Plan, designed to facilitate competition in the drug industry in an effort to address and control escalating drug prices. FDA has already released guidance documents, MAPPs, lists, and ICH proposals addressing generic competition, demonstrating the Agency’s significant attention, thought, and commitment to expediting generic competition. This guidance is another piece to that, explaining the procedural steps that generic manufacturers must undertake to take advantage of the statutorily-enacted CGT designation and related exclusivity.

CGT was signed into law as part of the Food and Drug Administration Reauthorization Act in August 2017. Section 803 of FDARA added section 506H to the FDC Act, which established an expedited development and approval pathway for generic versions of drugs for which there is inadequate generic competition, defined as a drug for which there is not more than one approved drug in the active section of the Orange Book (this “not more than one” can refer to either the RLD or to an ANDA referencing the RLD). Expedited development may include product development meetings, pre-submission meetings, mid-review cycle meetings, coordinated and cross-disciplinary review, and expedited review. FDA will strive to act on the ANDA prior to the GDUFA goal date, but does not guarantee it, and the guidance suggests that, in addition to CGT designation, eligible applicants may separately qualify for priority review under MAPP 5240.3.

Along with expedited review, CGT comes with a period of 180-day exclusivity for the first approved ANDA applicant with a CGT designation referencing an RLD with no unexpired patents or exclusivities listed in the Orange Book at the time of ANDA submission. As the guidance points out, not all drugs designated CGT will be eligible for CGT exclusivity. Drugs may be designated as CGT because the RLD has inadequate generic competition (not more than one approved drug in the active section of the Orange Book), but not eligible for CGT exclusivity if a patent or exclusivity is listed in the Orange Book at the time of ANDA submission. Further, the CGT-designated application must be approved on the first day on which any application for such CGT is approved to receive the eligibility.

There can be multiple first approved applicants for the same CGT, and CGT exclusivity may still be available even if an ANDA is already approved at the time of the first approved applicant’s approval provided that the first ANDA approved did not have CGT designation. Indeed, the first CGT-designated drug to receive approval with CGT exclusivity faced this exact situation. Further, CGT exclusivity is not available if the first approved applicant is or has been otherwise eligible for 180-day exclusivity under 505(k) of the FDC Act (paragraph IV exclusivity) and the ANDA cannot be a drug for which other ANDA applicants were eligible for but forfeited paragraph IV exclusivity.

Importantly, CGT exclusivity is triggered by the first commercial marketing (and notice to FDA of such marketing) of any first approved applicant. However, FDA is not blocked from approving subsequent ANDAs for the same RLD until this exclusivity is triggered. This means that if there is a delay in the first commercial marketing of a first approved applicant, other applicants can be approved and can start marketing prior to the CGT-exclusivity trigger. We have already seen this happen, and FDA emphasizes this point in this CGT guidance. The guidance also notes that CGT exclusivity may be selectively waived, may be relinquished, or may be forfeited for failure to market within 75 days of approval (starting the day after approval).

FDARA was passed in August 2017, so the CGT program has been in effect since then. But since this guidance is the first direction FDA has really given to generic manufacturers, practitioners have kind of been winging it with requests thus far. Indeed, the Agency has already fielded many requests over the last 1.5 years. Indeed, many requests have been denied because they were submitted after the submission of an ANDA. As FDA emphasizes in the guidance, the law requires a CGT request to be made prioror at the time of the submission of an ANDA. FDA will categorically deny a Request for Designation if it’s submitted after the submission of the original ANDA – even if the ANDA was submitted prior to the availability of CGT designations.

Procedurally, the guidance provides that Requests for Designations submitted prior to the submission of an ANDA should be in writing and may be submitted as either a stand-alone request or as an accompaniment to the pre-submission facility correspondence through the Electronic Submission Gateway. Alternatively, Request for Designation may be made in the cover letter to an ANDA submission in Module 1 of the Common Technical Document. The Request should include the pre-assigned ANDA number and a statement supporting the Request for Designation, including identification of the RLD and the strengths for which CGT designation is sought. Information supporting the applicant’s assertion of inadequate generic competition must also be included.