82_FR_57405 82 FR 57174 - Obstetrical and Gynecological Devices; Reclassification of Single-Use Female Condom, To Be Renamed Single-Use Internal Condom

82 FR 57174 - Obstetrical and Gynecological Devices; Reclassification of Single-Use Female Condom, To Be Renamed Single-Use Internal Condom

DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration

Federal Register Volume 82, Issue 231 (December 4, 2017)

Page Range57174-57180
FR Document2017-26011

The Food and Drug Administration (FDA) is proposing to reclassify single-use female condoms, renaming the device to ``single- use internal condom,'' a postamendments class III device (product code MBU), into class II (special controls) subject to premarket notification (510(k)). FDA is also identifying the proposed special controls that the Agency believes are necessary to provide a reasonable assurance of safety and effectiveness of the device. FDA is proposing this reclassification on its own initiative based on new information. FDA is also proposing to amend the existing device identification for ``female condom,'' a preamendments class III device (product code OBY), by renaming the device ``multiple- use female condom,'' to distinguish it from the ``single-use internal condom.'' If finalized, this order will reclassify single-use female condoms from class III to class II and reduce regulatory burdens on industry as these types of devices will no longer be required to submit a premarket approval application (PMA) but can instead submit a less burdensome 510(k) before marketing their device.

Federal Register, Volume 82 Issue 231 (Monday, December 4, 2017)
[Federal Register Volume 82, Number 231 (Monday, December 4, 2017)]
[Proposed Rules]
[Pages 57174-57180]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-26011]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

21 CFR Part 884

[Docket No. FDA-2017-N-6538]


Obstetrical and Gynecological Devices; Reclassification of 
Single-Use Female Condom, To Be Renamed Single-Use Internal Condom

AGENCY: Food and Drug Administration, HHS.

ACTION: Proposed order.

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SUMMARY: The Food and Drug Administration (FDA) is proposing to 
reclassify single-use female condoms, renaming the device to ``single-
use internal condom,'' a postamendments class III device (product code 
MBU), into class II (special controls) subject to premarket 
notification (510(k)). FDA is also identifying the proposed special 
controls that the Agency believes are

[[Page 57175]]

necessary to provide a reasonable assurance of safety and effectiveness 
of the device. FDA is proposing this reclassification on its own 
initiative based on new information. FDA is also proposing to amend the 
existing device identification for ``female condom,'' a preamendments 
class III device (product code OBY), by renaming the device ``multiple-
use female condom,'' to distinguish it from the ``single-use internal 
condom.'' If finalized, this order will reclassify single-use female 
condoms from class III to class II and reduce regulatory burdens on 
industry as these types of devices will no longer be required to submit 
a premarket approval application (PMA) but can instead submit a less 
burdensome 510(k) before marketing their device.

DATES: Submit either electronic or written comments on the proposed 
order by February 2, 2018. Please see section IX of this document for 
the proposed effective date of any final order that may publish based 
on this proposed order.

ADDRESSES: You may submit comments as follows. Please note that late, 
untimely filed comments will not be considered. Electronic comments 
must be submitted on or before February 2, 2018. The https://www.regulations.gov electronic filing system will accept comments until 
midnight Eastern Time at the end of February 2, 2018. Comments received 
by mail/hand delivery/courier (for written/paper submissions) will be 
considered timely if they are postmarked or the delivery service 
acceptance receipt is on or before that date.

Electronic Submissions

    Submit electronic comments in the following way:
     Federal Rulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments. Comments submitted 
electronically, including attachments, to https://www.regulations.gov 
will be posted to the docket unchanged. Because your comment will be 
made public, you are solely responsible for ensuring that your comment 
does not include any confidential information that you or a third party 
may not wish to be posted, such as medical information, your or anyone 
else's Social Security number, or confidential business information, 
such as a manufacturing process. Please note that if you include your 
name, contact information, or other information that identifies you in 
the body of your comments, that information will be posted on https://www.regulations.gov.
     If you want to submit a comment with confidential 
information that you do not wish to be made available to the public, 
submit the comment as a written/paper submission and in the manner 
detailed (see ``Written/Paper Submissions'' and ``Instructions'').

Written/Paper Submissions

    Submit written/paper submissions as follows:
     Mail/Hand delivery/Courier (for paper submissions): 
Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 
Fishers Lane, Rm. 1061, Rockville, MD 20852.
     For written/paper comments submitted to Dockets Management 
Staff, FDA will post your comment, as well as any attachments, except 
for information submitted, marked and identified, as confidential, if 
submitted as detailed in ``Instructions.''
    Instructions: All submissions received must include the Docket No. 
FDA-2017-N-6538 for ``Obstetrical and Gynecological Devices; 
Reclassification of Single-Use Female Condom, To Be Renamed Single-Use 
Internal Condom.'' Received comments, those filed in a timely manner 
(see ADDRESSES), will be placed in the docket and, except for those 
submitted as ``Confidential Submissions,'' publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m. 
and 4 p.m., Monday through Friday.
     Confidential Submissions--To submit a comment with 
confidential information that you do not wish to be made publicly 
available, submit your comments only as a written/paper submission. You 
should submit two copies total. One copy will include the information 
you claim to be confidential with a heading or cover note that states 
``THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.'' The Agency will 
review this copy, including the claimed confidential information, in 
its consideration of comments. The second copy, which will have the 
claimed confidential information redacted/blacked out, will be 
available for public viewing and posted on https://www.regulations.gov. 
Submit both copies to the Dockets Management Staff. If you do not wish 
your name and contact information to be made publicly available, you 
can provide this information on the cover sheet and not in the body of 
your comments and you must identify this information as 
``confidential.'' Any information marked as ``confidential'' will not 
be disclosed except in accordance with 21 CFR 10.20 and other 
applicable disclosure law. For more information about FDA's posting of 
comments to public dockets, see 80 FR 56469, September 18, 2015, or 
access the information at: https://www.thefederalregister.org/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.
    Docket: For access to the docket to read background documents or 
the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in 
the heading of this document, into the ``Search'' box and follow the 
prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane, 
Rm. 1061, Rockville, MD 20852.

FOR FURTHER INFORMATION CONTACT: Monica Garcia, Center for Devices and 
Radiological Health, Food and Drug Administration, 10903 New Hampshire 
Ave., Bldg. 66, Rm. G215, Silver Spring, MD 20993, 240-402-2791, 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background--Regulatory Authorities

    The Federal Food, Drug, and Cosmetic Act (the FD&C Act), as 
amended, establishes a comprehensive system for the regulation of 
medical devices intended for human use. Section 513 of the FD&C Act (21 
U.S.C. 360c) established three categories (classes) of devices, 
reflecting the regulatory controls needed to provide reasonable 
assurance of their safety and effectiveness. The three categories of 
devices are class I (general controls), class II (special controls), 
and class III (premarket approval).
    Under section 513(d) of the FD&C Act, devices that were in 
commercial distribution before the enactment of the 1976 amendments, 
May 28, 1976 (generally referred to as ``preamendments devices''), are 
classified after FDA has: (1) Received a recommendation from a device 
classification panel (an FDA advisory committee) (the Panel); (2) 
published the Panel's recommendation for comment, along with a proposed 
regulation classifying the device; and (3) published a final regulation 
classifying the device. FDA has classified most preamendments devices 
under these procedures.
    Devices that were not in commercial distribution prior to May 28, 
1976 (generally referred to as ``postamendments devices'') are 
automatically classified by section 513(f)(1) of the FD&C Act into 
class III without any FDA rulemaking process. Those devices remain in 
class III and require premarket approval unless, and until, the device 
is reclassified into class I or II, or FDA issues an order finding

[[Page 57176]]

the device to be substantially equivalent, in accordance with section 
513(i) of the FD&C Act, to a predicate device that does not require 
premarket approval. The Agency determines whether new devices are 
substantially equivalent to predicate devices by means of premarket 
notification procedures in section 510(k) of the FD&C Act (21 U.S.C. 
360(k)) and part 807 (21 CFR part 807).
    A postamendments device that has been initially classified in class 
III under section 513(f)(1) of the FD&C Act may be reclassified into 
class I or class II under section 513(f)(3) of the FD&C Act. On July 9, 
2012, Food and Drug Administration Safety and Innovation Act (FDASIA) 
(Pub. L. 112-144) was enacted. Section 608(a) of FDASIA amended section 
513(e) of the FD&C Act, changing the process for reclassifying a device 
from rulemaking to an administrative order. Section 513(e) provides 
that FDA may, by administrative order, reclassify a device based upon 
``new information.'' The term ``new information,'' as used in section 
513(e) of the FD&C Act, includes information developed as a result of a 
reevaluation of the data before the Agency when the device was 
originally classified, as well as information not presented, not 
available, or not developed at the time. To change the classification 
of the device, the proposed new class must have sufficient regulatory 
controls to provide reasonable assurance of the safety and 
effectiveness of the device for its intended use.
    Reevaluation of the data previously before the Agency is an 
appropriate basis for subsequent action where the reevaluation is made 
in light of newly available regulatory authority (see Bell v. Goddard, 
366 F.2d 177, 181 (7th Cir. 1966); Ethicon, Inc. v. FDA, 762 F. Supp. 
382, 388-391 (D.D.C. 1991)), or in light of changes in ``medical 
science'' (Upjohn Co. v. Finch, 422 F.2d 944, 951 (6th Cir. 1970)). 
Whether data before the Agency are old or new, the ``new information'' 
to support reclassification under section 513(f)(3) must be ``valid 
scientific evidence'', as defined in section 513(a)(3) of the FD&C Act 
and 21 CFR 860.7(c)(2). (See, e.g., General Medical Co. v. FDA, 770 
F.2d 214 (D.C. Cir. 1985); Contact Lens Mfrs. Assoc. v. FDA, 766 F.2d 
592 (D.C. Cir.1985), cert. denied, 474 U.S. 1062 (1986)).
    FDA relies upon ``valid scientific evidence'' in the classification 
process to determine the level of regulation for devices. To be 
considered in the reclassification process, the ``valid scientific 
evidence'' upon which the Agency relies must be publicly available. 
Publicly available information excludes trade secret and/or 
confidential commercial information, e.g., the contents of a pending 
PMA (see section 520(c) of the FD&C Act (21 U.S.C. 360j(c)). Section 
520(h)(4) of the FD&C Act provides that FDA may use, for 
reclassification of a device, certain information in a PMA 6 years 
after the application has been approved. This includes information from 
clinical and preclinical tests or studies that demonstrate the safety 
or effectiveness of the device, but does not include descriptions of 
methods of manufacture or product composition and other trade secrets.
    Section 510(m) of the FD&C Act provides that a class II device may 
be exempted from the premarket notification requirements, if the Agency 
determines that premarket notification is not necessary to reasonably 
assure the safety and effectiveness of the device.

II. Device Description and Regulatory History

    A single-use female condom is a sheath-like device that is inserted 
into the vagina prior to the initiation of coitus and discarded at its 
conclusion. It includes a mechanism (e.g., flexible rings) to hold the 
device in place during sexual intercourse. The device is a mechanical 
barrier that is intended to protect the user from sexually transmitted 
infections (STIs) and prevent pregnancy. The female condom is distinct 
from the male condom, which is a sheath that completely covers the 
penis, because it is inserted internally prior to intercourse. Based on 
the differences in technology, these devices have different failure 
modes and therefore have distinct classifications. Male condoms that 
completely cover the penis with a closely fitting membrane are 
regulated as class II devices under Sec. Sec.  884.5300 and 884.5310 
(21 CFR 884.5300 and 884.5310). A single-use female condom (product 
code MBU) is a postamendments device currently regulated as a class III 
device under section 513(f)(1) of the FD&C Act. FDA first learned of 
the device in January 1989, when FDA received a 510(k) from the 
Wisconsin Pharmacal Company, LLC (WPC). The device was intended to line 
the vaginal wall during sexual intercourse for purposes of 
contraception and STI prophylaxis. At that time, the device was named 
the WPC-333 device but later renamed the Femshield/Reality Female 
Condom. WPC purported in its 510(k) that the Reality Female Condom was 
substantially equivalent to the male condom identified in Sec.  
884.5300, as well as to a preamendments female condom known as the Gee 
Bee Ring. WPC provided documentation in the 510(k) that indicated the 
Gee Bee Ring was a pouch-like device designed to line the wall of the 
vagina during coitus for contraceptive (pregnancy prevention) and 
prophylactic (prevention of STI transmission) purposes. However, in 
contrast to the Reality Female Condom, the Gee Bee Ring was indicated 
for reuse (versus single-use) and was made using animal tissue (versus 
polyurethane).
    Before receiving WPC's 510(k), FDA was unaware of the existence, 
commercial distribution, and use of the Gee Bee Ring as a female 
condom. FDA verified the preamendments status and uses of the Gee Bee 
Ring, and presented this information to the Obstetrics and Gynecology 
Devices Panel (referred to as the Classification Panel) on March 7, 
1989. The Classification Panel reviewed all available information 
concerning the classification of a sheath-like device that is inserted 
into the vagina prior to coitus for purposes of contraception and STI 
prophylaxis. The Classification Panel recommended that FDA classify 
this generic type of device as distinct from the male condom identified 
in Sec.  884.5300. The Classification Panel also recommended that this 
device be classified into class III, because no published laboratory or 
clinical study data could be found that would allow FDA to establish 
special controls for the device, and the device is purported or 
represented to be for a use which is of substantial importance in 
preventing impairment of human health. FDA agreed with the 
Classification Panel's recommended classification, and in the Federal 
Register of June 10, 1999 (64 FR 31164), FDA published a proposed rule 
to create a new classification regulation (Sec.  884.5330 (21 CFR 
884.5330)) for the female condom and classify the device in class III. 
FDA finalized this rule on May 18, 2000 (65 FR 31454). The Gee Bee Ring 
is the only female condom regulated under Sec.  884.5330 and is 
identified using FDA product code OBY. In the Federal Register of 
August 25, 2010 (75 FR 52294), FDA published a proposed rule to require 
the filing, under section 515(b) of the FD&C Act (21 U.S.C. 360e(b)), 
of a PMA or notice of completion of a product development protocol for 
any female condom that was in commercial distribution before May 28, 
1976. FDA finalized this rule on August 16, 2011 (76 FR 50663) and 
noted that the Agency has no record of the Gee Bee Ring being marketed 
after it was classified in 2000.
    In April 1989, FDA completed its review of WPC's 510(k) and 
determined that the Reality Female Condom was not

[[Page 57177]]

substantially equivalent to either the male condom identified in Sec.  
884.5300 or the Gee Bee Ring. As a result, in accordance with section 
513(f)(1) of the FD&C Act, the Reality Female Condom was automatically 
classified into class III. On May 7, 1993, FDA approved the PMA for the 
Reality Female Condom (P910064) and subsequently FDA identified this 
device type with the product code MBU (Ref. 1). On April 14, 1995, FDA 
approved the PMA for the Femidom Female Condom (P940033), which is 
identical to the Reality Female Condom. In this PMA, WPC authorized 
Chartex International plc to incorporate information contained in its 
approved PMA for the Reality Female Condom (Ref. 2). On January 8, 
2008, FDA received a PMA (P080002) from the Female Health Company for 
the FC2 Female Condom and approved it on March 10, 2009 (Ref. 3). The 
FC2 Female Condom is a modified version of the Reality Female Condom. 
Since the introduction of the FC2 Female Condom, the Reality Female 
Condom has been referred to as the FC1 Female Condom. The FC2 Female 
Condom is a specific example of a single-use female condom that is the 
subject of this reclassification and is currently the only FDA-approved 
single-use female condom that is being marketed in the United States.
    As part of the Center for Devices and Radiological Health's 2014-
2015 strategic priority ``Strike the Right Balance Between Premarket 
and Postmarket Data Collection,'' a retrospective review of class III 
devices subject to PMA was completed to determine whether or not, based 
on our current understanding of the technology, reclassification may be 
appropriate. On April 29, 2015, FDA published a notice in the Federal 
Register entitled ``Retrospective Review of Premarket Approval 
Application Devices; Striking the Balance Between Premarket and 
Postmarket Data Collection'' in which FDA announced plans to consider 
reclassifying single-use female condoms identified with the MBU product 
code from class III to class II (80 FR 23798). Following this notice, 
FDA received seven comments, six of which supported reclassification of 
MBU. One comment did not support reclassification because it was stated 
that FDA lacked information to determine what risks might exist for 
female condoms of different design, materials, and manufacturing 
processes. FDA considered all comments in proceeding with this proposed 
order to reclassify single-use female condoms from class III to class 
II.

III. Proposed Reclassification and Summary of Reasons for 
Reclassification

    FDA is proposing to reclassify single-use female condoms from class 
III into class II because sufficient information exists to establish 
special controls. FDA believes that these special controls, together 
with general controls, will provide a reasonable assurance of the 
device's safety and effectiveness for single-use female condoms.
    In accordance with section 513(f)(3) of the FD&C Act and 21 CFR 
part 860, subpart C, FDA is proposing to reclassify this postamendments 
class III device into class II (special controls). FDA believes that 
there is sufficient information from nonclinical and clinical data 
submitted in PMA applications P910064 (Ref. 1), P940033 (Ref. 2), and 
P080002 (Ref. 3), available to FDA under section 520(h)(4) of the FD&C 
Act; postmarket experience; and peer-reviewed literature (Refs. 4-7) to 
establish special controls that can effectively mitigate the risks to 
health of single-use female condoms that are identified in section IV. 
Absent the special controls identified in this proposed order, general 
controls applicable to the device are insufficient to provide 
reasonable assurance of the safety and effectiveness of the device.
    FDA is also proposing to amend the existing device identification 
for female condom (Sec.  884.5330), a preamendments class III device, 
by renaming the device ``multiple-use female condom'' to better 
distinguish it from the ``single-use female condom'' that is the 
subject of this reclassification. One difference between the 
preamendments female condom (product code OBY) and the postamendments 
female condom (product code MBU) is that the preamendments female 
condom is indicated to be cleaned at the conclusion of coitus and 
reused. Additionally, a minor revision to the identification language 
is being proposed to change the term ``diseases'' to ``infections'' to 
use more appropriate clinical terminology. This proposed revision does 
not substantively change the meaning. It will remain a class III 
device, as FDA has neither received nor identified valid scientific 
evidence from nonclinical or clinical studies that demonstrate the 
safety and effectiveness of that type of female condom. Additionally, 
FDA is unaware of valid scientific evidence regarding the reuse of 
condoms (female or male) that could be used to establish special 
control(s) for a multiple-use female condom to provide a reasonable 
assurance of safety and effectiveness.
    FDA is proposing to identify the single-use female condom that is 
the subject of this proposed order under the new name ``single-use 
internal condom'' to indicate that the new classification regulation 
includes the use of these devices inserted internally for vaginal and/
or anal intercourse. This technology is distinct from that of male 
condoms, which completely cover the penis with a closely fitting 
membrane. This proposed classification does not include male condoms 
that are class II devices regulated under Sec. Sec.  884.5300 and 
884.5310. FDA believes use of this device for vaginal and anal 
intercourse engender the same risks to health (with the exception of 
the risk of pregnancy when used for anal intercourse) and that the 
proposed special controls can effectively mitigate those risks when the 
device is used for these purposes.
    Section 510(m) of the FD&C Act provides that FDA may exempt a class 
II device from the premarket notification requirements under section 
510(k) of the FD&C Act if FDA determines that premarket notification is 
not necessary to provide reasonable assurance of the safety and 
effectiveness of the device. For this type of device, FDA has 
determined that premarket notification is necessary to provide 
reasonable assurance of the safety and effectiveness of the device. 
Therefore, FDA does not intend to exempt the proposed class II devices 
from 510(k) requirements. Persons who intend to market this type of 
device must submit to FDA a 510(k) and receive clearance prior to 
marketing the device.

IV. Risks to Health

    After considering the information available to FDA from the 
recommendations of the Classification Panel for the classification of 
these devices (Refs. 8 and 9); data in PMA applications P910064, 
P940033, and P080002 available to FDA under section 520(h)(4) of the 
FD&C Act; postmarket experience; and peer-reviewed literature (Refs. 4-
7), FDA determined that the probable risks to health associated with 
the use of single-use internal condoms are as follows:
     Pregnancy--Slippage, breakage, misdirection, or 
invagination of the device during vaginal intercourse could result in 
the occurrence of an undesired pregnancy.
     Transmission of infection--If the device fails due to 
slippage, breakage, misdirection, or invagination, contact with 
infected semen or vaginal secretions or vaginal/anal mucosa could 
result in the transmission of sexually-transmitted infections.

[[Page 57178]]

     Adverse tissue reaction--If the patient-contacting 
materials of the device are not biocompatible, local tissue irritation 
and sensitization, cytotoxicity, or system toxicity could occur when 
the device contacts the vagina, cervix, anus, and external male and 
female genitalia.
     Ulceration and other physical trauma--Use of the internal 
condom may cause abrasions, lacerations, bleeding, or other adverse 
effects to the vaginal, anal, or penile tissue if the device is not 
designed appropriately.

V. Summary of Data Upon Which the Reclassification Is Based

    FDA has considered and analyzed the following information: The 
Manufacturer and User Facility Device Experience (MAUDE) database; data 
contained in PMAs approved 6 or more years before the date of this 
proposed order (reviewed under section 520(h)(4) of the FD&C Act, also 
known as the 6-year rule) (Ref. 10); the published literature; and the 
recommendations of the Classification Panel and FC1 and FC2 Panels.
    Since 1993, the Center for Devices and Radiological Health (CDRH) 
has received one medical device report (MDR) regarding an adverse event 
associated with the use of an internal condom. This MDR reported injury 
following off-label use of the FC1 Female Condom during anal 
intercourse; the FC1 Female Condom is indicated for vaginal 
intercourse. Considering the number of internal condoms distributed in 
the United States since 1993 (approximately 3 to 4 million per year), 
the number of adverse events reported is low. FDA acknowledges that 
because internal condoms are over-the-counter devices, adverse events 
may be under reported.
    Starting in 1989, several Panel meetings were held to discuss the 
safety and effectiveness of the internal condom. During the March 7, 
1989, meeting, the Classification Panel recommended that the internal 
condom be classified into class III due to the absence of testing and 
clinical medical data regarding the safety and effectiveness of the 
device. On January 31 and December 10, 1992, the Obstetrics and 
Gynecology Devices Panel (referred to as the ``FC1 Panel'') was 
convened to discuss the safety and effectiveness of the FC1 Female 
Condom and provide recommendations to FDA regarding a specific PMA 
application (P910064). During these meetings, the FC1 Panel discussed 
the available nonclinical and clinical data on the FC1 Female Condom, 
which included an acute failure modes study and contraceptive 
effectiveness study. On December 10, 1992, the FC1 Panel expressed 
concern regarding the high failure rates (21.7 percent rate of 
pregnancy in the Latin American population, 21.4 percent rate of 
pregnancy in U.S. women less than 25 years of age, 5.4 percent total 
clinical failure rate) of the FC1 Female Condom but recommended 
approval with conditions, which included labeling changes aimed at 
limiting the safety and effectiveness claims and the development of 
physician labeling. The FC1 Panel based this decision on the fact that 
no other barrier method existed for women to protect themselves against 
transmission of STIs if their partner would not use a male condom.
    On January 8, 2008, FDA received a PMA (P080002) from the Female 
Health Company for the FC2 Female Condom (an updated version of the 
Reality Female Condom, now also referred to as the FC1 Female Condom), 
comprised of a nitrile sheath, nitrile outer ring, and polyurethane 
inner ring. Data provided in this PMA demonstrated that the FC2 Female 
Condom is an effective barrier to viral particles, is biocompatible, 
has acceptable mechanical properties, and has comparable rates of total 
clinical failure (2.18 percent) when compared to the FC1 Female Condom 
(2.92 percent). On December 11, 2008, CDRH convened the Obstetrics and 
Gynecology Devices Panel (referred to as the ``FC2 Panel'') in 2008 to 
discuss the safety and effectiveness of the FC2 Female Condom. The FC2 
Panel recommended approval of the device with conditions, which 
included labeling changes aimed at improving consumer understanding of 
possible failure modes of the FC2 Female Condom and the outcomes of the 
acute failure modes study. The FC2 Panel found that the acute failure 
modes study comparing the FC2 Female Condom to the FC1 Female Condom 
provided a reasonable assurance of the safety and effectiveness for the 
FC2 Female Condom. Additionally, the FC2 Panel did not believe a 
contraceptive effectiveness study was needed to demonstrate reasonable 
assurance of safety and effectiveness because of the similarities in 
design between the FC2 and FC1 Female Condoms and the results of the 
acute failure modes study, which demonstrated comparable rates of 
clinical failure between the two female condoms. However, the FC2 Panel 
noted that the recommendation to not require a contraceptive 
effectiveness study applied only to the FC2 Female Condom and not other 
female condoms. As outlined in the proposed special controls in section 
VI, FDA has determined that a contraceptive effectiveness study is 
necessary to mitigate the risks to health related to pregnancy for this 
device type when used for vaginal intercourse.
    A review of published literature evaluating the clinical use of the 
FC2 Female Condom indicates that clinical failure occurred in less than 
5 percent of device uses (Refs. 4-7). Clinical failure is defined as 
the sum total of acute failure events for the internal condom. For the 
FC2 Female Condom, the acute failure events are slippage, breakage, 
misdirection, and invagination. This clinical failure rate may decrease 
with increased user experience with internal condoms (Ref. 5). The 
adverse events experienced by users of internal condom were infrequent 
and mild. The results of these published studies indicate that the FC2 
Female Condom is effective and has a favorable safety profile. FDA 
identified no new risks or safety and effectiveness concerns from the 
published literature that it did not previously identify through its 
review of the PMAs or either of the prior Obstetrics and Gynecology 
Devices Panel (``The Panel'') discussions of the female condom.
    FDA acknowledges that the available valid scientific evidence, 
including the review of the MAUDE database, previous PMA approvals and 
The Panel discussions, and the published literature, primarily discuss 
use of internal condoms for vaginal intercourse. FDA believes that with 
the exception of pregnancy, the risks associated with internal condoms 
for vaginal intercourse are the same as those for anal intercourse 
(Refs. 11-13). Accordingly, FDA has tentatively determined that special 
controls can be established, in combination with general controls, 
which will provide reasonable assurance of the safety and effectiveness 
of internal condoms used for anal intercourse.
    Based on its review of the FC1 and FC2 Female Condom PMAs; the 
discussions of the Classification Panel, FC1 Panel, and FC2 Panel on 
the safety and effectiveness of the internal condom; and peer-reviewed 
published literature, FDA has tentatively determined that available 
nonclinical and clinical performance data support that the risks 
associated with the internal condom are well understood and can be 
mitigated through special controls, including performance testing and 
labeling. FDA has also tentatively determined that the identified 
mitigation measures can be used to establish special controls, in 
addition to general controls, which are necessary to

[[Page 57179]]

provide a reasonable assurance of safety and effectiveness for this 
device type. FDA believes that premarket notification and establishment 
of special controls will allow for assessment of the design and 
materials of single-use internal condoms through completion of a risk 
analysis, biocompatibility testing, mechanical performance testing, 
viral penetration testing, and clinical performance testing and 
sufficient labeling. FDA, on its own initiative, is proposing to 
reclassify this postamendments class III device type into class II.

VI. Proposed Special Controls

    FDA believes that the following special controls, together with 
general controls, address the risks to health and provide reasonable 
assurance of safety and effectiveness to mitigate the risks to health 
described in section V for the aforementioned single-use internal 
condoms.
    The risks of pregnancy and STI are the most clinically significant 
risks of the single-use internal condom when used for vaginal and/or 
anal intercourse. Clinical testing is necessary to mitigate these risks 
to health. Clinical testing evaluates the rate of total clinical 
failure of the device and the rate of individual failure modes 
(slippage, breakage, misdirection, invagination, and other failure 
modes as appropriate) when the device is used as intended (i.e., during 
vaginal and/or anal intercourse). When the device is indicated for 
vaginal intercourse, clinical testing evaluates the cumulative 
pregnancy rate based on a contraceptive effectiveness study.
    To mitigate the risk of STI due to contact with infected semen or 
vaginal secretions or vaginal/anal mucosa, FDA believes that a viral 
penetration study is needed to demonstrate that the device is an 
effective barrier to STIs.
    In addition to clinical testing and viral penetration testing to 
mitigate the risks of pregnancy and STI, FDA believes that the device 
must demonstrate that it performs as intended under the anticipated 
conditions of use (i.e., vaginal and/or anal intercourse). Mechanical 
testing of the device must demonstrate that the device can withstand 
forces under anticipated use conditions by evaluation of the tensile, 
tear, and burst properties of the device. Compatibility testing with 
personal lubricants must determine whether the physical properties of 
the device are adversely affected by use of additional lubricants. 
Furthermore, shelf-life testing must demonstrate that the device 
maintains its performance characteristics and the packaging of the 
device maintains its integrity for the duration of the proposed shelf-
life. The risk of an adverse tissue reaction due to the patient-
contacting materials of the device is an additional risk of the single-
use internal condom when used for vaginal and/or anal intercourse. In 
order to mitigate this risk, FDA believes the device must demonstrate 
biocompatibility.
    FDA also believes that comprehensive labeling describing risks and 
mitigation measures associated with the single-use internal condom must 
be listed. When the device is indicated for vaginal intercourse, the 
labeling must include a contraceptive effectiveness table comparing 
typical use (actual use of the method, including inconsistent and 
incorrect use) and perfect use (when used correctly 100 percent of the 
time) pregnancy rates of the device to other available methods of birth 
control. The labeling must also list the adverse events associated with 
the device, including potential transmission of infection, adverse 
tissue reaction, and ulceration or other physical trauma. Because the 
physical properties of the device may be adversely affected by the use 
of personal lubricants, the labeling must specify whether the device is 
compatible with additional types of personal lubricants (e.g., water-
based, silicone-based). Finally, the labeling must specify an 
expiration date to ensure that the device performs as intended over the 
stated shelf-life.
    Table 1 shows how FDA believes that the risks to health identified 
in section IV can be mitigated by the proposed special controls. This 
reclassification order and the identified special controls, if 
finalized, would provide sufficient detail regarding FDA's requirements 
to reasonably assure safety and effectiveness of single-use internal 
condoms.

                Table 1--Risks to Health and Mitigation Measures for Single-Use Internal Condoms
----------------------------------------------------------------------------------------------------------------
           Identified risks to health                                   Mitigation measures
----------------------------------------------------------------------------------------------------------------
Pregnancy.......................................  Contraceptive effectiveness study.
                                                  Acute failure modes study.
                                                  Nonclinical performance testing.
                                                  Shelf-life.
                                                  Labeling.
Transmission of Infection.......................  Acute failure modes study.
                                                  Viral penetration study.
                                                  Nonclinical performance testing.
                                                  Shelf-life.
                                                  Labeling.
Adverse tissue reaction.........................  Biocompatibility.
                                                  Labeling.
Ulceration and other physical trauma............  Acute failure modes study.
                                                  Nonclinical performance testing.
                                                  Shelf-life.
                                                  Labeling.
----------------------------------------------------------------------------------------------------------------

VII. Analysis of Environmental Impact

    The Agency has determined under 21 CFR 25.34(b) that this action is 
of a type that does not individually or cumulatively have a significant 
effect on the human environment. Therefore, neither an environmental 
assessment nor an environmental impact statement is required.

VIII. Paperwork Reduction Act of 1995

    This proposed order refers to currently approved collections of 
information found in FDA regulations. These collections of information 
are subject to review by the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The 
collections of information in part 807, subpart E, have been approved 
under OMB control number 0910-0120; the collections of information in 
21 CFR part 814,

[[Page 57180]]

subparts A through E, have been approved under OMB control number 0910-
0231; and the collections of information under 21 CFR part 801 have 
been approved under OMB control number 0910-0485.

IX. Proposed Effective Date

    FDA proposes that any final order based on this proposed order 
become effective 30 days after the date of its publication in the 
Federal Register.

X. References

    The following references are on display in Dockets Management Staff 
(see ADDRESSES), and are available for viewing by interested persons 
between 9 a.m. and 4 p.m., Monday through Friday; most are available 
electronically at https://www.regulations.gov. FDA has verified the Web 
site addresses, as of the date this document publishes in the Federal 
Register, but Web sites are subject to change over time.

    1. P910064 Summary of Safety and Effectiveness Data (SSED).
    2. P940033 Premarket Approval Notice (60 FR 30310, June 8, 
1995).
    3. P080002 SSED is available on FDA's Web site at https://www.accessdata.fda.gov/cdrh_docs/pdf8/P080002B.pdf.
    4. Joanis, C., M. Beksinska, C. Hart, et al., ``Three New Female 
Condoms: Which Do South-African Women Prefer?'' Contraception, 
83(3):248-254, 2011.
    5. Beksinska, M., J. Smit, C. Joanis, et al., ``Practice Makes 
Perfect: Reduction in Female Condom Failures and User Problems With 
Short-Term Experience in a Randomized Trial.'' Contraception, 
86(2):127-131, 2012.
    6. Beksinska, M.E., G. Piaggio, J.A. Smit, et al., ``Performance 
and Safety of the Second-Generation Female Condom (FC2) Versus the 
Woman's, the VA Worn-of-Women, and the Cupid Female Condoms: A 
Randomised Controlled Non-Inferiority Crossover Trial.'' The Lancet 
Global Health, 1(3):e146-152, 2013.
    7. Beksinska, M., R. Greener, I. Kleinschmidt, et al., ``A 
Randomized Noninferiority Crossover Controlled Trial of the 
Functional Performance and Safety of New Female Condoms: An 
Evaluation of the Velvet, Cupid2, and FC2.'' Contraception, 
92(3):261-267, 2015.
    8. The panel transcript and other meeting materials for the 
December 11, 2008, Obstetrics and Gynecology Devices Panel are 
available on FDA's Web site at https://wayback.archive-it.org/7993/20170405192707/https:/www.fda.gov/AdvisoryCommittees/CommitteesMeetingMaterials/MedicalDevices/MedicalDevicesAdvisoryCommittee/ObstetricsandGynecologyDevices/ucm433049.htm.
    9. The panel transcript and other meeting materials for the 
March 7, 1989, January 31, 1992, and December 10, 1992, Obstetrics 
and Gynecology Devices Panel.
    10. ``Guidance for Industry and for FDA Reviewers: Guidance on 
Section 216 of the Food and Drug Administration Modernization Act of 
1997,'' issued on August 9, 2000. Available at https://www.fda.gov/downloads/MedicalDevices/DeviceRegulationandGuidance/GuidanceDocuments/ucm073709.pdf.
    11. Kelvin, E.A., J.E. Mantell, N. Candelario, et al., ``Off-
Label Use of the Female Condom for Anal Intercourse Among Men in New 
York City.'' American Journal of Public Health, 101(12):2241-2244, 
2011.
    12. Gross, M., S.P. Buchbinder, S. Holte, et al., ``Use of 
Reality `Female Condoms' for Anal Sex by US Men Who Have Sex With 
Men. HIVNET Vaccine Preparedness Study Protocol Team.'' American 
Journal of Public Health, 89(11):1739-1741, 1999.
    13. Renzi, C., S.R. Tabet, J.A. Stucky, et al., ``Safety and 
Acceptability of the Reality Condom for Anal Sex Among Men Who Have 
Sex With Men.'' AIDS, 17(5):727-731, 2003.

List of Subjects in 21 CFR Part 884

    Medical devices.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under 
authority delegated to the Commissioner of Food and Drugs, it is 
proposed that 21 CFR part 884 be amended as follows:

PART 884--OBSTETRICAL AND GYNECOLOGICAL DEVICES

0
1. The authority citation for part 884 continues to read as follows:

    Authority:  21 U.S.C. 351, 360, 360c, 360e, 360j, 360l, 371.

0
2. Amend Sec.  884.5330 in Subpart F by revising the section heading 
and paragraph (a) to read as follows:


Sec.  884.5330   Multiple-use female condom.

    (a) Identification. A multiple-use female condom is a sheath-like 
device that lines the vaginal wall and is inserted into the vagina 
prior to the initiation of coitus. At the conclusion of coitus, the 
device can be reused. It is indicated for contraception and 
prophylactic (preventing the transmission of sexually transmitted 
infections) purposes.
* * * * *
0
3. Add Sec.  884.5340 in Subpart F to read as follows:


Sec.  884.5340   Single-use internal condom.

    (a) Identification. A single-use internal condom is a sheath-like 
device that lines the vaginal or anal wall and is inserted into the 
vagina or anus prior to the initiation of coitus. At the conclusion of 
coitus, it is removed and discarded. It is indicated for contraception 
and/or prophylactic (prevention of sexually transmitted infections) 
purposes.
    (b) Classification. Class II (special controls). The special 
controls for this device are:
    (1) Clinical performance testing must evaluate the following:
    (i) Rate of clinical failure of the device and rate of individual 
failure modes of the device based on an acute failure modes study 
evaluating the intended use (vaginal and/or anal intercourse); and
    (ii) Cumulative pregnancy rate when using the device based on a 
contraceptive effectiveness study (when the device is indicated for 
vaginal intercourse).
    (2) Viral penetration testing must demonstrate the device is an 
effective barrier to sexually transmitted infections.
    (3) Nonclinical performance testing must demonstrate that the 
device performs as intended under anticipated conditions of use. The 
following performance characteristics must be evaluated:
    (i) Mechanical testing must demonstrate the device can withstand 
forces under anticipated use conditions, include evaluation of tensile, 
tear, and burst properties of the device.
    (ii) Compatibility testing with personal lubricants must determine 
whether the physical properties of the device are adversely affected by 
use of additional lubricants.
    (4) The device must be demonstrated to be biocompatible.
    (5) Shelf-life testing must demonstrate that the device maintains 
its performance characteristics and the packaging of the device must 
maintain integrity for the duration of the shelf-life.
    (6) Labeling of the device must include:
    (i) Contraceptive effectiveness table comparing typical use and 
perfect use pregnancy rates with the device to other available methods 
of birth control;
    (ii) Statement regarding the adverse events associated with the 
device, including potential transmission of infection, adverse tissue 
reaction, and ulceration or other physical trauma;
    (iii) Expiration date; and
    (iv) Statement regarding compatibility with additional types of 
personal lubricants.

    Dated: November 28, 2017.
Leslie Kux,
Associate Commissioner for Policy.
[FR Doc. 2017-26011 Filed 12-1-17; 8:45 am]
 BILLING CODE 4164-01-P



                                                 57174                 Federal Register / Vol. 82, No. 231 / Monday, December 4, 2017 / Proposed Rules

                                                 List of Subjects in 14 CFR Part 39                      condition on an aviation product. The MCAI              (2) Contacting the Manufacturer: For any
                                                                                                         describes the unsafe condition as improperly          requirement in this AD to obtain corrective
                                                   Air transportation, Aircraft, Aviation                tied castle nuts on the aileron, rudder and           actions from a manufacturer, the action must
                                                 safety, Incorporation by reference,                     elevator trim tab (or autotab) attachment             be accomplished using a method approved
                                                 Safety.                                                 bolts. We are issuing this proposed AD to             by the Manager, Small Airplane Standards
                                                                                                         inspect the aileron trim tab, rudder trim tab         Branch, FAA; or Agência Nacional de
                                                 The Proposed Amendment                                  and elevator trim tab (or autotab), and correct       Aviação Civil (ANAC), which is the aviation
                                                   Accordingly, under the authority                      any discrepancy, which if not corrected, may          authority for Brazil.
                                                 delegated to me by the Administrator,                   cause an increase in dynamic loads and
                                                                                                                                                               (j) Related Information
                                                 the FAA proposes to amend 14 CFR part                   possible flutter, leading to structural failure
                                                                                                         and loss of control.                                     Refer to MCAI Agência Nacional de
                                                 39 as follows:                                                                                                Aviação Civil (ANAC), which is the aviation
                                                                                                         (f) Actions and Compliance                            authority for Brazil, AD No.: 2017–11–01,
                                                 PART 39—AIRWORTHINESS                                                                                         dated November 10, 2017; PHENOM by
                                                                                                            Unless already done, do the following
                                                 DIRECTIVES                                              actions in paragraphs (f)(1) and (2) of this AD       Embraer Alert Service Bulletin (SB) No.: 500–
                                                                                                         following the Accomplishment Instructions             27–A026, Revision 1, dated October 6, 2017;
                                                 ■ 1. The authority citation for part 39                 in PHENOM by Embraer Alert Service                    and PHENOM by Embraer Alert SB No.: 505–
                                                 continues to read as follows:                           Bulletin (SB) No.: 500–27–A026, Revision 1,           27–A028, Revision 2, dated October 6, 2017,
                                                     Authority: 49 U.S.C. 106(g), 40113, 44701.          dated October 6, 2017; or PHENOM by                   for related information. You may examine the
                                                                                                         Embraer Alert SB No.: 505–27–A028,                    MCAI on the Internet at http://
                                                 § 39.13   [Amended]                                     Revision 2, dated October 6, 2017, as                 www.regulations.gov by searching for and
                                                 ■ 2. The FAA amends § 39.13 by adding                   applicable:                                           locating Docket No. FAA–2017–1119. For
                                                 the following new AD:                                      (1) Within the next 25 hours time in               service information related to this AD,
                                                                                                         service (TIS) after the effective date of this        contact Embraer S.A., Phenom Maintenance
                                                 Embraer S.A.: Docket No. FAA–2017–1119;                 AD or within the next 12 months after the             Support, Avenida Brigadeiro Faria Lima,
                                                    Product Identifier 2017–CE–037–AD.                   effective date of this AD, whichever occurs           2170, São José dos Campos—SP—12227–901,
                                                 (a) Comments Due Date                                   first, inspect the aileron trim tab, rudder trim      P.O. Box 36/2, Brasil; phone: +55 12 3927
                                                                                                         tab, and elevator trim tab attachment points          1000; fax: +55 12 3927–2619; email:
                                                   We must receive comments by January 18,               to make sure the cotter pin is installed on the       phenom.reliability@embraer.com.br; Internet:
                                                 2018.                                                   castle nut of the attaching bolts.                    http://www.embraer.com.br/en-US/Pages/
                                                 (b) Affected ADs                                           (2) If any discrepancy is found during the         home.aspx. You may review this referenced
                                                                                                         inspection required in paragraph (f)(1) of this       service information at the FAA, Policy and
                                                   None.                                                 AD, before further flight, correct the                Innovation Division, 901 Locust, Kansas City,
                                                 (c) Applicability                                       discrepancy.                                          Missouri 64106. For information on the
                                                                                                                                                               availability of this material at the FAA, call
                                                    This AD applies to Embraer S.A. Models               (g) Credit for Actions Accomplished in                (816) 329–4148.
                                                 EMB–500 and EMB–505 airplanes, serial                   Accordance With Previous Service
                                                 numbers 50000246, 50000267, 50000286,                   Information                                             Issued in Kansas City, Missouri, on
                                                 50000289, 50000291, 50000299, 50000304,                    This AD allows credit for the actions              November 21, 2017.
                                                 50000305, 50000306, 50000310, 50000348,                 required in paragraph (f) of this AD if done          Melvin J. Johnson,
                                                 50000359, 50000368, 50000370, 50000372,                 before the effective date of this AD following
                                                 50000376, 50000377, 50000378, 50000379,                                                                       Deputy Director, Policy & Innovation Division,
                                                                                                         PHENOM by Embraer Alert SB No. 500–27–                Aircraft Certification Service.
                                                 50000380, 50500118, 50500122, 50500148,                 A026, original issue, dated September 29,
                                                 50500151, 50500167, 50500176, 50500179,                 2017; PHENOM by Embraer Alert SB No.                  [FR Doc. 2017–25888 Filed 12–1–17; 8:45 am]
                                                 50500185, 50500188, 50500191, 50500197,                 505–27–A028, original issue, dated                    BILLING CODE 4910–13–P
                                                 50500203, 50500207, 50500209, 50500212,                 September 28, 2017; or PHENOM by Embraer
                                                 50500214, 50500215, 50500219, 50500225,                 Alert SB 505–27–A028, Revision 01, dated
                                                 50500226, 50500231, 50500242, 50500244,                 September 29, 2017; as applicable.
                                                 50500246, 50500248, 50500250, 50500256,                                                                       DEPARTMENT OF HEALTH AND
                                                 50500260, 50500266, 50500273, 50500275,                 (h) Reporting Requirement                             HUMAN SERVICES
                                                 50500277, 50500280, 50500282, 50500285,                    Although PHENOM by Embraer Alert SB
                                                 50500287, 50500288, 50500289, 50500292,                 No.: 500–27–A026, Revision 1, dated October           Food and Drug Administration
                                                 50500293, 50500294, 50500296, 50500297,                 6, 2017; and PHENOM by Embraer Alert SB
                                                 50500298, 50500300, 50500302, 50500304,                 No.: 505–27–A028, Revision 2, dated October           21 CFR Part 884
                                                 50500306, 50500309, 50500311, 50500317,                 6, 2017; specify to submit certain information
                                                 50500318, 50500323, 50500328, 50500331,                                                                       [Docket No. FDA–2017–N–6538]
                                                                                                         to the manufacturer, this AD does not require
                                                 50500333, 50500335, 50500338, 50500340,                 that action.
                                                 50500344, 50500345, 50500348, 50500351,                                                                       Obstetrical and Gynecological
                                                 50500357, 50500361, 50500362, 50500363,                 (i) Other FAA AD Provisions                           Devices; Reclassification of Single-Use
                                                 50500364, 50500365, 50500367, 50500368,                    The following provisions also apply to this        Female Condom, To Be Renamed
                                                 50500371, 50500372, 50500379, 50500381,                 AD:                                                   Single-Use Internal Condom
                                                 50500382, 50500385, 50500386, 50500390,                    (1) Alternative Methods of Compliance
                                                 50500391, 50500394, 50500395, 50500397,                 (AMOCs): The Manager, Small Airplane                  AGENCY:    Food and Drug Administration,
                                                 50500398, 50500399, 50500400, 50500402,                 Standards Branch, FAA, has the authority to           HHS.
                                                 50500403, 50500404, 50500407, 50500410,                 approve AMOCs for this AD, if requested               ACTION:   Proposed order.
                                                 50500415, 50500418, and 50500424,                       using the procedures found in 14 CFR 39.19.
                                                 certificated in any category.                           Send information to ATTN: Jim Rutherford,             SUMMARY:    The Food and Drug
                                                                                                         Aerospace Engineer, FAA, Small Airplane               Administration (FDA) is proposing to
ethrower on DSK3G9T082PROD with PROPOSALS




                                                 (d) Subject                                             Standards Branch, 901 Locust, Room 301,               reclassify single-use female condoms,
                                                   Air Transport Association of America                  Kansas City, Missouri 64106; telephone:               renaming the device to ‘‘single-use
                                                 (ATA) Code 27: Flight Controls.                         (816) 329–4165; fax: (816) 329–4090; email:           internal condom,’’ a postamendments
                                                                                                         jim.rutherford@faa.gov. Before using any
                                                 (e) Reason                                              approved AMOC on any airplane to which
                                                                                                                                                               class III device (product code MBU),
                                                    This AD was prompted by mandatory                    the AMOC applies, notify your appropriate             into class II (special controls) subject to
                                                 continuing airworthiness information (MCAI)             principal inspector (PI) in the FAA Flight            premarket notification (510(k)). FDA is
                                                 originated by an aviation authority of another          Standards District Office (FSDO), or lacking          also identifying the proposed special
                                                 country to identify and correct an unsafe               a PI, your local FSDO.                                controls that the Agency believes are


                                            VerDate Sep<11>2014   16:46 Dec 01, 2017   Jkt 244001   PO 00000   Frm 00011   Fmt 4702   Sfmt 4702   E:\FR\FM\04DEP1.SGM   04DEP1


                                                                       Federal Register / Vol. 82, No. 231 / Monday, December 4, 2017 / Proposed Rules                                             57175

                                                 necessary to provide a reasonable                         • If you want to submit a comment                   of comments to public dockets, see 80
                                                 assurance of safety and effectiveness of                with confidential information that you                FR 56469, September 18, 2015, or access
                                                 the device. FDA is proposing this                       do not wish to be made available to the               the information at: https://www.gpo.gov/
                                                 reclassification on its own initiative                  public, submit the comment as a                       fdsys/pkg/FR-2015-09-18/pdf/2015-
                                                 based on new information. FDA is also                   written/paper submission and in the                   23389.pdf.
                                                 proposing to amend the existing device                  manner detailed (see ‘‘Written/Paper                     Docket: For access to the docket to
                                                 identification for ‘‘female condom,’’ a                 Submissions’’ and ‘‘Instructions’’).                  read background documents or the
                                                 preamendments class III device (product                 Written/Paper Submissions                             electronic and written/paper comments
                                                 code OBY), by renaming the device                                                                             received, go to https://
                                                 ‘‘multiple-use female condom,’’ to                         Submit written/paper submissions as                www.regulations.gov and insert the
                                                 distinguish it from the ‘‘single-use                    follows:                                              docket number, found in brackets in the
                                                 internal condom.’’ If finalized, this                      • Mail/Hand delivery/Courier (for                  heading of this document, into the
                                                 order will reclassify single-use female                 paper submissions): Dockets                           ‘‘Search’’ box and follow the prompts
                                                 condoms from class III to class II and                  Management Staff (HFA–305), Food and                  and/or go to the Dockets Management
                                                 reduce regulatory burdens on industry                   Drug Administration, 5630 Fishers                     Staff, 5630 Fishers Lane, Rm. 1061,
                                                 as these types of devices will no longer                Lane, Rm. 1061, Rockville, MD 20852.                  Rockville, MD 20852.
                                                                                                            • For written/paper comments
                                                 be required to submit a premarket                                                                             FOR FURTHER INFORMATION CONTACT:
                                                                                                         submitted to Dockets Management Staff,
                                                 approval application (PMA) but can                                                                            Monica Garcia, Center for Devices and
                                                                                                         FDA will post your comment, as well as
                                                 instead submit a less burdensome 510(k)                                                                       Radiological Health, Food and Drug
                                                                                                         any attachments, except for information
                                                 before marketing their device.                                                                                Administration, 10903 New Hampshire
                                                                                                         submitted, marked and identified, as
                                                 DATES: Submit either electronic or                      confidential, if submitted as detailed in             Ave., Bldg. 66, Rm. G215, Silver Spring,
                                                 written comments on the proposed                        ‘‘Instructions.’’                                     MD 20993, 240–402–2791,
                                                 order by February 2, 2018. Please see                      Instructions: All submissions received             monica.garcia@fda.hhs.gov.
                                                 section IX of this document for the                     must include the Docket No. FDA–                      SUPPLEMENTARY INFORMATION:
                                                 proposed effective date of any final                    2017–N–6538 for ‘‘Obstetrical and
                                                                                                                                                               I. Background—Regulatory Authorities
                                                 order that may publish based on this                    Gynecological Devices; Reclassification
                                                 proposed order.                                         of Single-Use Female Condom, To Be                       The Federal Food, Drug, and Cosmetic
                                                                                                         Renamed Single-Use Internal Condom.’’                 Act (the FD&C Act), as amended,
                                                 ADDRESSES:   You may submit comments                                                                          establishes a comprehensive system for
                                                                                                         Received comments, those filed in a
                                                 as follows. Please note that late,                                                                            the regulation of medical devices
                                                                                                         timely manner (see ADDRESSES), will be
                                                 untimely filed comments will not be                                                                           intended for human use. Section 513 of
                                                                                                         placed in the docket and, except for
                                                 considered. Electronic comments must                    those submitted as ‘‘Confidential                     the FD&C Act (21 U.S.C. 360c)
                                                 be submitted on or before February 2,                   Submissions,’’ publicly viewable at                   established three categories (classes) of
                                                 2018. The https://www.regulations.gov                   https://www.regulations.gov or at the                 devices, reflecting the regulatory
                                                 electronic filing system will accept                    Dockets Management Staff between 9                    controls needed to provide reasonable
                                                 comments until midnight Eastern Time                    a.m. and 4 p.m., Monday through                       assurance of their safety and
                                                 at the end of February 2, 2018.                         Friday.                                               effectiveness. The three categories of
                                                 Comments received by mail/hand                             • Confidential Submissions—To                      devices are class I (general controls),
                                                 delivery/courier (for written/paper                     submit a comment with confidential                    class II (special controls), and class III
                                                 submissions) will be considered timely                  information that you do not wish to be                (premarket approval).
                                                 if they are postmarked or the delivery                  made publicly available, submit your                     Under section 513(d) of the FD&C Act,
                                                 service acceptance receipt is on or                     comments only as a written/paper                      devices that were in commercial
                                                 before that date.                                       submission. You should submit two                     distribution before the enactment of the
                                                 Electronic Submissions                                  copies total. One copy will include the               1976 amendments, May 28, 1976
                                                                                                         information you claim to be confidential              (generally referred to as
                                                   Submit electronic comments in the                     with a heading or cover note that states              ‘‘preamendments devices’’), are
                                                 following way:                                          ‘‘THIS DOCUMENT CONTAINS                              classified after FDA has: (1) Received a
                                                   • Federal Rulemaking Portal: https://                 CONFIDENTIAL INFORMATION.’’ The                       recommendation from a device
                                                 www.regulations.gov. Follow the                         Agency will review this copy, including               classification panel (an FDA advisory
                                                 instructions for submitting comments.                   the claimed confidential information, in              committee) (the Panel); (2) published
                                                 Comments submitted electronically,                      its consideration of comments. The                    the Panel’s recommendation for
                                                 including attachments, to https://                      second copy, which will have the                      comment, along with a proposed
                                                 www.regulations.gov will be posted to                   claimed confidential information                      regulation classifying the device; and (3)
                                                 the docket unchanged. Because your                      redacted/blacked out, will be available               published a final regulation classifying
                                                 comment will be made public, you are                    for public viewing and posted on                      the device. FDA has classified most
                                                 solely responsible for ensuring that your               https://www.regulations.gov. Submit                   preamendments devices under these
                                                 comment does not include any                            both copies to the Dockets Management                 procedures.
                                                 confidential information that you or a                  Staff. If you do not wish your name and                  Devices that were not in commercial
                                                 third party may not wish to be posted,                  contact information to be made publicly               distribution prior to May 28, 1976
                                                 such as medical information, your or                    available, you can provide this                       (generally referred to as
ethrower on DSK3G9T082PROD with PROPOSALS




                                                 anyone else’s Social Security number, or                information on the cover sheet and not                ‘‘postamendments devices’’) are
                                                 confidential business information, such                 in the body of your comments and you                  automatically classified by section
                                                 as a manufacturing process. Please note                 must identify this information as                     513(f)(1) of the FD&C Act into class III
                                                 that if you include your name, contact                  ‘‘confidential.’’ Any information marked              without any FDA rulemaking process.
                                                 information, or other information that                  as ‘‘confidential’’ will not be disclosed             Those devices remain in class III and
                                                 identifies you in the body of your                      except in accordance with 21 CFR 10.20                require premarket approval unless, and
                                                 comments, that information will be                      and other applicable disclosure law. For              until, the device is reclassified into class
                                                 posted on https://www.regulations.gov.                  more information about FDA’s posting                  I or II, or FDA issues an order finding


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                                                 57176                 Federal Register / Vol. 82, No. 231 / Monday, December 4, 2017 / Proposed Rules

                                                 the device to be substantially                          available. Publicly available information             known as the Gee Bee Ring. WPC
                                                 equivalent, in accordance with section                  excludes trade secret and/or                          provided documentation in the 510(k)
                                                 513(i) of the FD&C Act, to a predicate                  confidential commercial information,                  that indicated the Gee Bee Ring was a
                                                 device that does not require premarket                  e.g., the contents of a pending PMA (see              pouch-like device designed to line the
                                                 approval. The Agency determines                         section 520(c) of the FD&C Act (21                    wall of the vagina during coitus for
                                                 whether new devices are substantially                   U.S.C. 360j(c)). Section 520(h)(4) of the             contraceptive (pregnancy prevention)
                                                 equivalent to predicate devices by                      FD&C Act provides that FDA may use,                   and prophylactic (prevention of STI
                                                 means of premarket notification                         for reclassification of a device, certain             transmission) purposes. However, in
                                                 procedures in section 510(k) of the                     information in a PMA 6 years after the                contrast to the Reality Female Condom,
                                                 FD&C Act (21 U.S.C. 360(k)) and part                    application has been approved. This                   the Gee Bee Ring was indicated for
                                                 807 (21 CFR part 807).                                  includes information from clinical and                reuse (versus single-use) and was made
                                                    A postamendments device that has                     preclinical tests or studies that                     using animal tissue (versus
                                                 been initially classified in class III                  demonstrate the safety or effectiveness               polyurethane).
                                                 under section 513(f)(1) of the FD&C Act                 of the device, but does not include                      Before receiving WPC’s 510(k), FDA
                                                 may be reclassified into class I or class               descriptions of methods of manufacture                was unaware of the existence,
                                                 II under section 513(f)(3) of the FD&C                  or product composition and other trade                commercial distribution, and use of the
                                                 Act. On July 9, 2012, Food and Drug                     secrets.                                              Gee Bee Ring as a female condom. FDA
                                                 Administration Safety and Innovation                       Section 510(m) of the FD&C Act                     verified the preamendments status and
                                                 Act (FDASIA) (Pub. L. 112–144) was                      provides that a class II device may be                uses of the Gee Bee Ring, and presented
                                                 enacted. Section 608(a) of FDASIA                       exempted from the premarket                           this information to the Obstetrics and
                                                 amended section 513(e) of the FD&C                      notification requirements, if the Agency              Gynecology Devices Panel (referred to as
                                                 Act, changing the process for                           determines that premarket notification                the Classification Panel) on March 7,
                                                 reclassifying a device from rulemaking                  is not necessary to reasonably assure the             1989. The Classification Panel reviewed
                                                 to an administrative order. Section                     safety and effectiveness of the device.               all available information concerning the
                                                 513(e) provides that FDA may, by                                                                              classification of a sheath-like device that
                                                                                                         II. Device Description and Regulatory
                                                 administrative order, reclassify a device                                                                     is inserted into the vagina prior to coitus
                                                                                                         History
                                                 based upon ‘‘new information.’’ The                                                                           for purposes of contraception and STI
                                                 term ‘‘new information,’’ as used in                       A single-use female condom is a                    prophylaxis. The Classification Panel
                                                 section 513(e) of the FD&C Act, includes                sheath-like device that is inserted into              recommended that FDA classify this
                                                 information developed as a result of a                  the vagina prior to the initiation of                 generic type of device as distinct from
                                                 reevaluation of the data before the                     coitus and discarded at its conclusion.               the male condom identified in
                                                 Agency when the device was originally                   It includes a mechanism (e.g., flexible               § 884.5300. The Classification Panel also
                                                 classified, as well as information not                  rings) to hold the device in place during             recommended that this device be
                                                 presented, not available, or not                        sexual intercourse. The device is a                   classified into class III, because no
                                                 developed at the time. To change the                    mechanical barrier that is intended to                published laboratory or clinical study
                                                 classification of the device, the                       protect the user from sexually                        data could be found that would allow
                                                 proposed new class must have sufficient                 transmitted infections (STIs) and                     FDA to establish special controls for the
                                                 regulatory controls to provide                          prevent pregnancy. The female condom                  device, and the device is purported or
                                                 reasonable assurance of the safety and                  is distinct from the male condom, which               represented to be for a use which is of
                                                 effectiveness of the device for its                     is a sheath that completely covers the                substantial importance in preventing
                                                 intended use.                                           penis, because it is inserted internally              impairment of human health. FDA
                                                    Reevaluation of the data previously                  prior to intercourse. Based on the                    agreed with the Classification Panel’s
                                                 before the Agency is an appropriate                     differences in technology, these devices              recommended classification, and in the
                                                 basis for subsequent action where the                   have different failure modes and                      Federal Register of June 10, 1999 (64 FR
                                                 reevaluation is made in light of newly                  therefore have distinct classifications.              31164), FDA published a proposed rule
                                                 available regulatory authority (see Bell                Male condoms that completely cover the                to create a new classification regulation
                                                 v. Goddard, 366 F.2d 177, 181 (7th Cir.                 penis with a closely fitting membrane                 (§ 884.5330 (21 CFR 884.5330)) for the
                                                 1966); Ethicon, Inc. v. FDA, 762 F.                     are regulated as class II devices under               female condom and classify the device
                                                 Supp. 382, 388–391 (D.D.C. 1991)), or in                §§ 884.5300 and 884.5310 (21 CFR                      in class III. FDA finalized this rule on
                                                 light of changes in ‘‘medical science’’                 884.5300 and 884.5310). A single-use                  May 18, 2000 (65 FR 31454). The Gee
                                                 (Upjohn Co. v. Finch, 422 F.2d 944, 951                 female condom (product code MBU) is                   Bee Ring is the only female condom
                                                 (6th Cir. 1970)). Whether data before the               a postamendments device currently                     regulated under § 884.5330 and is
                                                 Agency are old or new, the ‘‘new                        regulated as a class III device under                 identified using FDA product code
                                                 information’’ to support reclassification               section 513(f)(1) of the FD&C Act. FDA                OBY. In the Federal Register of August
                                                 under section 513(f)(3) must be ‘‘valid                 first learned of the device in January                25, 2010 (75 FR 52294), FDA published
                                                 scientific evidence’’, as defined in                    1989, when FDA received a 510(k) from                 a proposed rule to require the filing,
                                                 section 513(a)(3) of the FD&C Act and                   the Wisconsin Pharmacal Company,                      under section 515(b) of the FD&C Act
                                                 21 CFR 860.7(c)(2). (See, e.g., General                 LLC (WPC). The device was intended to                 (21 U.S.C. 360e(b)), of a PMA or notice
                                                 Medical Co. v. FDA, 770 F.2d 214 (D.C.                  line the vaginal wall during sexual                   of completion of a product development
                                                 Cir. 1985); Contact Lens Mfrs. Assoc. v.                intercourse for purposes of                           protocol for any female condom that
                                                 FDA, 766 F.2d 592 (D.C. Cir.1985), cert.                contraception and STI prophylaxis. At                 was in commercial distribution before
ethrower on DSK3G9T082PROD with PROPOSALS




                                                 denied, 474 U.S. 1062 (1986)).                          that time, the device was named the                   May 28, 1976. FDA finalized this rule
                                                    FDA relies upon ‘‘valid scientific                   WPC–333 device but later renamed the                  on August 16, 2011 (76 FR 50663) and
                                                 evidence’’ in the classification process                Femshield/Reality Female Condom.                      noted that the Agency has no record of
                                                 to determine the level of regulation for                WPC purported in its 510(k) that the                  the Gee Bee Ring being marketed after
                                                 devices. To be considered in the                        Reality Female Condom was                             it was classified in 2000.
                                                 reclassification process, the ‘‘valid                   substantially equivalent to the male                     In April 1989, FDA completed its
                                                 scientific evidence’’ upon which the                    condom identified in § 884.5300, as well              review of WPC’s 510(k) and determined
                                                 Agency relies must be publicly                          as to a preamendments female condom                   that the Reality Female Condom was not


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                                                                       Federal Register / Vol. 82, No. 231 / Monday, December 4, 2017 / Proposed Rules                                          57177

                                                 substantially equivalent to either the                  III. Proposed Reclassification and                       FDA is proposing to identify the
                                                 male condom identified in § 884.5300 or                 Summary of Reasons for                                single-use female condom that is the
                                                 the Gee Bee Ring. As a result, in                       Reclassification                                      subject of this proposed order under the
                                                 accordance with section 513(f)(1) of the                   FDA is proposing to reclassify single-             new name ‘‘single-use internal condom’’
                                                 FD&C Act, the Reality Female Condom                     use female condoms from class III into                to indicate that the new classification
                                                 was automatically classified into class                 class II because sufficient information               regulation includes the use of these
                                                 III. On May 7, 1993, FDA approved the                   exists to establish special controls. FDA             devices inserted internally for vaginal
                                                 PMA for the Reality Female Condom                       believes that these special controls,                 and/or anal intercourse. This technology
                                                 (P910064) and subsequently FDA                          together with general controls, will                  is distinct from that of male condoms,
                                                 identified this device type with the                    provide a reasonable assurance of the                 which completely cover the penis with
                                                 product code MBU (Ref. 1). On April 14,                 device’s safety and effectiveness for                 a closely fitting membrane. This
                                                 1995, FDA approved the PMA for the                      single-use female condoms.                            proposed classification does not include
                                                 Femidom Female Condom (P940033),                           In accordance with section 513(f)(3) of            male condoms that are class II devices
                                                 which is identical to the Reality Female                the FD&C Act and 21 CFR part 860,                     regulated under §§ 884.5300 and
                                                 Condom. In this PMA, WPC authorized                     subpart C, FDA is proposing to                        884.5310. FDA believes use of this
                                                 Chartex International plc to incorporate                reclassify this postamendments class III              device for vaginal and anal intercourse
                                                 information contained in its approved                   device into class II (special controls).              engender the same risks to health (with
                                                 PMA for the Reality Female Condom                       FDA believes that there is sufficient                 the exception of the risk of pregnancy
                                                 (Ref. 2). On January 8, 2008, FDA                       information from nonclinical and                      when used for anal intercourse) and that
                                                 received a PMA (P080002) from the                       clinical data submitted in PMA                        the proposed special controls can
                                                 Female Health Company for the FC2                       applications P910064 (Ref. 1), P940033                effectively mitigate those risks when the
                                                 Female Condom and approved it on                        (Ref. 2), and P080002 (Ref. 3), available             device is used for these purposes.
                                                 March 10, 2009 (Ref. 3). The FC2                        to FDA under section 520(h)(4) of the                    Section 510(m) of the FD&C Act
                                                 Female Condom is a modified version of                  FD&C Act; postmarket experience; and                  provides that FDA may exempt a class
                                                 the Reality Female Condom. Since the                    peer-reviewed literature (Refs. 4–7) to               II device from the premarket notification
                                                 introduction of the FC2 Female                          establish special controls that can                   requirements under section 510(k) of the
                                                 Condom, the Reality Female Condom                       effectively mitigate the risks to health of           FD&C Act if FDA determines that
                                                 has been referred to as the FC1 Female                  single-use female condoms that are                    premarket notification is not necessary
                                                 Condom. The FC2 Female Condom is a                      identified in section IV. Absent the                  to provide reasonable assurance of the
                                                 specific example of a single-use female                 special controls identified in this                   safety and effectiveness of the device.
                                                 condom that is the subject of this                      proposed order, general controls                      For this type of device, FDA has
                                                 reclassification and is currently the only              applicable to the device are insufficient             determined that premarket notification
                                                 FDA-approved single-use female                          to provide reasonable assurance of the                is necessary to provide reasonable
                                                 condom that is being marketed in the                    safety and effectiveness of the device.               assurance of the safety and effectiveness
                                                 United States.                                             FDA is also proposing to amend the                 of the device. Therefore, FDA does not
                                                    As part of the Center for Devices and                existing device identification for female             intend to exempt the proposed class II
                                                 Radiological Health’s 2014–2015                         condom (§ 884.5330), a preamendments                  devices from 510(k) requirements.
                                                 strategic priority ‘‘Strike the Right                   class III device, by renaming the device              Persons who intend to market this type
                                                 Balance Between Premarket and                           ‘‘multiple-use female condom’’ to better              of device must submit to FDA a 510(k)
                                                 Postmarket Data Collection,’’ a                         distinguish it from the ‘‘single-use                  and receive clearance prior to marketing
                                                 retrospective review of class III devices               female condom’’ that is the subject of                the device.
                                                 subject to PMA was completed to                         this reclassification. One difference                 IV. Risks to Health
                                                 determine whether or not, based on our                  between the preamendments female
                                                 current understanding of the                            condom (product code OBY) and the                        After considering the information
                                                 technology, reclassification may be                     postamendments female condom                          available to FDA from the
                                                 appropriate. On April 29, 2015, FDA                     (product code MBU) is that the                        recommendations of the Classification
                                                 published a notice in the Federal                       preamendments female condom is                        Panel for the classification of these
                                                 Register entitled ‘‘Retrospective Review                indicated to be cleaned at the                        devices (Refs. 8 and 9); data in PMA
                                                 of Premarket Approval Application                       conclusion of coitus and reused.                      applications P910064, P940033, and
                                                 Devices; Striking the Balance Between                   Additionally, a minor revision to the                 P080002 available to FDA under section
                                                 Premarket and Postmarket Data                           identification language is being                      520(h)(4) of the FD&C Act; postmarket
                                                 Collection’’ in which FDA announced                     proposed to change the term ‘‘diseases’’              experience; and peer-reviewed literature
                                                 plans to consider reclassifying single-                 to ‘‘infections’’ to use more appropriate             (Refs. 4–7), FDA determined that the
                                                 use female condoms identified with the                  clinical terminology. This proposed                   probable risks to health associated with
                                                 MBU product code from class III to class                revision does not substantively change                the use of single-use internal condoms
                                                 II (80 FR 23798). Following this notice,                the meaning. It will remain a class III               are as follows:
                                                 FDA received seven comments, six of                     device, as FDA has neither received nor                  • Pregnancy—Slippage, breakage,
                                                 which supported reclassification of                     identified valid scientific evidence from             misdirection, or invagination of the
                                                 MBU. One comment did not support                        nonclinical or clinical studies that                  device during vaginal intercourse could
                                                 reclassification because it was stated                  demonstrate the safety and effectiveness              result in the occurrence of an undesired
ethrower on DSK3G9T082PROD with PROPOSALS




                                                 that FDA lacked information to                          of that type of female condom.                        pregnancy.
                                                 determine what risks might exist for                    Additionally, FDA is unaware of valid                    • Transmission of infection—If the
                                                 female condoms of different design,                     scientific evidence regarding the reuse               device fails due to slippage, breakage,
                                                 materials, and manufacturing processes.                 of condoms (female or male) that could                misdirection, or invagination, contact
                                                 FDA considered all comments in                          be used to establish special control(s)               with infected semen or vaginal
                                                 proceeding with this proposed order to                  for a multiple-use female condom to                   secretions or vaginal/anal mucosa could
                                                 reclassify single-use female condoms                    provide a reasonable assurance of safety              result in the transmission of sexually-
                                                 from class III to class II.                             and effectiveness.                                    transmitted infections.


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                                                 57178                 Federal Register / Vol. 82, No. 231 / Monday, December 4, 2017 / Proposed Rules

                                                    • Adverse tissue reaction—If the                     contraceptive effectiveness study. On                 determined that a contraceptive
                                                 patient-contacting materials of the                     December 10, 1992, the FC1 Panel                      effectiveness study is necessary to
                                                 device are not biocompatible, local                     expressed concern regarding the high                  mitigate the risks to health related to
                                                 tissue irritation and sensitization,                    failure rates (21.7 percent rate of                   pregnancy for this device type when
                                                 cytotoxicity, or system toxicity could                  pregnancy in the Latin American                       used for vaginal intercourse.
                                                 occur when the device contacts the                      population, 21.4 percent rate of                         A review of published literature
                                                 vagina, cervix, anus, and external male                 pregnancy in U.S. women less than 25                  evaluating the clinical use of the FC2
                                                 and female genitalia.                                   years of age, 5.4 percent total clinical              Female Condom indicates that clinical
                                                    • Ulceration and other physical                      failure rate) of the FC1 Female Condom                failure occurred in less than 5 percent
                                                 trauma—Use of the internal condom                       but recommended approval with                         of device uses (Refs. 4–7). Clinical
                                                 may cause abrasions, lacerations,                       conditions, which included labeling                   failure is defined as the sum total of
                                                 bleeding, or other adverse effects to the               changes aimed at limiting the safety and              acute failure events for the internal
                                                 vaginal, anal, or penile tissue if the                  effectiveness claims and the                          condom. For the FC2 Female Condom,
                                                 device is not designed appropriately.                   development of physician labeling. The                the acute failure events are slippage,
                                                                                                         FC1 Panel based this decision on the                  breakage, misdirection, and
                                                 V. Summary of Data Upon Which the
                                                                                                         fact that no other barrier method existed             invagination. This clinical failure rate
                                                 Reclassification Is Based
                                                                                                         for women to protect themselves against               may decrease with increased user
                                                    FDA has considered and analyzed the                  transmission of STIs if their partner                 experience with internal condoms (Ref.
                                                 following information: The                              would not use a male condom.                          5). The adverse events experienced by
                                                 Manufacturer and User Facility Device                                                                         users of internal condom were
                                                 Experience (MAUDE) database; data                          On January 8, 2008, FDA received a
                                                                                                                                                               infrequent and mild. The results of
                                                 contained in PMAs approved 6 or more                    PMA (P080002) from the Female Health
                                                                                                                                                               these published studies indicate that the
                                                 years before the date of this proposed                  Company for the FC2 Female Condom
                                                                                                                                                               FC2 Female Condom is effective and has
                                                 order (reviewed under section 520(h)(4)                 (an updated version of the Reality
                                                                                                                                                               a favorable safety profile. FDA
                                                 of the FD&C Act, also known as the 6-                   Female Condom, now also referred to as
                                                                                                                                                               identified no new risks or safety and
                                                 year rule) (Ref. 10); the published                     the FC1 Female Condom), comprised of
                                                                                                                                                               effectiveness concerns from the
                                                 literature; and the recommendations of                  a nitrile sheath, nitrile outer ring, and
                                                                                                                                                               published literature that it did not
                                                 the Classification Panel and FC1 and                    polyurethane inner ring. Data provided
                                                                                                                                                               previously identify through its review of
                                                 FC2 Panels.                                             in this PMA demonstrated that the FC2                 the PMAs or either of the prior
                                                    Since 1993, the Center for Devices                   Female Condom is an effective barrier to              Obstetrics and Gynecology Devices
                                                 and Radiological Health (CDRH) has                      viral particles, is biocompatible, has                Panel (‘‘The Panel’’) discussions of the
                                                 received one medical device report                      acceptable mechanical properties, and                 female condom.
                                                 (MDR) regarding an adverse event                        has comparable rates of total clinical                   FDA acknowledges that the available
                                                 associated with the use of an internal                  failure (2.18 percent) when compared to               valid scientific evidence, including the
                                                 condom. This MDR reported injury                        the FC1 Female Condom (2.92 percent).                 review of the MAUDE database,
                                                 following off-label use of the FC1                      On December 11, 2008, CDRH convened                   previous PMA approvals and The Panel
                                                 Female Condom during anal                               the Obstetrics and Gynecology Devices                 discussions, and the published
                                                 intercourse; the FC1 Female Condom is                   Panel (referred to as the ‘‘FC2 Panel’’) in           literature, primarily discuss use of
                                                 indicated for vaginal intercourse.                      2008 to discuss the safety and                        internal condoms for vaginal
                                                 Considering the number of internal                      effectiveness of the FC2 Female                       intercourse. FDA believes that with the
                                                 condoms distributed in the United                       Condom. The FC2 Panel recommended                     exception of pregnancy, the risks
                                                 States since 1993 (approximately 3 to 4                 approval of the device with conditions,               associated with internal condoms for
                                                 million per year), the number of adverse                which included labeling changes aimed                 vaginal intercourse are the same as
                                                 events reported is low. FDA                             at improving consumer understanding                   those for anal intercourse (Refs. 11–13).
                                                 acknowledges that because internal                      of possible failure modes of the FC2                  Accordingly, FDA has tentatively
                                                 condoms are over-the-counter devices,                   Female Condom and the outcomes of                     determined that special controls can be
                                                 adverse events may be under reported.                   the acute failure modes study. The FC2                established, in combination with
                                                    Starting in 1989, several Panel                      Panel found that the acute failure modes              general controls, which will provide
                                                 meetings were held to discuss the safety                study comparing the FC2 Female                        reasonable assurance of the safety and
                                                 and effectiveness of the internal                       Condom to the FC1 Female Condom                       effectiveness of internal condoms used
                                                 condom. During the March 7, 1989,                       provided a reasonable assurance of the                for anal intercourse.
                                                 meeting, the Classification Panel                       safety and effectiveness for the FC2                     Based on its review of the FC1 and
                                                 recommended that the internal condom                    Female Condom. Additionally, the FC2                  FC2 Female Condom PMAs; the
                                                 be classified into class III due to the                 Panel did not believe a contraceptive                 discussions of the Classification Panel,
                                                 absence of testing and clinical medical                 effectiveness study was needed to                     FC1 Panel, and FC2 Panel on the safety
                                                 data regarding the safety and                           demonstrate reasonable assurance of                   and effectiveness of the internal
                                                 effectiveness of the device. On January                 safety and effectiveness because of the               condom; and peer-reviewed published
                                                 31 and December 10, 1992, the                           similarities in design between the FC2                literature, FDA has tentatively
                                                 Obstetrics and Gynecology Devices                       and FC1 Female Condoms and the                        determined that available nonclinical
                                                 Panel (referred to as the ‘‘FC1 Panel’’)                results of the acute failure modes study,             and clinical performance data support
                                                 was convened to discuss the safety and                  which demonstrated comparable rates of                that the risks associated with the
ethrower on DSK3G9T082PROD with PROPOSALS




                                                 effectiveness of the FC1 Female Condom                  clinical failure between the two female               internal condom are well understood
                                                 and provide recommendations to FDA                      condoms. However, the FC2 Panel noted                 and can be mitigated through special
                                                 regarding a specific PMA application                    that the recommendation to not require                controls, including performance testing
                                                 (P910064). During these meetings, the                   a contraceptive effectiveness study                   and labeling. FDA has also tentatively
                                                 FC1 Panel discussed the available                       applied only to the FC2 Female Condom                 determined that the identified
                                                 nonclinical and clinical data on the FC1                and not other female condoms. As                      mitigation measures can be used to
                                                 Female Condom, which included an                        outlined in the proposed special                      establish special controls, in addition to
                                                 acute failure modes study and                           controls in section VI, FDA has                       general controls, which are necessary to


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                                                                               Federal Register / Vol. 82, No. 231 / Monday, December 4, 2017 / Proposed Rules                                                                                    57179

                                                 provide a reasonable assurance of safety                                   intercourse, clinical testing evaluates                                       FDA also believes that comprehensive
                                                 and effectiveness for this device type.                                    the cumulative pregnancy rate based on                                     labeling describing risks and mitigation
                                                 FDA believes that premarket                                                a contraceptive effectiveness study.                                       measures associated with the single-use
                                                 notification and establishment of special                                     To mitigate the risk of STI due to                                      internal condom must be listed. When
                                                 controls will allow for assessment of the                                  contact with infected semen or vaginal                                     the device is indicated for vaginal
                                                 design and materials of single-use                                         secretions or vaginal/anal mucosa, FDA                                     intercourse, the labeling must include a
                                                 internal condoms through completion of                                     believes that a viral penetration study is                                 contraceptive effectiveness table
                                                 a risk analysis, biocompatibility testing,                                 needed to demonstrate that the device is                                   comparing typical use (actual use of the
                                                 mechanical performance testing, viral                                      an effective barrier to STIs.                                              method, including inconsistent and
                                                 penetration testing, and clinical                                             In addition to clinical testing and                                     incorrect use) and perfect use (when
                                                 performance testing and sufficient                                         viral penetration testing to mitigate the                                  used correctly 100 percent of the time)
                                                 labeling. FDA, on its own initiative, is                                   risks of pregnancy and STI, FDA                                            pregnancy rates of the device to other
                                                 proposing to reclassify this                                               believes that the device must                                              available methods of birth control. The
                                                 postamendments class III device type                                       demonstrate that it performs as intended                                   labeling must also list the adverse
                                                 into class II.                                                             under the anticipated conditions of use                                    events associated with the device,
                                                                                                                            (i.e., vaginal and/or anal intercourse).                                   including potential transmission of
                                                 VI. Proposed Special Controls                                              Mechanical testing of the device must
                                                                                                                                                                                                       infection, adverse tissue reaction, and
                                                    FDA believes that the following                                         demonstrate that the device can
                                                                                                                                                                                                       ulceration or other physical trauma.
                                                 special controls, together with general                                    withstand forces under anticipated use
                                                                                                                                                                                                       Because the physical properties of the
                                                 controls, address the risks to health and                                  conditions by evaluation of the tensile,
                                                                                                                                                                                                       device may be adversely affected by the
                                                 provide reasonable assurance of safety                                     tear, and burst properties of the device.
                                                                                                                                                                                                       use of personal lubricants, the labeling
                                                 and effectiveness to mitigate the risks to                                 Compatibility testing with personal
                                                                                                                                                                                                       must specify whether the device is
                                                 health described in section V for the                                      lubricants must determine whether the
                                                                                                                            physical properties of the device are                                      compatible with additional types of
                                                 aforementioned single-use internal
                                                                                                                            adversely affected by use of additional                                    personal lubricants (e.g., water-based,
                                                 condoms.
                                                    The risks of pregnancy and STI are                                      lubricants. Furthermore, shelf-life                                        silicone-based). Finally, the labeling
                                                 the most clinically significant risks of                                   testing must demonstrate that the device                                   must specify an expiration date to
                                                 the single-use internal condom when                                        maintains its performance                                                  ensure that the device performs as
                                                 used for vaginal and/or anal intercourse.                                  characteristics and the packaging of the                                   intended over the stated shelf-life.
                                                 Clinical testing is necessary to mitigate                                  device maintains its integrity for the                                        Table 1 shows how FDA believes that
                                                 these risks to health. Clinical testing                                    duration of the proposed shelf-life. The                                   the risks to health identified in section
                                                 evaluates the rate of total clinical failure                               risk of an adverse tissue reaction due to                                  IV can be mitigated by the proposed
                                                 of the device and the rate of individual                                   the patient-contacting materials of the                                    special controls. This reclassification
                                                 failure modes (slippage, breakage,                                         device is an additional risk of the single-                                order and the identified special
                                                 misdirection, invagination, and other                                      use internal condom when used for                                          controls, if finalized, would provide
                                                 failure modes as appropriate) when the                                     vaginal and/or anal intercourse. In order                                  sufficient detail regarding FDA’s
                                                 device is used as intended (i.e., during                                   to mitigate this risk, FDA believes the                                    requirements to reasonably assure safety
                                                 vaginal and/or anal intercourse). When                                     device must demonstrate                                                    and effectiveness of single-use internal
                                                 the device is indicated for vaginal                                        biocompatibility.                                                          condoms.

                                                                        TABLE 1—RISKS TO HEALTH AND MITIGATION MEASURES FOR SINGLE-USE INTERNAL CONDOMS
                                                                                                                Identified risks to health                                                                                     Mitigation measures

                                                 Pregnancy .........................................................................................................................................................   Contraceptive effectiveness study.
                                                                                                                                                                                                                       Acute failure modes study.
                                                                                                                                                                                                                       Nonclinical performance testing.
                                                                                                                                                                                                                       Shelf-life.
                                                                                                                                                                                                                       Labeling.
                                                 Transmission of Infection ..................................................................................................................................          Acute failure modes study.
                                                                                                                                                                                                                       Viral penetration study.
                                                                                                                                                                                                                       Nonclinical performance testing.
                                                                                                                                                                                                                       Shelf-life.
                                                                                                                                                                                                                       Labeling.
                                                 Adverse tissue reaction .....................................................................................................................................         Biocompatibility.
                                                                                                                                                                                                                       Labeling.
                                                 Ulceration and other physical trauma ...............................................................................................................                  Acute failure modes study.
                                                                                                                                                                                                                       Nonclinical performance testing.
                                                                                                                                                                                                                       Shelf-life.
                                                                                                                                                                                                                       Labeling.
ethrower on DSK3G9T082PROD with PROPOSALS




                                                 VII. Analysis of Environmental Impact                                      nor an environmental impact statement                                      subject to review by the Office of
                                                                                                                            is required.                                                               Management and Budget (OMB) under
                                                   The Agency has determined under 21                                                                                                                  the Paperwork Reduction Act of 1995
                                                 CFR 25.34(b) that this action is of a type                                 VIII. Paperwork Reduction Act of 1995
                                                                                                                                                                                                       (44 U.S.C. 3501–3520). The collections
                                                 that does not individually or                                                                                                                         of information in part 807, subpart E,
                                                                                                                              This proposed order refers to
                                                 cumulatively have a significant effect on                                                                                                             have been approved under OMB control
                                                                                                                            currently approved collections of
                                                 the human environment. Therefore,                                          information found in FDA regulations.                                      number 0910–0120; the collections of
                                                 neither an environmental assessment                                        These collections of information are                                       information in 21 CFR part 814,


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                                                 57180                 Federal Register / Vol. 82, No. 231 / Monday, December 4, 2017 / Proposed Rules

                                                 subparts A through E, have been                         Food and Drug Administration                             (1) Clinical performance testing must
                                                 approved under OMB control number                       Modernization Act of 1997,’’ issued on                evaluate the following:
                                                 0910–0231; and the collections of                       August 9, 2000. Available at https://
                                                                                                         www.fda.gov/downloads/MedicalDevices/                    (i) Rate of clinical failure of the device
                                                 information under 21 CFR part 801 have                                                                        and rate of individual failure modes of
                                                                                                         DeviceRegulationandGuidance/
                                                 been approved under OMB control                         GuidanceDocuments/ucm073709.pdf.                      the device based on an acute failure
                                                 number 0910–0485.                                          11. Kelvin, E.A., J.E. Mantell, N.                 modes study evaluating the intended
                                                 IX. Proposed Effective Date                             Candelario, et al., ‘‘Off-Label Use of the            use (vaginal and/or anal intercourse);
                                                                                                         Female Condom for Anal Intercourse Among
                                                    FDA proposes that any final order                    Men in New York City.’’ American Journal of
                                                                                                                                                               and
                                                 based on this proposed order become                     Public Health, 101(12):2241–2244, 2011.                  (ii) Cumulative pregnancy rate when
                                                 effective 30 days after the date of its                    12. Gross, M., S.P. Buchbinder, S. Holte, et       using the device based on a
                                                 publication in the Federal Register.                    al., ‘‘Use of Reality ‘Female Condoms’ for            contraceptive effectiveness study (when
                                                                                                         Anal Sex by US Men Who Have Sex With
                                                 X. References                                                                                                 the device is indicated for vaginal
                                                                                                         Men. HIVNET Vaccine Preparedness Study
                                                                                                         Protocol Team.’’ American Journal of Public           intercourse).
                                                    The following references are on
                                                 display in Dockets Management Staff                     Health, 89(11):1739–1741, 1999.                          (2) Viral penetration testing must
                                                                                                            13. Renzi, C., S.R. Tabet, J.A. Stucky, et al.,    demonstrate the device is an effective
                                                 (see ADDRESSES), and are available for
                                                                                                         ‘‘Safety and Acceptability of the Reality             barrier to sexually transmitted
                                                 viewing by interested persons between                   Condom for Anal Sex Among Men Who Have
                                                 9 a.m. and 4 p.m., Monday through                       Sex With Men.’’ AIDS, 17(5):727–731, 2003.
                                                                                                                                                               infections.
                                                 Friday; most are available electronically                                                                        (3) Nonclinical performance testing
                                                 at https://www.regulations.gov. FDA has                 List of Subjects in 21 CFR Part 884                   must demonstrate that the device
                                                 verified the Web site addresses, as of the                                                                    performs as intended under anticipated
                                                 date this document publishes in the                       Medical devices.
                                                                                                           Therefore, under the Federal Food,                  conditions of use. The following
                                                 Federal Register, but Web sites are                                                                           performance characteristics must be
                                                 subject to change over time.                            Drug, and Cosmetic Act and under
                                                                                                         authority delegated to the Commissioner               evaluated:
                                                    1. P910064 Summary of Safety and
                                                 Effectiveness Data (SSED).
                                                                                                         of Food and Drugs, it is proposed that                   (i) Mechanical testing must
                                                    2. P940033 Premarket Approval Notice (60             21 CFR part 884 be amended as follows:                demonstrate the device can withstand
                                                 FR 30310, June 8, 1995).                                                                                      forces under anticipated use conditions,
                                                    3. P080002 SSED is available on FDA’s                PART 884—OBSTETRICAL AND                              include evaluation of tensile, tear, and
                                                 Web site at https://www.accessdata.fda.gov/             GYNECOLOGICAL DEVICES                                 burst properties of the device.
                                                 cdrh_docs/pdf8/P080002B.pdf.
                                                    4. Joanis, C., M. Beksinska, C. Hart, et al.,        ■ 1. The authority citation for part 884                 (ii) Compatibility testing with
                                                 ‘‘Three New Female Condoms: Which Do                    continues to read as follows:                         personal lubricants must determine
                                                 South-African Women Prefer?’’                                                                                 whether the physical properties of the
                                                                                                           Authority: 21 U.S.C. 351, 360, 360c, 360e,
                                                 Contraception, 83(3):248–254, 2011.                                                                           device are adversely affected by use of
                                                                                                         360j, 360l, 371.
                                                    5. Beksinska, M., J. Smit, C. Joanis, et al.,
                                                                                                                                                               additional lubricants.
                                                 ‘‘Practice Makes Perfect: Reduction in Female           ■ 2. Amend § 884.5330 in Subpart F by
                                                 Condom Failures and User Problems With                  revising the section heading and                         (4) The device must be demonstrated
                                                 Short-Term Experience in a Randomized                   paragraph (a) to read as follows:                     to be biocompatible.
                                                 Trial.’’ Contraception, 86(2):127–131, 2012.
                                                    6. Beksinska, M.E., G. Piaggio, J.A. Smit, et        § 884.5330    Multiple-use female condom.
                                                                                                                                                                  (5) Shelf-life testing must demonstrate
                                                 al., ‘‘Performance and Safety of the Second-                                                                  that the device maintains its
                                                                                                            (a) Identification. A multiple-use
                                                 Generation Female Condom (FC2) Versus the                                                                     performance characteristics and the
                                                 Woman’s, the VA Worn-of-Women, and the                  female condom is a sheath-like device
                                                                                                                                                               packaging of the device must maintain
                                                 Cupid Female Condoms: A Randomised                      that lines the vaginal wall and is
                                                                                                                                                               integrity for the duration of the shelf-
                                                 Controlled Non-Inferiority Crossover Trial.’’           inserted into the vagina prior to the
                                                 The Lancet Global Health, 1(3):e146–152,                initiation of coitus. At the conclusion of            life.
                                                 2013.                                                   coitus, the device can be reused. It is                  (6) Labeling of the device must
                                                    7. Beksinska, M., R. Greener, I.                     indicated for contraception and                       include:
                                                 Kleinschmidt, et al., ‘‘A Randomized                    prophylactic (preventing the
                                                 Noninferiority Crossover Controlled Trial of                                                                     (i) Contraceptive effectiveness table
                                                 the Functional Performance and Safety of                transmission of sexually transmitted                  comparing typical use and perfect use
                                                 New Female Condoms: An Evaluation of the                infections) purposes.                                 pregnancy rates with the device to other
                                                 Velvet, Cupid2, and FC2.’’ Contraception,               *      *     *     *     *                            available methods of birth control;
                                                 92(3):261–267, 2015.                                    ■ 3. Add § 884.5340 in Subpart F to read
                                                    8. The panel transcript and other meeting                                                                     (ii) Statement regarding the adverse
                                                                                                         as follows:
                                                 materials for the December 11, 2008,                                                                          events associated with the device,
                                                 Obstetrics and Gynecology Devices Panel are             § 884.5340    Single-use internal condom.             including potential transmission of
                                                 available on FDA’s Web site at https://                                                                       infection, adverse tissue reaction, and
                                                                                                            (a) Identification. A single-use
                                                 wayback.archive-it.org/7993/
                                                 20170405192707/https:/www.fda.gov/                      internal condom is a sheath-like device               ulceration or other physical trauma;
                                                 AdvisoryCommittees/                                     that lines the vaginal or anal wall and                  (iii) Expiration date; and
                                                 CommitteesMeetingMaterials/                             is inserted into the vagina or anus prior
                                                 MedicalDevices/MedicalDevices                           to the initiation of coitus. At the                      (iv) Statement regarding compatibility
ethrower on DSK3G9T082PROD with PROPOSALS




                                                 AdvisoryCommittee/                                      conclusion of coitus, it is removed and               with additional types of personal
                                                 ObstetricsandGynecologyDevices/                         discarded. It is indicated for                        lubricants.
                                                 ucm433049.htm.                                          contraception and/or prophylactic                       Dated: November 28, 2017.
                                                    9. The panel transcript and other meeting
                                                 materials for the March 7, 1989, January 31,
                                                                                                         (prevention of sexually transmitted                   Leslie Kux,
                                                 1992, and December 10, 1992, Obstetrics and             infections) purposes.                                 Associate Commissioner for Policy.
                                                 Gynecology Devices Panel.                                  (b) Classification. Class II (special
                                                                                                                                                               [FR Doc. 2017–26011 Filed 12–1–17; 8:45 am]
                                                    10. ‘‘Guidance for Industry and for FDA              controls). The special controls for this
                                                                                                                                                               BILLING CODE 4164–01–P
                                                 Reviewers: Guidance on Section 216 of the               device are:


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Document Created: 2017-12-02 00:40:33
Document Modified: 2017-12-02 00:40:33
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionProposed order.
DatesSubmit either electronic or written comments on the proposed order by February 2, 2018. Please see section IX of this document for the proposed effective date of any final order that may publish based on this proposed order.
ContactMonica Garcia, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. G215, Silver Spring, MD 20993, 240-402-2791, [email protected]
FR Citation82 FR 57174 

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